Gender (or Sex) Discrimination

Gender discrimination involves differential treatment or harassment of an employee on the basis of their gender or sex.

Gender discrimination can occur either because an employee is a man or woman or because an employee shows—or fails to show—stereotypical characteristics of a man or woman. In other words, gender discrimination can occur either because an employee is a man/woman or because an employee is seen as too masculine or feminine, or insufficiently masculine or feminine.

In 2020 the United States Supreme Court held that “An employer who fires an individual merely for being gay or transgender violates Title VII.”

It is now illegal to discriminate against applicants or employees because of their gender identity or sexual orientation. It is also illegal to retaliate against a person because they complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

While most people think of gender discrimination as occurring between a male superior and female subordinate, gender discrimination can occur between individuals of any gender or the same gender. In the same way, policies that favor either men or women may be discriminatory. A type of policy that could benefit women is allowing women more flexible work schedules, based on the idea that they are more likely to have childcare responsibilities, but not allowing men the same flexibility.  This policy would be discriminatory because it favors one gender over another and is based on stereotypes about men’s and women’s roles in the family.

Workplace discrimination usually occurs between an employer and employee, employees with levels of seniority (superior and subordinate), or co-workers. In some instances, however, an employee can experience gender discrimination by a client, vendor, or subcontractor, particularly if an employer knows about the discrimination and has not taken action to prevent it from recurring.

There are many forms of gender discrimination. It can be different, less favorable treatment at any stage in the employment process, including help-wanted ads, interviews, pre-employment testing, hiring, job assignments, shift assignments, promotions, compensation, benefits, job training, layoffs or termination.

This kind of discrimination may be very direct, such as when an employee is not hired or is fired because of gender or gender characteristics/stereotypes. It can also be more subtle, such as an employer’s policy that inherently discriminates against members of a certain gender without a real business need. For example, if the employer requires all employees to meet certain physical lifting requirements, women may be affected by this rule more than men. For an employer to legally maintain such a policy, the physical lifting requirements must be clearly related to the legitimate demands of that particular job.

Gender discrimination may come from supervisors, co-workers or in limited circumstances from other individuals, such as vendors, clients or subcontractors. If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, these practices are also against the law.

​Gender discrimination can also be harassment experienced by an employee because of their gender or gender characteristics/stereotypes. Harassment can include “jokes” or comments about a particular gender or sex, derogatory comments about an employee’s sex or gender or gender characteristics, hostile comments or actions toward the employee based on his sex or gender, the display of drawings or pictures that negatively or lewdly portray people of a particular gender, or any other action that creates an intimidating, hostile, or offensive work environment, or interferes with the employee’s work performance. To be considered discrimination, harassing actions must be “severe and pervasive.” In other words, an isolated incident or “offhand teasing” would probably not be enough for a lawsuit.

It is illegal for an employer to take any adverse or punitive actions against an employee for complaining about gender discrimination or other employment law violations. “Adverse actions” include termination, demotion, discipline, reduction of pay, or any other actions that would cause the average person to avoid making such a complaint. Adverse actions may occur outside the context of work and include threats, including threats of deportation or reporting a person to government authorities.

It is important to note that the discrimination does not have to be proven for the complaining employee to be protected against retaliation. In other words, if an employee makes a complaint about gender discrimination and is fired a few days later, the employer may be liable for retaliation even if no court or government agency finds that the underlying gender discrimination actually occurred.