California Sex and Gender Discrimination

A federal law called Title VII prohibits sex discrimination in the workplace. The law also recognizes that sexual harassment is a form of sex discrimination. That law has been in effect since 1964, but sex discrimination and sexual harassment continue to be headline-grabbing problems.

California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or terms, conditions, or privileges of employment” because of the employee’s sex or gender. Cal. Gov. Code § 12940(a).

Federal and California sex and gender discrimination laws protect everyone from illegal conduct like unequal pay rates, sexual harassment, and positional bias. Further, California law protects employees from discrimination because of their sexual orientation, gender identity, and gender expression. While federal law applies to employers who have at least 15 employees, California law applies to employers with at least 5 employees. In addition, all California employers are prohibited from sexually harassing their employees.

The concepts of sex and gender discrimination are easy to understand in the abstract, but the application of those concepts in the real world is often unclear. Employees who believe they have been the victims of sex discrimination or gender discrimination can get legal advice from an employment lawyer at KKG Law. Our offices serve current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities.

Sex Discrimination

In simple terms, sex discrimination in employment occurs when an employer treats one employee less favorably than other employees because of his or her sex. Women are the usual victims of sex discrimination, but discrimination against employees of either gender is prohibited.

Employees can obtain a remedy for sex discrimination when an employer takes an adverse action against an employee because of the employee’s gender. The law refers to that kind of discrimination as disparate treatment. An adverse action is one that negatively affects the terms or conditions of employment. Common examples include:

Failing to hire
Termination
Layoff
Unequal pay or benefits
Demotion or failing to promote
Pay reduction or failing to give a raise
Denial of transfer to better jobs
Unequal discipline

While most adverse actions affect an employee’s pay, position, or continued employment, other discriminatory actions may be recognized as adverse if they cause significant harm to the employee. Examples include:

Assigning the worst job duties to employees of one gender
Substantially reducing an employee’s responsibilities
Failing to provide the training required to advance or succeed in the job
Transferring an employee to a location that provides less opportunity for advancement

In addition to disparate treatment based on sex, the law prohibits employers from taking neutral actions that have a disparate impact on employees of a particular gender. For example, lifting or requirements for a job might be discriminatory if they disqualify significantly more women than men from employment.

Gender Equity

California’s Equal Pay Act prohibits employers from paying employees of one sex less than employees of the other sex when they do the same work. In 2015, the Act was amended to require employers to give equal pay to employees of both sexes when they do “substantially similar work.” The law defines “substantially similar work” in terms of skill, effort, and responsibility.

California courts will need to decide how the amended Equal Pay Act will apply to specific jobs. An employment lawyer at KKG Law can help employees understand whether they are being paid less than employees of the other sex for substantially similar work.

Gender Identity Discrimination

Federal courts are slowly recognizing that sex discrimination includes sexual orientation. California law, however, provides some of the nation’s strongest protections against discrimination based on:

Sexual orientation
Gender identity (self-identification as belonging to either gender, both genders, transgender, or nongender, regardless of gender assignment at birth)
Gender expression (how gender is presented through outward appearance and behavior)

An employment lawyer at KKG Law can help employees vindicate their rights when they have been subjected to discrimination for any reason forbidden by California law.

Remedies for Sex or Gender Discrimination and Harassment

Most legal claims for employment discrimination begin by filing a charge with an administrative agency. The Equal Employment Opportunities Commission (EEOC) is the federal agency charged with enforcing federal protections against sex discrimination. Claims made under to California law can be filed with the California Department of Fair Employment and Housing (DFEH).

Remedies for sex or gender discrimination may include:

Court orders prohibiting future harassment or discrimination
Court orders requiring employers to eliminate the effects of discrimination (e.g., reversing a demotion or transfer)
Back pay
Reinstatement to a position or front-pay
Compensation for emotional distress
Punitive damages

Time limits for filing an EEOC claim (300 days) or a DFEH claim (365 days) are quite short. It is important to obtain legal advice immediately after discrimination or sexual harassment occurs to determine whether, when, and where a claim should be filed.

Retaliation

Federal and California laws prohibit employers from retaliating against employees who complain about sex discrimination or sexual harassment, or who file legal claims. Conduct that is defined as retaliatory is broader than the “adverse actions” discussed above. Our retaliation page explains retaliation and its remedies in more detail.

Helping Victims of Sex and Gender Discrimination

If you have experienced discrimination at your workplace because of your sex, gender, gender identity, gender expression, or sexual orientation, contact a sex discrimination attorney at KKG Law. We can help victims of sex and gender discrimination and retaliation. We represent current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities. Contact us at