What is it?
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Please note: As of October 2019, ERA’s Advice & Counseling program is temporarily not accepting new employment-related inquiries. For more information about this temporary freeze, click here.
Please note: The purpose of this Know Your Rights Guide is to help you understand your rights and options if you are experiencing sexual harassment at work. This guide is not legal advice. Laws and legal rules frequently change and can be interpreted in different ways, so Equal Rights Advocates cannot guarantee that all of the information in this Guide is accurate as it applies to your situation.
Workplace gender discrimination comes in many different forms, but generally it means that an employee or a job applicant is treated differently or less favorably because of their sex or gender, or because the person is affiliated with an organization or group that is associated with a particular sex or gender. Even though the words “sex” and “gender” have different meanings, laws against discrimination at work often use them interchangeably.
Sometimes workers experience discrimination because of their gender and something else, like their race or ethnicity. For example, a woman of color may experience discrimination in the workplace differently from a white female co-worker. She may be harassed, paid less, evaluated more harshly, or passed over for promotion because of the combination of her sex and her race.
Some examples of treatment that could be gender discrimination include:
- not being hired, or being given a lower-paying position because of your sex (for example, when an employer refuses to hire women, or only hires women for certain jobs)
- being held to different or higher standards, or being evaluated more harshly, because of your sex, or because you don’t act or present yourself in a way that conforms to traditional ideas of femininity or masculinity
- For example, if a worker who identifies as a woman receives a negative performance evaluation that criticizes her for being too “aggressive” (while men who behave the same way are praised for showing “leadership”), or if she wears her hair short and is told she needs to be more “presentable,” she may be experiencing discrimination based on sex stereotypes, which is a form of gender discrimination.
- being paid less than a person of a different sex who is similarly or less qualified than you, or who has similar (or fewer) job duties than you
- If you think you are being paid less than someone of a different sex to do the same job or substantially similar work, check out our Equal Pay Know Your Rights Guide.
- being denied a promotion, pay raise, or training opportunity that is given to people of another sex who are equally or less qualified or eligible as you
- being written up or disciplined for something that other employees of a different sex do all the time but never get punished for
- being insulted, called derogatory names or slurs because of your sex, or hearing hostile remarks about people of a certain sex, gender, or gender identity
- being intentionally or repeatedly called by a name or referred to as a different gender that you don’t identify with – as when a transgender man is called by his former (female-associated) name or referred to as “Miss”
- being subject to unwelcome sexual advances, requests for sexual favors, or other verbal or physical harassment of a sexual nature (If you think you’ve experienced sexual or gender-based harassment, please see our Sexual Harassment Know Your Rights Guide.)
- being rejected for a job, forced out on leave, or given fewer assignments because you’re pregnant
Not all gender discrimination is intentional or explicit. It could still count as discrimination if your employer does something that ends up excluding or harming workers of a particular sex without intending to. Oftentimes, a certain practice or policy — say, a hiring test or requirement — does not say anything about gender, and may not have been put in place for the purpose of keeping women out of certain jobs, but ends up having that effect. This kind of practice or policy could still be considered “discriminatory,” and if you’ve been denied a job-related opportunity, paid less, or lost your job (were fired) as a result of it, you might have a discrimination claim.
For workplace gender discrimination to be considered illegal, it has to involve treatment that negatively affects the “terms or conditions” of your employment. Terms or conditions of employment are all the responsibilities, rules, and benefits of a job. Most of the time, they are set by an employer or negotiated by a worker and the employer at the time of hire. In unionized workplaces, they are negotiated and agreed on as part of the “collective bargaining” process. “Terms and conditions” include but are not limited to things like your job responsibilities, work hours, dress code, vacation and sick days, starting salary, and performance evaluation standards.
What are the laws?
Federal law (all states)
Generally, these federal laws apply only to employers with 15 or more employees, but your state might have better laws that cover smaller employers.
- Gender discrimination is illegal. Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against you based on your sex, race, color, religion, or national origin. It is also illegal for employers of 15 or more people to use any of the above categories as a basis for paying you less, firing, not hiring, or discriminating against you in terms of working conditions or “privileges of employment.”
- Title VII applies to employers. It is designed to make employers accountable for providing work opportunities without discrimination. So this civil rights law does not give you a right to sue an individual person – unless that individual is your employer.
- Retaliation is also illegal. Title VII also makes it illegal for an employer to retaliate against (punish) you for reporting or opposing gender discrimination, or participating in an investigation or legal action related to discrimination. Examples of retaliation in the workplace include being fired or demoted, receiving a pay cut or a reduction in your hours, being forced to take leave, or being reassigned to an undesirable job, shift, or location. Retaliation can also be subtle, build up, or get worse over time. Examples include being iced out by coworkers, no longer being invited to meetings, or being left off communications you were formerly on.
