published April 17, 2023

By Nancy Hatch Woodward

Protecting Your Business from Gender & Sex Discrimination - What Employers Need to Know


Gender discrimination, also known as sex discrimination, is an issue that employers must take seriously. It is unlawful to have any type of preference based on sex, gender identity, gender expression, or other related criteria in the workplace. Employers must also protect themselves from potential gender discrimination lawsuits by understanding the laws, developing appropriate policies and procedures, and consistently monitoring the workplace.

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating and enforcing claims made against employers for gender discrimination. It is important for employers to be aware of the EEOC's definitions of gender discrimination and the various types of discrimination that are considered unlawful. Common types of gender discrimination include disparate treatment (e.g. unequal pay, job losses, or job assignments), sexual harassment, and failure to provide reasonable accommodation for pregnancy or related medical conditions.

To protect themselves from potential gender discrimination lawsuits, employers need to ensure that their workplace policies and practices are fair, non-discriminatory, and comply with applicable laws. This includes developing and implementing an anti-discrimination/harassment policy and educating employees on the policy. Additionally, employers should review job postings, job descriptions, and interview questions to avoid any potential discriminatory language or practices.

Furthermore, employers should be aware of their responsibilities in the event that a gender discrimination complaint is filed against them. This includes conducting a prompt, thorough, and impartial investigation into the complaint and taking prompt action to address any violations. As such, employers should have a trained representative to handle the complaint, a written procedure for handling workplace discrimination complaints, and a process to ensure that employees understand they have a right to file a complaint.

In summary, employers must understand and adhere to the laws regarding gender discrimination and take steps to protect themselves from potential lawsuits. This includes developing an anti-discrimination/harassment policy and providing employees with training on the policy, reviewing job postings, job descriptions, and interview questions for discriminatory language, and having a trained representative to handle complaints. Employers must be prepared to promptly and thoroughly investigate any claims of gender discrimination and take appropriate action to address any violations. In doing so, employers can help protect themselves from potential gender discrimination lawsuits.

What is Gender Discrimination?

Gender discrimination is a form of discrimination that results based on gender or sex. This type of discrimination is illegal under Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Commission (EEOC).

Example of Gender Discrimination

Examples of gender discrimination include denying women equal pay for the same job or denying them advancement opportunities based on gender or sex. Other examples of gender discrimination include harassment, such as sexual harassment, or making decisions based on gender stereotypes.

Consequences of Gender Discrimination

Gender discrimination in the workplace can lead to serious repercussions, including lost wages, emotional distress, and potential legal action. Furthermore, companies that have been found guilty of gender discrimination can suffer reputational damage, leading to a decrease in the number of customers and employees.

Government Enforcement of Gender Discrimination Laws

The EEOC is responsible for enforcing Title VII of the Civil Rights Act, which prohibits gender discrimination in the workplace. In addition, state governments can also bring action against employers who have violated gender discrimination laws.

Employers Need to Protect Themselves from Gender Discrimination Liability

Employers should take proactive steps to protect themselves from gender discrimination liability. These steps include implementing policies and procedures that prohibit discrimination, offering training on sexual harassment and gender discrimination, and conducting investigations into all complaints of gender discrimination. Additionally, employers should ensure that all employees receive equal pay for equal work.

<<These appear to be straightforward statistics, but what is interesting is that no one can be certain about what they mean. Do these figures support the facts that the Equal Employment Opportunity Commission (EEOC) in 2004 received more than 24,000 charges of sex-based discrimination versus fewer than 22,000 in 1992 and in 2004 recovered more than $100 million in monetary benefits versus almost $31 million in 1992? Not really, because no one is completely certain what is meant by "gender discrimination."

What is gender discrimination?

According to Michael J. Lotito, a partner in the San Francisco law office of Jackson Lewis, people now see gender discrimination as code for sexual orientation discrimination, which few jurisdictions recognize. For example, a recent Sixth Circuit Appeals Court decision, Barnes v. the City of Cincinnati, found for the plaintiff, a police officer who was being considered for promotion to sergeant. While he was participating in a three-month training program to see if he was suitable for the position, he was also undergoing a gender change. He began to act more like a female, getting a French manicure and wearing makeup. The police department decided he was not sergeant material because he did not have "command presence."

"Gender discrimination cases also involve cases about stereotypes, how men and women should behave," says Lotito. "There have been cases involving a restaurant server who was harassed because several of his male co-workers found him effeminate, and a woman, who after being with a casino for years with a perfect record, was told that she had to start wearing makeup and, when she refused, was fired."

Lotito believes there will be more of these cases. "People are more open about their sexual identity, lawyers are becoming more creative about how to argue these type of cases, and courts are struggling to find justification because they do not believe people should be treated differently simply for the reason that they do not conform to gender stereotypes."

There are no federal laws that specifically protect gender identity; in fact, no federal statutes talk about gender discrimination. California is the only state which has, to date, adopted a protected class of gender. However, in 1989, the Supreme Court in Price Waterhouse v. Hopkins held that gender role discrimination and gender stereotyping is covered under Title VII as a form of sex discrimination. "This is part of a brand new, socially acceptable concept that now, when we focus in on sex discrimination, we can be talking about the differences between men as men, and women as women," says Lotito.

Does this mean that according to the findings in the Jackson Lewis Survey, there are more lawsuits based on gender discrimination? Not necessarily. It could just mean that it is no longer socially acceptable to say sex, suggests Lotito, so people talk about gender instead. The increase may be describing an increase in all types of sex discrimination suits, instead of those just dealing with gender identity.

At-will employment is dead

What this means for your clients who are employers is that they need to be aware that there is precedent for workplace discrimination involving gender identity. "What it really comes down to," says Lotito, "is that at-will employment is dead. Employers need to know that if they do not have a rational business-related reason as to why they are making certain decisions about an employee, or they are permitting employees to pick on other employees based on stereotypes that are either being achieved or not achieved, they have a potential liability on their hands."

It is not just the increased filings of these types of claims that should concern employers. For every reported case, there are probably 20 or more similar ones threatened to be filed. These end up being quickly settled in favor of the plaintiff because the factual pattern was similar to the case that was reported. "In other words," explains Lotito, "if I am a plaintiff's lawyer and I am aware of these cases, I will send a demand letter to the employer, explaining how my client's case is very similar to one that has been won by a plaintiff, and the case will often be settled outside of court."

Help for preventing discrimination charges

The way for employers to protect their workplaces from gender discrimination claims is basically the same as protecting against sex discrimination. First, says Lotito, train, train, train. If you do not train your management and supervisors in fundamental principles of employment law, he asserts, it is the equivalent of corporate negligence. Lotito even suggests using scenarios in training classes that have to do with gender-related issues, to help promote sensitivity to the issue.

Employers should also be counseled to make sure they have very robust complaint-resolution systems. Individuals should have a variety of opportunities as to where they can register complaints. Also, if employers are taking an adverse employment action against an employee, they should make certain to do some formal central review. They should look into what Lotito calls "emerging recognized fact patterns" with a good degree of sensitivity. In addition, they should consider getting help from in-house or outside legal counsel to help them walk through the situation, so that whatever action is being considered is going to have a minimal amount of risk.

Finally, employers should check their employment practices liability insurance policies to see what is included in the definition of a claim. Is gender discrimination one of the protected categories? If not, they may find that they bought a policy that will not offer them any protection against such a claim.

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