In the United States, sex discrimination is explicitly outlawed under Title VII of the Civil Rights Act of 1964, a federal law that prohibits employment discrimination on account of race, color, religion, sex, and national origin.
Although this landmark labor law has given nationwide protections for employees and applicants for decades, discrimination on the basis of gender still persists in contemporary workplaces, disproportionately affecting women of color and transgender women.
At Florin|Roebig, our lawyers provide effective legal counsel for women and other marginalized individuals who have experienced unlawful discrimination in the workplace on account of sex, gender identity, or sexual orientation.
Our law firm has put together a comprehensive guide to describe how gender discrimination can occur in the workplace, who is affected, and available legal options for women who have experienced gender-based discrimination at work.
What Is Gender Discrimination?
gender discrimination, is a form of discrimination in which a person is treated differently or unfairly on the basis of a person’s sex/gender.
Under federal law, sex discrimination in employment is illegal. However, there are not currently federal workplace protections for employees who are discriminated against on the basis of gender identity and sexual orientation.
Discrimination against employees for being lesbian, gay, bisexual, or transgender (LGBT) is prohibited in 21 states and Washington D.C.
In addition, many states across the U.S. define gender and sex discrimination differently under their respective laws. For instance, many state courts, agencies, commissions, and attorney generals choose to interpret the existing federal law on gender discrimination protections to include protections against discrimination on account of gender identity and sexual orientation.
Sex discrimination in the workplace became illegal under federal law with the passing of the Civil Rights Act of 1964. This protection extends to individuals who are applying to jobs and current employees.
Types Of Gender Discrimination In The Workplace
- Disparate treatment based on sex
- Sexual harassment
Disparate treatment based on sex generally refers to the different or unjust treatment of an employee on the basis of their sex. Employees may experience this by way of discriminatory hiring or firing practices, pay disparities, or restriction of benefits or promotions because of their sex.
Sexual harassment is an insidious form of sex discrimination that involves any unsolicited behavior (verbal or physical) of a sexual nature that interferes with work performance, affects a person’s employment, or creates a hostile work environment. Examples of sexual harassment and in the workplace can range from inappropriate sexual jokes to the use of sexual slurs and non-consensual touching.
Examples Of Gender Discrimination In The Workplace
Many factors can affect the type of discrimination a woman may experience in the workplace, depending on her place of work, location, and other identifying characteristics of herself and coworkers.
Examples of gender discrimination and harassment include:
- prejudiced treatment in hiring or firing processes on account of gender
- being passed over for a promotion on account of gender; also known as the “glass ceiling”
- getting paid less than a male employee who works the same job
- being subject to unwanted sexual advances, requests for sexual favors, or other forms of sexual harassment
- being given less paid sick leave or denied employee benefits on account of gender
- being written up for a behavior that does not result in disciplinary action when performed by an employee of another sex
- being referred to by a name or gender that you don’t identify with (e.g. a transgender man is referred to as ‘Miss’ or ‘Mrs.’)
- being the subject of derogatory language or slurs on account of being female
Under federal law, gender discrimination is considered illegal under circumstances where the discrimination involves treatment that negatively affects the terms and conditions of your job—which includes:
- job responsibilities
- dress code
- work hours
- starting salary
- performance standards
- vacation days
- sick leave
Discriminatory acts based on gender may not always be perpetrated by men. People of all sexes may act as perpetrators of gender-based discrimination in the workplace, and the gender of the perpetrator does not negate the unlawfulness of employment discrimination.
Intersectional Effects of Gender Discrimination
Gender discrimination in the workplace can have intersectional effects, meaning it’s an issue that can can be further compounded by intersecting social and economic identities, with the greatest impact on women who are multiply marginalized.
African American Women
Data from the U.S. Equal Employment Opportunity Commission (EEOC) shows that black workers are disproportionately affected by workplace discrimination.
Racial discrimination against black workers makes up approximately 26 percent of workplace discrimination claims. Black women, in particular, are vulnerable to experiencing what critical race theory scholar, Kimberlé Crenshaw, calls the “double discrimination” of being discriminated against on the basis of both race and sex.