Many states have laws against discrimination that provide stronger protections and cover more workers and employers than Title VII. In California, the Fair Employment and Housing Act (FEHA):
- Applies to employers of five or more employees, not just to those with 15 or more, like Title VII;
- Makes it illegal to discriminate against someone not only based on sex, but also based on gender, gender identity, gender expression, or sexual orientation, among other things.
What are my rights?
You have the right to:
1. Work in a safe, discrimination-free environment. Your employer is required by law to provide a safe working environment that is not “hostile” to you based on your sex or gender identity.
2. Talk about or speak out against gender discrimination at work, whether it’s happening to you or to someone else. You can talk about discrimination that’s happening at work to whoever you want, including your coworkers and your supervisor. You also have the right to tell your employer (in a reasonable way) that you believe a company policy, practice, or manager is discriminatory or engaging in discrimination. It is illegal for your employer to retaliate against (punish) you for talking with coworkers about discrimination. Retaliation includes being fired, demoted, cutting your pay, switching your shifts or duties, or any other action that has a negative effect on you. If your employer retaliates, you could consider taking legal action.
3. Report the discriminatory behavior (or policy) to HR or your boss. Report to HR, your boss, or someone else at your company who has power. We highly recommend submitting the complaint or report in writing (by e-mail or letter) and making copies so you have proof later if you need it.
4. File a grievance. If you are a member of a union, your contract (known as the “collective bargaining agreement” or CBA) generally covers the “terms and conditions” of work. If you believe you’re being treated unfairly or your employer isn’t following the contract, talk to your union rep about filing a grievance.
5. Picket or protest against discrimination. In fact, when you get together with one or more of your co-workers to raise concerns about your pay or working conditions, you’re engaging in what’s “concerted activity,” which is legally protected by the National Labor Relations Act.
6. Make a copy of your personnel file. You can request to see your personnel file, which could contain performance evaluations, your employment and pay history, and other useful information that could be used as evidence if you decide to take legal action. Your HR department or union representative should have information about how to get your personnel file for review.
7. File a complaint or charge of discrimination with a government agency, such as the Equal Employment Opportunity Commission (EEOC), or your state’s Fair Employment Practices Agency — for example, in California, the Department of Fair Employment and Housing (DFEH). You also have the right to tell your employer that you plan to file a charge, and they cannot retaliate against you for doing so.
- Note: There are strict deadlines when filing charges with government agencies, called “statutes of limitations.” The deadline to file one with the EEOC is either 180 or 300 days from the “last act” of discrimination, depending on which state you’re in. For more information, see the What Can I Do? section below.)
8. Sue (file a lawsuit against) your employer for discrimination.
- Note: This is only an option if you already filed a charge with the EEOC or your state’s FEPA (see #7 above), and they gave you a “Right-to-Sue” Notice. Be aware that there are strict deadlines about how many days you have after you receive that Notice to file a lawsuit in court.
- For more information on when you can sue, visit the EEOC’s website.
9. Testify as a witness or participate in an investigation by the EEOC or other government agency. Your employer can’t keep you from providing evidence, testifying at a hearing, or communicating with a government agency that is looking into discrimination at your workplace. Even if the investigation eventually finds that there was no discrimination, your participation is still a protected right, meaning your employer can’t retaliate against you (punish you) for cooperating.
If you are fired or retaliated against (punished) for doing any of the above, it is illegal, and you could take legal action against your employer/former employer. Retaliation includes being demoted, cutting your pay, switching your shifts or duties, or any other action that has a negative effect on you.
What can I do?
If you or someone you know is experiencing or experienced gender discrimination at work, here are some actions you can take. Remember: It is normal to be worried about reporting discrimination or taking other action to make the discrimination stop. Do what is right for you. These are just examples of options you might want to consider.
1. Review your employers’ policies. Most employers give you an Employment Manual or Handbook when you start. Review this to find out what policies might be in place to protect you. Look for policies about discrimination. Find out what your company’s complaint procedure is, and pay close attention to deadlines. If there is no information about how to report or complain about discrimination, see if there is a phone number for HR (Human Resources).
2. Write everything down.
- Write down in detail what happened and when it occurred, including anything you said or did, and any witnesses or people that may have been involved in the decisions, policies, or incidents. Include every example of discrimination you can remember. As new things happen, write them down right away so you don’t forget any details.
- Keep notes about any conversations or meetings you had related to the discrimination, including with HR, your supervisor, or the person making the discriminatory decisions or comments. Record the time, date, and place of the meeting, and who was there. If you’re comfortable doing so, ask any witnesses to write down what they heard or saw. Keep these written accounts at home, on a personal email account, or in another safe place not related to your work.
- Tip: Others may read these written records at some point. So it’s important to be as objective as possible when writing down what happened. It is best to stick to the facts when possible.
- If there are any relevant emails or messages, save and gather them in one place, at home, on a personal email account, or in another safe place not related to your work. Save all emails and messages you send to the person doing the discriminating, and those that you send to others about the discrimination.
