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Addressing Gender Discrimination in the Workplace

By June 11, 2020August 11th, 2020Firm News
Gender Expression Non-Discrimination Act

Gender discrimination in the workplace is an ongoing issue in the U.S., despite our progress to combat the discrepancy. Men, women and those with different gender identities face gender bias in the workplace. New laws continue to progress the movement towards an equal and fair work environment for all, no matter their sex, gender or sexual orientation.

What Is Employment Gender Discrimination?

Sex or gender discrimination in the workplace involves treating an individual unfavorably because of the person’s sex. Discrimination may occur in the context of recruiting, hiring, firing, pay, benefits, promotions, job classifications or sexual harassment. Any form of bias or mistreatment in this manner is prohibited under federal, state and local law.

Sex-based discrimination comes in many different forms. You may have heard the terms “sex discrimination” and “gender discrimination” used interchangeably. Even though the terms “gender” and “sex” have different definitions, they mean the same thing according to federal civil rights law and anti-discrimination law.

Gender discrimination refers to the mistreatment of individuals on the basis of characteristics that are culturally associated with masculinity or femininity. Sex discrimination includes different treatment based on one’s anatomical identity. A recent Supreme Court majority ruled to officially extend the prohibition of sex discrimination to gender identity.

Gender Discrimination Cuts Both Ways

In 2019, sociologist Jill E. Yavorsky conducted a study that demonstrated that both men and women face employment gender discrimination when they apply for a job, and it’s commonly associated with the opposite sex of the applicant.

Ms. Yavorsky, an assistant professor at the University of North Carolina Charlotte, sent out 3,000 applications for middle- and working-class jobs. She found that “discrimination during early hiring practices is really concentrated among working-class jobs in male-dominated fields.” She says these findings show jobs are just as segregated as they were in the 1960s, despite the Equal Employment Opportunity Act that banned gender discrimination in the early 1970s.

Her study looked at jobs typically associated with males, such as manufacturing and janitorial jobs, and jobs statistically associated with females, such as administrative support and human resources. Men were called back for male-dominated jobs 44% more often than women. If advertisements for the jobs specified traits like mechanical ability and strength, women were only called back half the time that men were. In contrast, women were called back 52% more for the female-dominated jobs, especially if the advertisement asked for customer service experience and friendliness.

Addressing Gender Inequality in the Workplace in the Federal Law

Title VII of the Civil Rights Act of 1964

The Civil Rights Act of 1964 prohibits discrimination against individuals based on race, color, religion, sex or national origin. Title VII of the act prohibits misconduct by employers. Before June 15, 2020, the federal law did not explicitly prohibit employment discrimination based on “gender identity,” “gender expression” or “sexual orientation.”

Equal Employment Opportunity Act of 1972

The Equal Employment Opportunity Act prohibits job discrimination based on race, religion, color, national origin and sex. The law requires that employers look at all applicants or employees as equals, and deserving of fair treatment. The act gives the Equal Employment Opportunity Commission (EEOC) authority to sue in federal courts when it finds employment discrimination on the basis of race, religion, color, national origin or sex.

Executive Order 11478 and 13087

Executive Order 11478 ensures that the U.S. Government provides equal opportunity in federal employment for all individuals. The order also prohibits discrimination in employment because of race, color, religion, sex, national origin, handicap or age. Executive Order 13087 is a further amendment to Executive Order 11478 that adds the prohibition of discrimination based on sexual orientation in the Federal Government.

Transgender Protections

In 2018, the 6th Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against transgender people and held that employers may not use the Religious Freedom Restoration Act to justify discrimination against LGBTQ workers.

In an opinion by Judge Karen Nelson Moore, she held that Title VII outlaws anti-trans employment discrimination for two reasons. It bars sex stereotyping, which punishes an employee for his or her failure to conform to gender norms. Secondly, anti-trans discrimination is inherently sex-based. She stated, “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

Expansion of Transgender Rights: 2020

On June 15, 2020, the Supreme Court justices progressed the gay rights movement by ruling that Title VII of the 1964 Civil Rights Act covers gay, lesbian and transgender workers. The prohibition of discrimination based on sex now extends to those who face job bias due to sexual orientation or gender identity.

Transgender Veteran Care

U.S. Department of Veterans Affairs (VA) Secretary David Shulkin assured transgender veterans that, despite President Trump’s ban on transgender people serving in the military, the VA’s services will be unaffected. The VA continues to provide patient care services to veterans with lesbian, gay, bisexual, transgender and related identities, including healthcare.

As Secretary Shulkin stated: “I’ve assured them that our mission is to take care of all veterans and take care of them in a way that respects their dignity and provides care in the way that they deserve to get care.”

Shulkin continued, “So, our commitment will be: As long as they are veterans, we are there for them for life, and we will continue to care for all vets.”

Addressing Gender Discrimination in the Workplace on the State Level

Sexual Orientation Non-Discrimination Act of 2003

Effective in 2003, the Sexual Orientation Non-Discrimination Act (SONDA) protects individuals in New York State from discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit and the exercise of civil rights.

Gender Expression Non-Discrimination Act

Governor Cuomo amended the New York State Human Rights Law to prohibit sex discrimination by employers against individuals on the basis of their gender expression or identity. The new law, Gender Expression Non-Discrimination Act (GENDA), went into effect at the end of February 2019.

Under the law, employers cannot take discriminatory actions against individuals, specifically when it comes to hiring or firing them, on the basis of a wide variety of characteristics, including sex, race, disability, sexual orientation, pregnancy, and national origin. Now, those categories also include gender identity or expression.

