Sexual Harassment and Gender Discrimination

Do you think that you may have suffered sex or gender discrimination? Sexual discrimination happens to men and to women, can occur between the opposite or same sex, and applies to at-will or non-at-will employees. State anti-discrimination laws as well as the federal Title VII of the Civil Rights Act of 1964 are in place to give you relief.

Gender discrimination is a subset of sex discrimination. It is often non-sexual but is nonetheless directed at you because of your sex. Examples of discriminatory comments and behaviors include employers: 

	Asking whether an employment candidate is married or plans on having children;
	Referring to an employee as a “bitch;”
	Making reference to an employee “PMS”ing;
	Claiming that a woman should be more feminine and wear makeup;
	Calling an effeminate male a “fairy,” or “prissy” or stating that he should ‘act more like a man;’
	Refusing to hire a man in a “woman’s job” and vice versa;
	Retaliating against an employee for assisting in or cooperating with an investigation or lawsuit based upon gender discrimination

Sex discrimination can take two forms, either 1) “Hostile Work Environment Harassment” or 2) “Quid Pro Quo Harassment.” 

1) Hostile Work Environment Harassment exists, when, in the “totality of the circumstances,” the environment is severe and pervasive both subjectively (i.e. from your perspective) and objectively (i.e. from the perspective of an average person). Courts consider how frequently the conduct occurs, how severe it is, and how and to what extent it interferes with your work when determining whether the environment is ‘hostile.’ 

Such harassment occurs when an employer or co-worker engages in sexual conduct or behaviors or makes sexual comments that make you feel uncomfortable at best, and scared at worst. He or she may:

employers: 

	Make derogatory remarks, slurs, or epithets;
	Make physical gestures, ranging from harassing you with his or her ‘eyes,’ to obstructing you from moving around the office, to physically touching or assaulting you;
	Putting up inappropriate pictures, posters, drawings, or cartoons intended to make you uncomfortable

2) Quid Pro Quo Harassment is when an employer, usually a supervisor, requests or demands sexual favors, or makes sexual advances, in exchange for providing job security, benefits, or promotions to the employee. 

If you are being discriminated against or harassed based upon your sex or gender: 

1. Document everything; 

2. Demand that the harasser stop and report the harassment to Human Resources, the person designated by the employer to receive such complaints, or if no such person exists, complain to the harasser’s superior or to anyone who has authority at work; 

3. Seek legal advice;

4. File a claim with the EEOC or applicable state or local agency

Before filing a lawsuit, one usually must file a complaint with either the Equal Employment Opportunity Commission (for a federal complaint) or the applicable state or local agency (for a state complaint). In certain instances, the applicable agency will prosecute your case for you. 

Sexual Orientation Discrimination

Do you think that you may have been discriminated against based upon your sexual orientation or perceived sexual orientation? California has laws in place to protect you. It prohibits discrimination against those “with traits not stereotypically associated with their gender,” such as mannerisms, appearance, speech, etc. Sexual orientation discrimination comes up, for instance, when employers enforce a dress code, permit women to wear makeup but not men, or require men and women to only use restrooms designated for their particular sex regardless of whether they are transgendered. 

If you have experienced discrimination because you are transgendered, a transvestite, a cross dresser, gay, lesbian, bisexual, curious, or simply perceived as unfeminine or unmasculine, California’s gender identity laws protect you. 

If you think you or someone you know may be being sexually harassed or discriminated against, click here to get in contact with on of the attorneys at Solomon Saltsman & Jamieson.