- Keep copies of any complaints you filed with your company, and any responses.
- Keep copies of any other documents related to the discrimination, and any responses.
- If you think your employer has retaliated against you, keep written notes of every action that has happened, when, where, and any witnesses.
3. Report concerns or complaints about discrimination to Human Resources (HR) or your boss. This is also known as filing an internal complaint. We understand it’s not always possible to feel safe or comfortable at work after talking to your supervisor or coworkers about discrimination you’re experiencing. But we recommend reporting to someone at work who is in a position of authority to either stop the discriminatory behavior or change the practice that is affecting you.
- We recommend putting your complaint or concerns in writing, whether it’s by email or letter. Be sure to keep copies of what you write — and any written responses you get back from your employer — in a safe place outside of work, at home or on a personal email account.
- If you report verbally (in person or on the phone), we recommend taking notes about the conversation and then sending a follow-up email or letter confirming what happened during the conversation. For example:
- Dear [name of Supervisor or Human Resources Staff],
I’m writing to confirm that we met today, [date], to discuss the fact that I am being treated unfairly and believe that I’m experiencing gender discrimination at work because of [the way you’re being treated or an employer policy that’s negatively affecting you]. As we discussed, the [unfair treatment/ discriminatory behavior] has included [description of what’s been happening], and [began / has been affecting me since] [date]. You told me [description of employer’s response, including any promises or commitments made]. Thank you for taking the time to meet with me about this issue. [Your name]”
- Dear [name of Supervisor or Human Resources Staff],
- Note: Filing a complaint internally does not extend the deadline for filing a legal action if you decide to do so later.
4. Go to your union. If you have a union, you could talk to your union rep and ask about the grievance process under your collective bargaining agreement. If that agreement covers discrimination issues, you may be able to get the problem addressed that way.
- Important: Even if you file a grievance through your union about discrimination, you still must file a complaint with a government agency before you file a lawsuit in federal or state court Please see number 10 for more about deadlines.
5. File a discrimination complaint with a government agency. If you think you may eventually want to file a lawsuit in federal or state court, you must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) (Click here to visit the EEOC’s website), or with your state’s fair employment agency. (Learn more about filing a complaint in California.)
6. Pay attention to deadlines. In every state, you have to file a complaint with either the EEOC or a state administrative agency that enforces anti-discrimination laws (often called a “Fair Employment Practices Agency” or FEPA) and get a Right to Sue notice before you file a lawsuit in court. The deadlines for filing a discrimination complaint under Title VII depend on which state you’re in.
- In states that don’t have a FEPA, you only have 180 days – less than 6 months – from the last act of discrimination to file a complaint (called a “charge”) of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).
- In states that do have their own FEPA, you have 300 days from the last act of discrimination to file a charge of discrimination with the EEOC.
- If you’re in one of these states, you may have more time to file a discrimination complaint with your state FEPA. To find out whether you have a FEPA in your state, go to the website of the EEOC field office nearest you.
- Remember: You cannot bring a lawsuit against your employer unless you have first filed a complaint of discrimination with the EEOC or your state fair employment agency. Internal complaints that you make to your employer or with your union also do not extend the deadlines to file with a government agency.
7. Talk to a lawyer. If you need help understanding your rights and weighing your options, Equal Rights Advocates may be able to help. ERA offers free, confidential legal information, advice, and other assistance through our Advice & Counseling service.
- Important Note: As of October 2019, our Advice & Counseling program is temporarily unable to accept new inquiries related to issues at work. Learn more.
What could happen?
If you take legal action, there are different kinds of “remedies” you can ask for. Some have to do with money, and others are more about changing your employer’s behavior. Not everyone can get all of these things. Each case is different, but these are some common examples of things you can demand, and may be able to get if you’re successful (i.e. if you win your lawsuit or reach a settlement).
- Compensation for lost wages and other economic losses if the discrimination resulted in a loss of work or income (i.e., you had to take a leave of absence, lost hours, were fired and had no income for a while, or lost your job and have not found one that pays you as much.) You could also seek compensation for expenses related to any medical or health treatment you needed or will need in the future because of discrimination or retaliation.
- Compensation for emotional distress, which could include anguish, stress, anxiety, pain and suffering, loss of sleep, damage to your reputation, and loss of enjoyment of life resulting from discrimination.
- Reinstatement: If you were fired or forced out because of the discrimination or retaliation, you could potentially get your job back.
- Punitive damages: If you sue in court and show that the employer acted with malice or showed “reckless indifference” to your rights, you may be able to get the court or a jury to order that the employer pay punitive damages, which are meant to punish especially bad employers and send a warning message to other employers.
- Make your employer change their policies or practices. You may be able to get the court to order, or get your employer to agree to change the way it does things in the future to help make the workplace safe and fair for everyone, and to help ensure that others do not suffer the same thing you went through.