According to the Economic Policy Institute (EPI), African American women have for centuries had some of the highest levels of labor market participation, yet have historically occupied undervalued positions in the workforce, been disproportionately employed in jobs that are low-wage, and lack benefits such as sick leave, parental leave, and flexible work options.
Latinx And Hispanic Women
Latinx and Hispanic individuals make up about 17 percent of the U.S. labor force, according to the U.S. Bureau of Labor and have some of the highest labor force participation rates.
Latinx and Hispanic women, however, also face what the National Women’s Law Center reports as the greatest pay inequality, relative to all other demographics of women. Like other women of color, Latinas and Hispanic women face structural and systemic barriers in employment and hiring on the basis of both race and gender.
Wage gaps, for instance, impact Latinx and Hispanic women at all education levels, with the most severe wage gaps affecting immigrant Latinas and certain subgroups of Latinas—majority Central American, Dominican, and Mexican women. Latinx and Hispanic women are also subject to higher rates of other forms of racial and gender discrimination, such as harrassment and hiring bias, compared to white female employees.
Asian American Women
The U.S. population of Asian American women is composed of women across all Asian regions, including South, Southeast, and East Asia.
Asian American women are often overlooked when it comes to acknowledging racial bias in the workplace, despite their marked susceptibility to discrimination.
Compared to white women in the workplace, Asian American women are less likely to hold managerial roles and are half as likely to hold executive positions within a company.
Native American Women
Native American women face a number of hardships within and outside of the workplace, just ahead of Latinx women in pay disparities, with disproportionate rates of poverty, chronic illness, and education gaps.
Native American women who face significant pay disparities—making 58 cents for every dollar earned by a white man in the same position, according to recent data—may experience greater difficulty in accessing affordable healthcare, child care, education, and job training.
White women still make less than white males in the same positions on average, despite having higher rates of college education and surpassing the number of college-educated men in the workforce in 2019.
Transgender employees in the workforce make up another group of women who are disproportionately harassed and discriminated against in the U.S. on account of gender identity or expression.
A recent ruling by the Supreme Court of the United States has expanded the protections afforded to employees under Title VII of the Civil Rights Act, holding that employees cannot be discriminated against on the basis of their sexual orientation or gender identity.
Employment discrimination against women who are pregnant is illegal under Title VII, yet continues to be the subject of thousands of discrimination claims each year. Pregnant women may be pressured to step down from a position once they reach a certain point in their pregnancy, or be fired for reasons relating to pregnancy or breastfeeding.
Additional examples of pregnancy discrimination may include denying reasonable accommodations for pregnant women, demoting pregnant employees, and forced time off or restrictions on work hours.
Ways Gender Discrimination Can Affect Women In The Workplace
Gender discrimination in the workplace can have far-reaching effects on a person’s physical, psychological, and emotional health.
It can be upsetting to feel unable to control how you’re treated or viewed by others on account of your gender, and this can affect all aspects of employment, from perceived safety of your work environment to your ability to perform job responsibilities fully and to the best of your abilities.
Effects of gender discrimination on women in the workplace may include:
- decreased productivity
- low self-esteem
- feelings of frustration, anger, or paranoia
- feeling unsafe or fearful
- isolation from other coworkers
- tension between yourself and the perpetrator of the discrimination (e.g. coworkers, supervisor, company)
- mental health and substance abuse issues
- workplace conflict
- pregnancy complications (among pregnant women who experience gender discrimination in the workplace)
How gender discrimination affects a person can vary based on the context of the situation and her own responses to the harassment or discrimination that occurs. Not every women may respond or cope with gender discrimination in the same way.
While some people may feel more confident in their ability to assert their right to equal treatment, others may be more fearful of taking action—a struggle that can also often be influenced by compounding marginalizations, as well as considerations such as the woman’s role in the company and who is perpetrating the discriminatory act(s).
