A long-standing and ongoing problem for American workers is discrimination based upon “immutable characteristics” such as gender. To combat this problem, both state and federal laws have been passed to prohibit such discrimination. Gender discrimination comes in largely two forms: harassment and discrimination. Below is a brief overview of what constitutes gender discrimination; an overview of sexual harassment is covered elsewhere. 

Filing A Claim
Title VII and its state counterparts are the main source of recourse for discriminated employees. To file any claim under these statutes, the victim of discrimination must file a complaint with the appropriate administrative agency within 180 days of the discrimination. If the employee misses this deadline, the claim will be time-barred. After filing the administrative complaint, the employee can request documentation allowing them to file a lawsuit in court. Again, this filing must be done extremely quickly after receiving the documents. It is imperative that this condensed timeline be remembered, as there is no recourse under Title VII after the time limits run.

Individualized Discrimination
Title VII prohibits two types of direct gender discrimination—individualized and systemic. Individualized discrimination focuses on intentionally different treatment of a single employee. This treatment must be motivated by the employee’s gender and it must result in an “adverse employment action.” This includes any material effect on a term, condition, or privilege of employment. Common examples include demotions, terminations, and denial of promotions. However, usually anything with an economic effect or egregious results will be considered sufficient by the court.

The most difficult part of these claims is proving that gender was a motivating factor. A motivating factor is measured by asking if the adverse action wouldn’t have been taken but for the person’s gender. Basically, if the same decision would have been made had the person been of the opposite gender, gender was not a motivating factor. This involves proving what the employer was thinking, which is a difficult task. This means several cases will have to be decided by a jury weighing the credibility of each side’s story.

Other important evidence to determine if something is a motivating factor includes comparator evidence. A comparator is a similar employee with the opposite gender. Thus, if a company promotes several male employees but neglects to promote a female employee with nearly identical experience and reviews, this comparator information can be helpful for a judge or jury in determining what role gender played in the decision. Obviously, finding a perfect match is near impossible. Thus, the goal is to find comparators that are as close as possible to the victim of discrimination. Each side will generally argue about what factors should be used and when these factors are not close enough to make an accurate comparison.

Systematic Discrimination
The second type of discrimination focuses on wide spread discrimination. Here, a class of employees ban together to show that the employer uses either a (1) a written policy that is discriminative or (2) a pattern or practice of discrimination. The employer then has the opportunity to prove that the policy or practice is a bona fide occupational qualification. This means that substantially all members of one gender would not be able to complete the purpose of the policy or practice. An example of this is found in Internal Union v. Johnson Controls, Inc. The employer had a policy of banning women from working certain jobs because it required exposure to chemicals that may cause birth defects. The court said that this written policy was not tethered to a bona fide occupational qualification, because women could still perform the work require. It was up to the individuals on whether the risks were worth it; the employer could not make that decision based upon gender for its employees without discriminating.

The key to proving a pattern case involves using statistics. A plaintiff will have to prove that a pattern of discrimination exists, which generally will require showing a long-running preference of one gender over the other. A plaintiff may believe that an employer fails to hire women, even though they apply and are as qualified as the males ultimately hired. To prove this, however, the plaintiff will need to amass statistics of applicants and hires over a sufficient period. This is a large amount of work, and it may be difficult to gather this data from a non-cooperative employer. These factors can make successfully bringing a pattern case very difficult.

Indirect Discrimination
After Title VII was enacted, employers began to alter their practices to achieve discriminatory results indirectly. In Griggs v. Duke Power Co., the Supreme Court determined that Title VII could be used to combat these tactics as well. These claims are known as disparate impact cases, because the facially valid policy has a disparate impact on one gender. A common example is physical testing that applies equally to men and women, but disqualifies women at a higher rate. Once a plaintiff shows a seemingly neutral policy with a negative impact on one sex, the employer will have the option to show the policy is both job related and a business necessity. Continuing with the physical test, the court would look at the nature of the job. If it is an office job and the test requires lifting 80lbs, the policy is likely neither job related or necessary for the position. Therefore, the victim of discrimination would have a valid disparate impact claim.

Gender discrimination can come in many forms. It can be difficult to determine what type of claim specific facts fit into. And it may be even more difficult to determine if enough evidence of discrimination can be assembled. This is way it is extremely important to contact experienced legal counsel when discrimination appears to have occurred. Properly assessing what type of discrimination may be occurring, and how it can be proven, is essential to succeeding in court.

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