Sex Or Gender Termination

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, wrongful termination based on sex or gender includes not only termination 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 "[wrongfully terminated],"
  • 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 wrongful terminations based on gender tend to be directed towards females, employers are still prohibited from terminating 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 specifically protected under FEHA from wrongful termination, mothers may suffer wrongful termination if they are terminated because of their gender or pregnancy. Because pregnancy is attached to the female gender, termination of pregnant workers due to the pregnancy itself is generally treated as wrongful termination. Cal. Gov. Code § 12926(p). Consequently, employers 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. Likewise, forcing unduly burdensome appearance standards on a particular gender at the cost of discharge from employment is prohibited. Frank v. United Airlines, Inc. (9th Cir. 2000) 216 F3d 845, 854. In addition, requiring a gender to wear sexually provocative clothing or face termination would also be wrongful. Jespersen v. Harrah's Operation Co., Inc., 444 F3d at 1113. Finally, it is also wrongful termination to fire an employee of a particular gender for failing to meet a certain level of attractiveness. Yanowitz v. L'Oreal USA, Inc., (2005) 36 C4th 1028, 1044 (about discrimination generally).

Wrongful termination due to gender also includes terminations by employers based on the fact that an employee is transsexual. Thus, wrongful termination 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.

Contact Us

If you have been wrongfully terminated from a workplace due to your sex or gender, contact the renowned lawyers fighting against wrongful terminations due to gender at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.