Federal law recognizes discrimination based on an applicants sex, whether male or female, as a protected class, and prevents employers from discriminatory actions against applicants and employees through Title VII of the Civil Rights Act of 1964.
By law, sex discrimination implies gender as the biological differences between men and women. In decades past, gender and sex were terms used interchangeably, but increasingly, it is becoming important to differentiate between the terms to avoid confusion and ensure proper legal protections.
Sex discrimination can happen to men by men, women by men, women by women and men by women, and is incredibly commonplace in virtually every industry in the United States.
The term gender is most often used to denote differences in behavior, expectations and social norms between men and women across a non-linear or non-binary system. Gender is often self-determined and can be flexible throughout a person’s lifetime.
The term sex is used legally to describe physiological differences between men and women in terms of genitalia, hormones and other genetic traits. Sex discrimination is the adverse decisions made by employers regarding the preconceived ideas, assumptions and stereotypes of the differences between men and women. Federal law explicitly forbids discrimination based on sex, and employers are required under law to investigate claims of sex discrimination.
Federal law does not explicitly protect applicants or employees from gender identity-based discrimination. The Equal Employment Opportunity Commission, the agency responsible for enforcing anti-discrimination laws at the federal level has, in recent years, incorporated gender identity discrimination within the laws protecting employees from sex-based discrimination.
In August, 2018, Pennsylvania described protections through the Pennsylvania Human Relations Commission that adds protections for gender-based discrimination covering sexual orientation, hetero- and non-heterosexual relationships, transgender, and gender identification that differs from the sex assigned at birth.
Pennsylvania employers are required to investigate charges of gender discrimination. If an employer does not or will not investigate, contact the Pennsylvania Human Relations Commission and they will assist in filing a claim and starting an investigation. Hiring a skilled employment lawyer to help file a complaint will ensure the correct steps are taken within the time limits provided by law.
Sexual Orientation Discrimination
Federal law does not specifically protect gay, lesbian, bisexual or any other-than-heterosexual person from discrimination in their job. In recent years, some federal courts have extended sex discrimination protections to LGBTQ plaintiffs. Pennsylvania added specific state protections for LGBTQ individuals through the state’s Human Relations Commission, responsible for investigating discrimination in employment, housing and public accommodations. These protections incorporate discrimination against LGBTQ employees punishable under the same rules as for sex discrimination in the state. Employers throughout Pennsylvania are required to investigate charges of sexual orientation discrimination. If an employer does not or will not investigate, contact the PHRC and they will assist in filing a claim and starting an investigation. Hiring a skilled employment lawyer to help file a complaint will ensure the correct steps are taken within the time limits provided by law.
Sexual Harassment
Sexual harassment is a form of sex discrimination. Employees are protected from sexual harassment by coworkers, customers and managers. Sexual harassment can involve unwanted touching, gestures, comments and other actions that create an uncomfortable work situation, but can also involve the behavior of coworkers and the interactions with customers. Sexual harassment is typically pervasive and continues over a period of time. Generally, a single comment or joke will not be considered a valid reason for a claim.
Sex Discrimination by the Numbers
Sex discrimination claims handled by the EEOC totaled 28,268 claims in 2018. Of those, 66.6 percent were deemed to have no reasonable cause. Seventeen percent of claims that were found to have merit resulted in settlement payouts, but only 2.3 percent of claims went to court.
A total of $148 million was paid out by employers in 2018 to settle sex discrimination claims. Payouts were more than twice the amount paid out in 1997, and only 2011, at $145 million, came close to the total paid to victims of sex discrimination according to data from EEOC. In 1997, the EEOC handled 32,836 claims, but only 11 percent resulted in a payout for the claimants.
Sexual harassment claims have remained fairly consistent at around 13,000 filings per year since 2010. On average, slightly more than half of claims are found to be without merit, and around 25 percent are resolved by the employer without involving the courts.
Men have been filing an increasing number of sexual harassment claims, with some estimates at around one in every five claims made. Research has shown that men who work in female-dominated jobs, such as teachers and nurses, are among the most likely to experience sexual harassment.
Sexual harassment is among the most underreported discriminatory actions taken against employees. There are dozens of individual reasons an employee might not file a claim of harassment, including fear of reprisal from coworkers or managers, belief that the behavior is not preventable, and failing to recognize the coverages of the law.
In many cases, heterosexual men and gay and lesbian employees believe they are not covered under employment law to protect them from discrimination. While some cases may be more difficult to prove in some states, Pennsylvania ensures that all employees, regardless of factors, are protected from a workplace in which sex discrimination, sexual harassment and unwanted sexual advances are prevented.
How to Prove Sex Discrimination
The numbers tell a grim story. It is likely that a significant portion of the nearly 67 percent of cases found without merit in 2018 simply lacked the evidence needed to prove the case.
As with most discrimination cases, courts will look first to see wheter a claimant has established a prima facie case, in other words, established that on the surface it seems like they have a case. It is then the defendants responsibility to demonstrate that the adverse action taken against the employee was for some reason other than sex discrimination.
Typically, employers will use poor performance reviews, changes in staffing or other seemingly honest reasons for having terminated or discriminated against an employee. The claimant will have to prove with a preponderance of evidence that the adverse action would not have happened but for the sex or gender of the claimant.
This can be a difficult process, and retaining a skilled employment lawyer before filing a claim with the EEOC or PHRC can help establish a strong case. An employment attorney who know both federal and state discrimination laws can help a claimant gather needed evidence, and ensures that filings are made within the timeframes laid out by law. An appalling number of discrimination cases are dismissed each year because claimants fail to get the correct forms filed in the correct office within the statute of limitations. Claimants typically will have 2 years to file claims.
If you or someone special to you has experienced sex discrimination, gender discrimination or sexual harassment at work, hiring a skilled Philadelphia employment attorney will ensure that your rights are protected and that you receive the benefits you deserve.