how to prove gender discrimination

Under state and federal law, an employer cannot discriminate against someone based on their protected class. 

Examples of protected classes include age, disability status, national origin, race, religion, gender identity, or sexual orientation. While employment discrimination based on the mentioned factors is unlawful, it isn’t always obvious.

For a discrimination case, you need to be able to identify how you’ve been treated poorly or differently from others at work and how that treatment is based on your membership in a protected class. 

Do you suspect that your employer has treated you unfairly based on your gender? Read ahead for help determining whether you have been the victim of gender discrimination at work.

Signs of Discrimination at Work

Getting fired for your gender or being sexually propositioned by a supervisor aren’t the only ways you can suffer gender-based discrimination. You might have a gender discrimination case if your gender is the basis of:

  • A refusal to hire you,
  • A refusal to promote you,
  • A refusal to assign you to a work project,
  • A decision to discipline you,
  • A decision to fire you,
  • A decision to give you less or unequal pay,
  • A decision to give you a negative employment reference, 
  • A refusal to train you,
  • Certain pre-employment questions,
  • Harassing behavior, or 
  • A decision to give you different terms of employment.

Please remember that your employer can be responsible for harassment you suffer at the hands of a supervisor, coworker, client, or customer, depending on the circumstances. 

Kinds of Gender-Based Discrimination in the Workplace

Gender discrimination at work can take many forms of which you should be aware. Your employer could be liable for sex or gender discrimination against you if you are treated poorly or unequally based on:

  • Your sex,
  • Your gender identity,
  • Your sexual orientation, or 
  • Your pregnancy-related conditions and needs.

Once you determine that you received disparate treatment in the workplace because of these factors, you can observe the treatment you’ve suffered to determine if it rises to the level of gender discrimination. If you need help figuring it out, an experienced gender discrimination attorney can help you build your case. 

How to Prove Gender Discrimination

Sometimes you can easily prove gender discrimination by keeping notes of the dates and times someone in the workplace made an offensive comment regarding your sex or gender. You can also gather witnesses who observed the offensive behavior to prove your case. Any time you suffer harassment or it’s obvious your employer made an adverse decision against you because of your gender, make a report to human resources to ensure its documented in a company record.

In many cases, an isolated incident isn’t enough to prove harassment. But if you can establish a pattern of harassing behavior based on your gender or sex, you could have a strong case for discrimination. If you have a history of reporting discriminatory conduct to your employer and your employer doesn’t take steps to address it, they could owe you damages for failing to prevent such conduct.  

Sometimes discrimination is subtle. Even though the behavior is not as overtly offensive, an employer can be liable for discrimination if they used neutral policies to disproportionately affect you and people who share your gender identity. This is known as disparate impact discrimination. Pay attention to things like the kind of criteria you had to fulfill to get a job or a promotion.

Did the criteria have anything to do with the job responsibilities? If they didn’t and they affected one gender identity more than others, this could be a clue that your employer’s practices are discriminatory. The same goes for irrelevant interview questions. 

If it’s not against your employer’s policy, keep as much paperwork as you can. If employer policy doesn’t allow you to keep paperwork, you might be able to subpoena the employment documents you need to maintain a discrimination complaint. 

Remedies for Gender Discrimination

If you are successful in a gender discrimination complaint, you could receive multiple remedies, including:

  • Back pay,
  • Reinstatement of your job,
  • Placement in a job the employer denied you,
  • An injunction against the employer to stop or prevent discriminatory practices,
  • Attorney fees,
  • Expert witness fees,
  • Court costs,
  • Related out-of-pocket expenses,
  • Pain and suffering, and 
  • Punitive damages.

The U.S. Equal Employment Opportunity Commission (EEOC) limits the amount of your punitive and compensatory damages based on how many employees your employer has.

Limitations on Gender Discrimination Cases

You can only file an employment discrimination charge with the EEOC if your employer has 15 or more employees. You can only file a discrimination complaint with the California Department of Fair Employment and Housing (DFEH) if your employer has 5 or more employees. Generally, you have only 300 days to file your charge with the EEOC. But you have three years to file your complaint with the DFEH. You will need to file an EEOC charge or a DFEH complaint before you can file a lawsuit against your employer. Hiring an attorney is your best option for complying with these deadlines and preserving your right to seek justice.

Contact an Attorney to Champion Your Workplace Rights

At the Workplace Rights Law Group LLP, we have over seventy years of employment law experience. We are formidable opponents for your employer because we used to work for employers and know how they operate. We also customize our legal strategies to your specific needs to help you get results you need.

If you have been the victim of a workplace injustice, contact us online or call us at 818-446-1045 for a free case review. 


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