Sex/Gender Discrimination in California

No one can deny that society as a whole has come a long way in terms of how we view sexism in the workplace. By and large, things have changed for the better, and certain patterns of toxic behavior that were once considered normal are no longer acceptable. So why is it that in spite of all this progress we’ve made over the years, sex-based discrimination continues to crop up as a constant issue in the average American work environment?

Clearly we still have a long way to go. While this type of unfair treatment can sometimes be direct and even aggressive, other times it’s not so obvious. When bad habits and social indiscretions are allowed to go unchecked for decades, they become so ingrained in the fabric of our culture that even the most astute observer may blindly deem them as “normal” when in fact they are a violation of your rights.

What Is Sex and Gender Discrimination?

In a general sense, sex-based discrimination involves treating someone (such as an employee or a job applicant) differently or unfavorably based purely on that person’s sex or gender. This can include anything from hiring, firing, promoting, determining salary, assigning job responsibilities, establishing benefits, or any other term or condition relating to a job. 

Although the terms sex and gender are oftentimes used interchangeably, they don’t quite have the same meaning. A person’s “sex” refers to whether they are biologically male or female, while a person’s “gender” refers to which sex they most closely identify with. Therefore, discrimination due to either biological sex, gender expression, gender identity, and/or sexual orientation is illegal.  

Laws Protecting Individuals from Sex-Based Discrimination

There are two main laws to consider when it comes to sex discrimination in the workplace. On a federal level, the Civil Rights Act of 1964 offers protection against discrimination based on sex, race, color, religion, and national origin. This law applies to employers with 15 or more employees, and as of recently has expanded its definition of sex to include sexual minorities and members of the LGBTQ community.

Under California law, the Fair Employment and Housing Act (FEHA) has a broader scope than the Civil Rights Act in that it applies to more employers, including those with 5 employees or more. It also has a longer history of explicitly protecting workers who have been discriminated against because of their gender identity, gender expression, or sexual orientation. 

Moreover, under FEHA, discrimination based on “sex” is not just defined as employers treating men and women differently but also includes unequal treatment based on pregnancy, childbirth, breastfeeding, and any related medical conditions.

Other state and federal laws include the California Equal Pay Act, the Pregnancy Discrimination Act, and the Family and Medical Leave Act. 

Different Types of Sex Discrimination

Sex or gender discrimination comes in many forms and can arise in a variety of scenarios. Sometimes it’s blatantly obvious; other times it may be subtle, underhanded, and hardly even noticeable, yet over time can weigh down on a person’s dignity and affect their job performance. 

Sex-based discrimination is split into two categories. One relates to sex or gender discrimination as it relates to the terms and conditions of your employment – meaning an employer makes employment decisions based on a person’s sex or gender. The other deals with harassment – including sexual harassment in the workplace and a hostile work environment. Here are some of the most common manifestations of each:
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1. Employment Decisions Based on Sex or Gender

Unequal Pay - The wage gap is still a problem today. Oftentimes, an employer will pay men and women different salaries, even though they may have the same qualifications, duties, status, job title, or experience. For example: 

• A female employee works her way up from sales to management over the course of two years, including many hours of overtime, only to find out that a newly hired male manager with the same qualifications and duties is getting paid more
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Unfair Hiring Practices and Interview Questions - Employers may hire or refuse to hire someone based purely on their sex or gender. Oftentimes these biases are formed before applicants even apply for an open position. For example:

• An employer posts an available position that either directly or indirectly discourages people of a specific sex or gender identity from applying for the position, such as a “females only” ad for a restaurant position
• A female candidate interviewing for a management position is asked if she plans on having children in the near future
• A company chooses to hire a male candidate over a transgender male candidate who is clearly more qualified for the position
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Promotional Bias - Employees are not always given the same advancement opportunities because of their sex or gender. For example: 

• A woman is denied a promotion after being given a negative performance review that describes her as too “aggressive,” whereas other male employees who behave in the same manner are lauded for displaying “leadership skills”
• An openly gay employee has worked at a company for several years and has received glowing reviews, yet each of the five times he’s applied for a promotion, the position has been given to a less qualified candidate
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Positional Stereotypes - Gender stereotypes often support the erroneous idea that males and females are only fit for certain job responsibilities or duties. For example:

• A male who applies for a secretarial job with adequate credentials has a harder time getting the position than a female applicant with the same skillset
• An office manager only asks men to lift heavy items and only asks women to perform administrative duties
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2. Harassment

Sexual Harassment - This occurs when an employee is subject to unwelcome sexual advances, requests for sexual favors, or other verbal or physical harassment of a sexual nature. Examples of this include but aren’t limited to:

• Unwanted or inappropriate touching
• Staring or leering
• Sending unwanted sexual photos or messages to someone online or via text
• Unnecessary physical contact, such as deliberately brushing up against a person
• Discussing sexual relations/stories/fantasies at work
• Requests for sex or sexual favors
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It may manifest itself in quid pro quo form (“this for that”), which usually involves a person in power (such as a boss or a supervisor) explicitly or implicitly offering an employment opportunity, or threatening to take it away, in return for that employee's satisfaction of a sexual demand. For example:

• A manager interviewing a female candidate for a bartending position tells her that he will hire her if she agrees to have dinner with him “and maybe something more”
• A graphic designer who is due for a raise is working late one night on a big project with her supervisor, who asks her out for a drink afterwards. She accepts, they go out, and at the end of the night he tries to kiss her, and she declines. A few weeks later she receives an unfairly negative performance review from him and she never receives her raise

Hostile Work Environment - Harassment doesn’t necessarily have to be sexual in nature (although there is often some crossover); it can include offensive remarks about a person’s sex, sexual orientation, gender identity, or gender expression. This type of behavior is illegal when it is so frequent or severe that it creates a hostile work environment. Examples of this include:

• Frequent derogatory comments about women
• Intrusive questions about someone’s sexual orientation
• Rating attractiveness of coworkers
• Sex or gender based innuendos or comments
• Excluding certain employees from meetings or projects because of their sexual orientation
• Making crude jokes or sharing memes that are derogatory to a certain sex or gender
• Purposefully refusing to use someone’s preferred pronouns or chosen name
• Refusing to hire or terminating someone because of their gender identity
  

Exceptions

While federal and state laws are intended to protect all workers from sex or gender based discrimination, there are, however, limited exceptions. An employer may be able to treat a group of employees differently if it is justified by their particular practice. 

This is known as the “bona fide occupational qualification” (BFOQ) defense – which states that “all or substantially all of the excluded individuals are unable to safely and effectively perform the job in question and because the essence of the business operation would otherwise be undermined.” Justified examples of this include but are not limited to:

• Assigning same-sex childcare specialists or healthcare workers
• Hiring female TSA agents to specifically perform pat-downs on female passengers
• Male clothing designers advertising for male models only
• A restroom attendant’s sex being considered during the hiring process to take into account the restroom customers’ privacy rights
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It should be noted that these exceptions are interpreted very narrowly in the legal system in order to prevent employers from using the BFOQ defense as an excuse for discrimination.

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Holding Employers Accountable for Sex-Based Discrimination

Sex-based discrimination is many things – offensive, outdated, debilitating, infuriating, pathetic, unnecessary, noxious, and unethical – but most importantly, it’s illegal. If you think you have been the victim of this discriminatory conduct, you can hold an employer or prospective employer responsible.

There can be a lot of gray area when it comes to identifying sex and gender discrimination in the workplace, because it’s not always obvious and oftentimes manifests itself in transparent, nuanced, and gradual ways, so hiring an experienced sex discrimination attorney can help you navigate the process and determine whether you have a case.