Gender Discrimination In Workplace: Examples, Types, and Proving

Gender discrimination in the workplace means an employer treating someone or a group (an applicant or employee) unequally, negatively or disadvantageously on the job based on their gender, including sexual orientation.

By Douglas Wade, Attorney

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Table of Contents

1. What is gender discrimination in the workplace?

2. What does gender mean?

3. What laws concern gender discrimination in California?

What is gender discrimination in the workplace?

Gender discrimination in workplace refers to unfair or unequal treatment of individuals based on their gender, gender identity, or gender expression. It occurs when an employee or job applicant is treated less favorably or is subjected to adverse employment actions due to their gender, rather than their qualifications, abilities, or job performance. Gender discrimination can manifest in various ways, including explicit actions, policies, or implicit biases. The following are some examples of gender discrimination in the workplace:

Hiring and Recruitment:

- An employer prefers male candidates over equally qualified female candidates for a traditionally male-dominated position.
- A job advertisement includes gender-specific language that implies a preference for a particular gender.

Pay and Compensation:

- Female employees are consistently paid less than male colleagues for performing the same job with equal skill, effort, and responsibility.
- An employer provides additional benefits or perks to employees of one gender while excluding those of another gender.

Promotion and Career Advancement:

- Qualified female employees are consistently passed over for promotions in favor of less qualified male colleagues.
- An employer maintains a “glass ceiling” that disproportionately hinders the advancement of women into higher-level positions.

Work Environment and Harassment:

- Female employees are subjected to unwelcome advances, comments, or gestures of a sexual nature, creating a hostile work environment.
- An employer fails to address complaints of gender-based harassment or takes no action to prevent or rectify such situations.

Pregnancy and Parental Leave:

- An employer denies or limits job opportunities, promotions, or benefits to employees based on their potential or actual pregnancy.
- Female employees face adverse treatment or barriers to taking maternity leave or returning to work after childbirth.

Gender Stereotyping:
- An employer assumes that women are less capable or committed to their careers based on stereotypes, leading to biased decisions regarding assignments or promotions.
- Dress codes or grooming policies that impose different standards on different genders, reinforcing gender stereotypes or limiting personal expression.

Gender discrimination in workplace can manifest in various other forms and contexts other than those listed above. It is important to note that this kind of discrimination can affect individuals of any gender, including men, women, and non-binary individuals. Please contact our attorney for employer legal advice for addressing and eliminating gender discrimination in the workplace for all employees.

What does gender mean?

As outlined in California Code Section 11030, the following are some common issues involving gender discrimination in the workplace:

Gender Expression: Gender expression refers to how an individual presents or expresses their gender identity to others through their behavior, appearance, clothing, speech, or other forms of self-expression. It encompasses the ways in which society recognizes and interprets gender based on external characteristics.

Gender Identity: Gender identity refers to a person’s deeply-held sense of their own gender, which may or may not align with the sex they were assigned at birth. It is an internal and personal understanding of oneself as male, female, both, neither, or another gender entirely.

Transgender: Transgender is an comprehensive term used to describe individuals whose gender identity is different than the sex they were assigned at birth. It is only recent that transgender became an issue of gender discrimination in the workplace. A transgender person may identify as male, female, or another gender identity that is not strictly male or female. Some transgender individuals may choose to undergo medical interventions, such as hormone therapy or surgeries, as part of their transition to align their physical appearance with their gender identity.

Sex Stereotype: A sex stereotype refers to generalizations or expectations about how individuals should behave or express themselves based on their assigned sex at birth. These stereotypes often perpetuate rigid and limited ideas about gender roles and can lead to discrimination or unfair treatment based on a person’s gender identity or expression.

Transitioning: Transitioning refers to the process by which individuals may undergo social, legal, or medical changes to align their physical appearance, gender expression, and official documentation with their gender identity. Transitioning is challenging to prove for gender discrimination in the workplace. Transitioning can involve various aspects such as changing one’s name and pronouns, undergoing hormone therapy, or pursuing gender-affirming surgeries. It is a highly individual and personal journey that varies for each transgender person.

What laws concern gender discrimination in California?

In California, gender discrimination in the workplace is prohibited by several key laws, including the Fair Employment and Housing Act (FEHA), the Equal Pay Act of 1963, and Title VII of the federal Civil Rights Act of 1964. Each of these laws plays a vital role in safeguarding employees from gender-based discrimination and promoting equality in the workplace.

Fair Employment and Housing Act (FEHA):

The FEHA is a state law that provides extensive protections against various forms of discrimination in the workplace, including gender discrimination, within the employment context. Under the FEHA, employers are prohibited from engaging in discriminatory practices based on gender, gender identity, gender expression, or pregnancy-related conditions. This law applies to employers with five or more employees and covers a wide range of employment practices, including hiring, promotions, wages, benefits, and termination.

The FEHA goes beyond mere prohibition and requires employers to provide reasonable accommodations for pregnancy-related conditions, such as allowing modified work duties or temporary leaves of absence. Additionally, it obligates employers to take appropriate measures to prevent and address harassment based on gender or other protected characteristics.

Equal Pay Act of 1963:

The Equal Pay Act of 1963 is a federal law that aims to ensure equal pay for equal work, regardless of an individual’s gender. The law makes it illegal to pay employees of one gender less than employees of another gender for performing significantly similar work under similar conditions. It encompasses wages, salary, bonuses, benefits, and other forms of compensation. An employer violating the Equal Pay Act is a viable claim for employees’ claim of gender discrimination in the workplace.

Under the Equal Pay Act, employers are required to provide equal pay to employees who perform largely similar work that requires equal skill, effort, and responsibility, and is performed under similar working conditions. Exceptions to pay disparities can only be justified by factors such as seniority, merit, productivity, or other legitimate factors unrelated to gender.

Title VII of the Civil Rights Act of 1964:

Title VII is a federal law that prohibits employment discrimination in the workplace based on several protected characteristics, including sex (which includes gender). Employers covered by Title VII (those with 15 or more employees) are prohibited from discriminating against employees or job applicants based on their gender, including issues related to hiring, firing, promotions, compensation, and terms of employment.

Title VII’s provisions specifically forbid discrimination in the workplace by employers from engaging in various discriminatory practices, such as:

Adverse employment actions: Employers cannot take adverse employment actions (e.g., termination, demotion, refusal to hire) based on an individual’s gender.
Harassment: Employers must prevent and address gender-based harassment, including unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that creates a hostile work environment.
Retaliation: Employers cannot retaliate against employees who oppose gender discrimination, file complaints, or participate in investigations related to gender-based discrimination.
Sex stereotypes: Employers are prohibited from making employment decisions based on stereotypes or assumptions about how individuals should behave or present themselves according to societal expectations of gender.

It is important to note that California’s employment laws often provide additional protections beyond those offered by federal laws, as the state has been proactive in addressing workplace discrimination. Employers in California must comply with both federal and state laws, ensuring a workplace that upholds gender equality and fosters an inclusive environment for all employees.

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Gender Discrimination In Workplace: Examples, Types, and Proving

What is gender discrimination in the workplace?

What does gender mean?

What laws concern gender discrimination in California?

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