Sex Discrimination Laws
There are several federal and state laws outlining protections against unlawful discrimination for women in the workplace. Statewide laws are specific only to the states in which they have been passed, while federal laws apply to employees nationwide.
Federal Anti-Discrimination Laws
The primary federal law that protects female employees from discrimination on the basis of sex is Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC). This law prohibits discrimination on the basis of sex, race, color, national origin, and religion. It generally applies to employers with at least 15 employees.
The Equal Pay Act of 1963 is a federal law that was passed with the intention of protecting female workers from wage discrimination. Despite this law’s passage, however, the wage gap still exists for women of all racial and ethnic backgrounds today and is frequently fought in legal spaces.
The Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act that explicitly prohibits discrimination against employees on the basis of pregnancy. This includes protections against firing, demoting, or discriminatory hiring on account of being pregnant or intending to become pregnant.
Federal laws such as the Family and Medical Leave Act and Whistleblower Protection Act also offer workplace protections for female employees, providing a right to family and medical leave for workers and protections for women who report discrimination in the workplace.
Examples Of State Anti-Discrimination Laws
State laws on gender discrimination in the workplace vary by state, with some states offering more or less protections for women on the basis of gender identity and sexual orientation.
Michigan and Pennsylvania, for instance, are currently the only states that interpret existing sex discrimination laws to include the prohibition of discrimination on the basis of both gender identity and sexual orientation.
In 26 states, it is currently legal to discriminate against employees on the basis of gender identity and sexual orientation, putting LGBTQ+ women at greater risk for the consequences of gender-based discrimination—and a more difficult path to legal recourse.
In Florida, organized efforts by Equality Florida and a number of legislators are in the process of addressing the current lack of employment protections for Florida LGBTQ+ employees with the Florida Competitive Workplace Act. This bill was first introduced in Congress in 2009. Despite having bipartisan support from 73 legislators, it has yet to be passed into law.
Other states across the nation have similarly struggled to pass state laws prohibiting expanded definitions of gender discrimination in employment. Twenty-six states are currently in federal courts with a ruling to expand the definition of gender discrimination to include gender identity/expression and sexual orientation.
Employee Rights In The Workplace
No one should ever feel obligated to tolerate workplace discrimination on account of her gender. As an employee in the United States, you are entitled to certain protections to ensure equality and equity in the workplace relative to your fellow coworkers, regardless of gender.
Employee rights in the workplace include:
- the right to work in a safe, discrimination-free environment
- the right to report gender discrimination at work to your boss or human resources (HR) personnel
- the right to work if you are pregnant
- the right to equal opportunity for hiring, promotions, and employee benefits available to non-female employees in similar positions
- the right to file a grievance for breach of contract, if you’re a union member
- the right to protest gender discrimination in your workplace
- the right to refuse to follow orders that would make you complicit in workplace discrimination
- the right to resist sexual advances in the workplace, or intervene if you witness an incident of sexual harassment/assault
- the right to make a copy of your personnel file, which may include performance evaluations, pay history, and other information regarding your employment
- the right to testify as a witness in an investigation into discrimination at your workplace
- the right to file a lawsuit against your employer for discrimination
What To Do If You’re Experiencing Gender Discrimination: A Step-By-Step Guide
Experiencing gender discrimination on the job can be an upsetting, often traumatic experience.
If you’ve experiencing discrimination in your workplace on account of your gender, take these steps to determine your legal options:
1. Consult Your Employee Handbook
Employee handbooks typically contain some form of policy against employee discrimination, including discrimination on the basis of gender and/or sexual orientation. Take a look at your handbook to see if there are specific policies outlined regarding discrimination in your workplace, including instructions on how to identify and report discrimination.
2. Document the Discriminatory Act
Once you have identified your employer’s policy on gender discrimination, begin documenting the type of discrimination you or a fellow employee has experienced, including its effects on your work productivity, workplace safety, and witnesses.
Write down everything you can remember regarding the incident(s). No detail is too small or inconsequential. Include times, dates, locations, and the names of all involved.