The law considers “gender identity or expression” broadly. The definition could include an individual’s actual or perceived gender-related “identity, appearance, behavior, expression, or other gender-related characteristics regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

In general, gender identity means the individual’s perception of his or her own sex, regardless of the sex that was assigned to him or her at birth. Gender expression includes outward appearances and expressions instead of individual perception. Gender expression could involve mannerisms, clothing, behavior, or voice.

Legal Network for Gender Equity

The National Women’s Law Center formed the Legal Network for Gender Equity and has recruited more than 80 attorneys from 50 states to assist women and girls who are victims of sex discrimination.

The Law Center has grown concerned that sex discrimination protections have weakened under the Trump Administration. More categories of employers, including publicly traded companies, may opt out of providing no-cost birth control to women by claiming religious or moral objections. Efforts by the EEOC to collect data from large companies about what they pay their employees by job category, race, ethnicity, and gender have been halted. Obama-era guidance on investigating campus sexual assault has been revoked and replaced with new instructions that allow universities to require higher standards of evidence when handling complaints.

The National Women’s Law Center will serve as the network’s hub to provide women and girls with legal resources and names of attorneys who are willing to take on cases. Their goal is to have attorneys affiliated with the network in all 50 states!

Examples of Gender Discrimination in the Workplace

Automation Personnel Services: Sex Discrimination

In 2017, Automation Personnel Services, an Alabama-based staffing agency, settled a sex discrimination lawsuit brought by a woman who alleged she was denied an employment referral on the basis of her gender.

In July 2012, Andrea Williams applied for a shipping and receiving position at APS, but the company would not interview her for the position, allegedly telling her that the job was “not suitable for women” because it was “difficult.”

As part of the settlement, APS paid $50,000 and must actively promote discrimination prevention and provide anti-discrimination training to hiring employees. They are also required to report to the Equal Employment Opportunity Commission every six months for the next two years.

Dell Technologies: Transgender Discrimination

In 2017, a Massachusetts subsidiary of Dell Technologies agreed to pay $110,000 in restitution and launch an employee training program to settle a former employee’s complaint of transgender discrimination in the workplace.

The employee reported that she experienced hostility at the company, was denied job opportunities, and faced retaliation after she complained about the discrimination.

As part of the settlement, Dell Technologies will pay $25,000 to TransCan Work, which promotes the employment of transgender people in Massachusetts. Dell Technologies will also pay $25,000 to Girls, Inc.’s Worcester Eureka!, which advocates for girls’ participation in science, technology, engineering, and math (STEM), as well as $60,000 to the former employee.

Wal-Mart: Transgender Discrimination

In June of 2018, Wal-Mart settled a lawsuit brought by a former North Carolina employee who accused the store of firing her in retaliation for complaining about harassment. The plaintiff, Charlene Bost, and Wal-Mart have not disclosed the terms of the settlement; the company did not admit any wrongdoing, but Wal-Mart spokesperson, Randy Hargrove, said that the company does not tolerate discrimination.

Ms. Bost brought her lawsuit in December of 2017, saying that her coworkers at a North Carolina Sam’s Club store called her “sir,” “shim” (a slur combining “she” and “him”), and “that thing with an attitude.” She also claimed that her boss referred to her as “it” and repeatedly subjected her to unwanted physical advances.

Ms. Bost began working in the store in March 2004 and began coming to work as a woman in 2008. She was fired in March 2015, allegedly in retaliation for complaining to her supervisors about the harassment. The plaintiff accused Wal-Mart of violating Title VII of the Civil Rights Act of 1964.

New York City Nurses: Gender Discrimination

In July of 2018, officials in New York City agreed to pay $20.8 million to settle a gender discrimination lawsuit brought by registered nurses and midwives.

The lawsuit alleged that the City failed to recognize the work done by nurses and midwives employed by the City as “physically taxing.” Male-dominated professions, such as plumbers and emergency medical technicians, were enabled by this classification to retire with full benefits at age 50, as long as they had 25 years of service. Meanwhile, nurses and midwives had to wait until 55 or 57 to retire with full pensions.

One of the plaintiffs and a New York State Nurses Association board member, Anne Bové, said that the average nurse moves about 1.8 tons of weight every shift. She explained: “The only thing that women have in this country right now is the right to vote and the right to run for office. We don’t have equal pay for equal work, and a whole slew of other things fall in line with that.”

The settlement was shared by over 1,600 current and former hospital employees hired between September 15, 1965 and March 31, 2012.

Richard P Donoghue, United States Attorney for the Eastern District of New York, elaborated, “City nurses and midwives care for sick and injured adults, juveniles, and infants through long days and nights under difficult circumstances, and rightfully should be recognized as doing physically taxing work. Equal treatment under law means just that, equal treatment, and this Office is committed to ensuring that women are treated fairly and equitably in the workplace.”

Walmart: Sex-Based Discrimination

In 2001, Walmart faced the largest gender discrimination case ever brought against an employer. The Supreme Court spared the company that time by saying that the lawsuit was too large to constitute a class action lawsuit (it represented 1.5 million Walmart employees).

History is about to repeat itself. On February 1 2019, almost 100 workers filed gender discrimination lawsuits against Walmart, and they allege denial of equal pay for certain salaried management and retail store positions. The plaintiffs in the new lawsuits include current and former Walmart employees who left the store in the early to late 2000s.

Lindsey Wagner, an attorney representing the plaintiffs explained, “There was a culture at Walmart that existed way before 1999 and continued on, and still continues on, and the circumstances that women have been selected for various positions with no opportunity for growth and no opportunity for promotion.”

When new employees are hired at Walmart, most of the women are placed into associate or cashier roles, whereas men are placed in electronics or sporting goods departments where they are then fast-tracked for promotions.

Walmart responded, “Walmart has a strong policy against discrimination in place for many years, and we continue to be a great place for women to work and advance. The allegations from these plaintiffs are not representative of the positive experiences that millions of women have had working at Walmart.”