Sex or Gender Discrimination

California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment" because of the employee's sex or gender. Cal. Gov. Code § 12940(a).

While the term "sex" denotes the biological differences between males and females, gender refers to the cultural implications attached to each sex. Therefore, discrimination based on sex or gender includes not only discrimination directed towards the physical differences between the sexes, but also the stereotypes and attitudes of and about the sexes.

To bring a claim for gender discrimination an employee must show that:

  • the employee was a member of a particular gender (ex: employee is female),
  • the employee was "subjected to an adverse employment decision," (ex: discharged),
  • the employee was "qualified for the position,"
  • the employee was "replaced by a person outside the [gender], or similarly situated [employees of the opposite gender] were treated more favorably." Vincent v. Brewer Co. (6th Cir. 2007) 514 F.3d 489, 494.
  • Note: It is not necessary to show that the plaintiff was equally qualified for the position taken by the replacement. It is only necessary to show that the plaintiff was qualified.

Both sexes are entitled to equal rates of pay for the same job, as required by the Equal Pay Act of 1963. As well, favoritism shown to a particular sex by a supervisor may create a hostile work environment, which is prohibited by FEHA. Miller v. Department of Corrections, (2005) 36 C4th 446, 466.

While most gender discrimination tends to be directed towards females, employers are still prohibited from discriminating against male employees on the basis of sex. For instance, suggesting that a male worker harassed a female worker because males are likely to do so would constitute sex discrimination. Sassaman v. Gamache (2nd Cir. 2009) 566 F3d 307, 312.

While parents are not protected under FEHA from discrimination, mothers may suffer discrimination if they are discriminated against due to their gender or pregnancy. Because pregnancy is attached to the female gender, discrimination against pregnancy generally also constitutes sex or gender discrimination. Cal. Gov. Code § 12926(p). Employers also may not assume that women will be inadequate workers due to family or child-rearing responsibilities. Chadwick v. WellPoint, Inc. 561 F3d at 45.

Employers can require an employee to "adhere to reasonable workplace appearance, grooming, and dress standards," but an employer must "allow an employee to appear or dress consistently with the employee's gender identity." Cal. Gov. Code § 12949. On the other hand, forcing unduly burdensome appearance standards on a particular gender is prohibited. Frank v. United Airlines, Inc. (9th Cir. 2000) 216 F3d 845, 854. In addition, requiring a gender to wear sexually provocative clothing constitutes sex discrimination. Jespersen v. Harrah's Operation Co., Inc., 444 F3d at 1113. It is also sex discrimination to require a particular gender to meet a certain level of attractiveness. Yanowitz v. L'Oreal USA, Inc., (2005) 36 C4th 1028, 1044.

Gender discrimination includes discrimination by employers based on the fact that an employee is transsexual. Thus, gender discrimination includes a "person's identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." Gov. C. § 12926(p), Pen. C. § 422.76.

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If you have experienced sex or gender discrimination at your workplace, contact the renowned sex discrimination lawyers at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.