3. Report The Incident(s) To A Supervisor or Human Resources
Report the discrimination to a member of your employer’s human resources (HR) department, or whomever is responsible for fielding workplace compaints. If you choose to take legal action against your company, it will be beneficial to your case to note that you took the proper steps to report the discrimination internally to the appropriate personnel.
4. Consult An Employment Discrimination Lawyer
Reporting discrimination in the workplace can be an intimidating process. Despite legal protections in place to allow for reporting without retaliation, many people still report being illegally retaliated against in some way.
Examples of illegal retaliation include:
- cutting work hours
- docked pay
- increased scrutiny
- verbal or physical abuse
- defamation of character
- making an employee’s work more challenging
- wrongful termination
If you’ve reported the discriminatory act to someone in your company without results, or have faced retaliation for reporting, your wisest move would be to contact an employment lawyer.
The Equal Employment Opportunity Commission (EEOC), the federal agency that manages employment descrimination claims, is overloaded with thousands of claims each year and may not be able to give your case the attention nor the expediency it deserves.
An employment lawyer can explain your rights, evaluate the details of your situation, and help you file a claim or lawsuit against your employer if your case qualifies for legal action.
Statistics On Gender Discrimination In The U.S.
According to the U.S. Bureau of Labor Statistics (BLS), more than 49 million women in the United States were employed as full-time wage or salaried workers in 2016. Women make up a large share of jobs in the health services, education, and social services industries—making up a smaller portion of positions in technical, professional, scientific, and construction industries.
Despite being more likely to have a college degree than men in the U.S., women are still fighting for equal pay for equal work and make up the majority of the low-wage workforce. In 2016, women on average made 81 cents for every dollar earned by men—a number that dips even further among Hispanic, Black, Latinx, and Native American female employees.
In a survey conducted by Pew Research Center, 42 percent of U.S. female employees reported experiencing gender-based discrimination on the job. Twenty-three percent of women reported being treated as less competent than male coworkers on account of their gender, and 25 percent reported earning less than a male coworker performing the same job.
Discrimination rates among women in the workplace become even greater when considering factors such as employment industry, racial and ethnic background, and sexual orientation of the employee.
Additional statistics on gender discrimination in the United States are as follows:
- More than half of employed black women reported experiencing some form of gender discrimination at work, compared to 40 percent of white and hispanic women.
- Over one-third of women in a 2018 survey reported being sexually harassed at work.
- The majority of incidents involving workplace harassment go unreported.
- Pregnancy discrimination in 2018 cost employers over $16 million in monetary benefits to employees who’d filed pregnancy discrimination claims with the EEOC.
Legal Remedies for Workplace Gender Discrimination
If you’ve experienced unjust treatment in the workplace due to your gender, you may have the right to pursue legal recourse.
By filing a discrimination claim, you may be able to recover the following remedies:
- compensatory damages (emotional pain and suffering)
- punitive damages
- back pay
- front pay
- attorney fees
- court costs
The process of filing a complaint or lawsuit for workplace discrimination can vary by state. If you wish to take legal action against an employer or employee for gender discrimination—the employment lawyers of Florin|Roebig can help you determine your legal options.
Certain time restrictions may apply if you wish to file a discrimination claim. It’s best to contact a lawyer as soon as possible to ensure you have the opportunity to pursue legal recourse, as discrimination claims in your state may be subject to a state of limitations. Discrimination claims are filed to the EEOC or your state’s Fair Employment Practices Agency (FEPA).
By contacting our office, we can schedule a free case evaluation with one of our seasoned employment discrimination lawyers to discuss the details of your case and help you seek justice for unlawful treatment.
Our lawyers serve clients across the U.S. out of office locations in Florida, Texas, Colorado, and Minnesota. With a proven track record in protecting and preserving women’s rights in the workplace and beyond, our team of lawyers has the expertise to be strong advocates for your right to a safe and just working environment.
Contact Florin|Roebig today to discuss the details of your case and begin the process of filing a gender discrimination lawsuit.