Sex or Gender Discrimination

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Title VII of the Civil Rights Act of 1964 & the New York State Human Rights Law Make it Unlawful to Discriminate Against Someone Because of His or Her Sex or Gender.

Title VII of the Civil Rights ActKnown generally as “Title VII” this federal statute makes it illegal for an employer to refuse to hire, terminate or otherwise discriminate against an individual with respect to compensation (pay), terms, conditions or privileges of employment because of race, color, religion, sex or national origin. 

What is “Sex” or “Gender” Discrimination?

Employees may not be treated differently because of his or her sex or gender.  This includes being subjected to sexual harassment/hostile work environment, being demoted, terminated, or not hired in the first place, and includes being paid unequally.  (There are separate federal and state Equal Pay laws as well).  The New York State Division of Human Rights recently released regulations that include discrimination on the basis of gender identity and transgender status within the definition of “sex discrimination.”  The EEOC has also interpreted the sex discrimination provisions of Title VII to apply to discrimination on the basis of sexual orientation.  Visit our page on LGBTQ rights and discrimination for more on this specific type of discrimination. [link] [we should create a page]

Additionally, the Pregnancy Discrimination Act amended Title VII so that the terms “because of sex” or “on the basis of sex” include pregnancy, childbirth or related medical conditions, as well as women affected by pregnancy, childbirth or related conditions.  New York law also protects women from pregnancy discrimination and additionally requires the provision of reasonable accommodations for pregnancy related conditions, something that is not currently required under federal law.  Visit our Pregnancy Discrimination page for more on this specific type of discrimination. [link] 

Sex Discrimination Under Title VII

Who Does Title VII Apply To?

Title VII protects state and federal employees and private employees who work for a company with fifteen (15) or more employees.  This means that if you work for a very small company, you may not be protected by Title VII (you may be protected under New York State law, however).

Making a Complaint for Gender Discrimination Under Title VII

If you believe you have been the victim of sex discrimination or are being subjected to sexual harassment, you should seriously consider making a complaint to your employer.  If and when you make a complaint keep two crucial issues in mind:  1) make the complaint in writing (and that you keep a copy) so that you have proof that it was made; and 2) make the complaint to the appropriate person.  You should check your employee handbook or personnel policy to determine whether your employer has complaint procedures and be sure that you are following them.  If there is no formalized complaint procedure, you should consider making your complaint of sex or gender discrimination or sexual harassment to your supervisor and/or a Human Resources representative.

You may also consider making a complaint with the EEOC (link).

The United States Equal Employment Opportunity Commission (“EEOC”) is responsible for investigating claims of gender or sex discrimination under Title VII.  The EEOC is a federal agency, with offices throughout the United States, including multiple offices throughout New York State.

A claim for sex or gender discrimination must generally be filed with the EEOC within 180 days of the illegal conduct.  This time period can be extended in New York to 300 days in most cases.  You must make a complaint to the EEOC within the appropriate time period to preserve a Title VII claim.

If you file a legitimate complaint of sex or gender discrimination with your employer, you will be protected from retaliation (link).  This means that your employer may not target you because you made a complaint.  

After the sex or gender discrimination complaint is filed, the EEOC will start its investigative process.  Read more about that process here (link).

Damages for Sex or Gender Discrimination Under Title VII

Title VII allows for a victim of sex or gender discrimination to recover monetary (or money) damages. 

The damages that a victim of sex or gender discrimination may recovery under Title VII include: 

Past lost wages (the amount of money you've lost because of the discrimination);

Future lost wages (the amount of money you expect to lose because of the conduct in the future, both if you have another job making less money or if you have not found a new job);

Lost benefits, which may include lost vacation time, sick time, pension or retirement benefits.  For more on how lost retirement benefits are calculated, read this article (link).

Emotional Distress damages, which are generally divided into two categories: “garden variety”- which cover those individuals who have not sought medical treatment or counseling for the emotional distress; and non-garden variety – which cover those who have sought and received treatment.  As you might imagine, the amount recoverable for non-garden variety emotional distress damages is generally larger.

Attorneys' Fees.  This is often a significant element of damages.  The court may award the successful attorney an hourly rate fee (as determined by the court) for the total number of hours worked on prosecuting the sex or gender discrimination lawsuit.

Punitive Damages, a discretionary award meant to “punish” an employer for its wrongful conduct.  Punitive damages are not typically available against public employers.

Sex or Gender Discrimination Under the New York State Human Rights Law

New York State Executive Law 296, known as the “Human Rights Law”, prohibits discrimination on the basis of sex or gender in New York State.  Unlike Title VII, the Human Rights Law protects New York State employees who work for an employer with four (4) or more employees.  When the sex discrimination is based upon “sexual harassment” the Human Rights Law applies to all employers.  This means that many employees in New York State are protected by the Human Rights Law who would not otherwise receive protection from Title VII. 

Making a Complaint for Sex or Gender Discrimination in New York

The first option for a sex or gender discrimination victim may be filing an internal complaint with the employer.  As with a complaint under Title VII, if you decide to make this complaint you should do two things: 1) make it in writing; and 2) make it to the person designated to receive the complaint under the employee handbook – assuming someone is identified. 

In New York State, victims of sex or gender discrimination may also choose to file an administrative complaint with the New York State Division of Human Rights (“DHR”).  DHR handles claims of sex or gender discrimination under the State Human Rights Law.  Claims must generally be filed within one year of the discrimination, but there are exceptions making the time period shorter in some situations.

After receiving a complaint, DHR will open an investigation.  To learn more about the investigative process, click here. (Link).

Damages Under the NYS Human Rights Law

A successful victim of sex or gender discrimination under the NYS Human Rights Law can expect to recover damages similar to those available under Title VII, with the exception of attorneys' fees and punitive damages, which are generally not recoverable under New York Law.  Attorneys' fees are available when the discrimination is based upon sexual harassment.

Retaliation

Both Title VII and the NYS Human Rights Law protect employees from retaliation when they have engaged in protected activity.  Protected activity includes making good faith complaints of harassment/discrimination on behalf of yourself or others, opposing harassment or discrimination, and participating in investigations of harassment or discrimination.  It is important for complaints to be documented so that, in the event you are retaliated against, you have proof of the complaint.  The EEOC and the Division of Human Rights also investigate claims of retaliation and, if you make a complaint with one of these agencies, you should specifically include retaliation in addition to your claims of discrimination or harassment.

Examples of Sex or Gender Discrimination in the Workplace

  • Being paid less than counterparts of the opposite sex despite having similar credentials and performing similar work
  • Sexual harassment/hostile work environment (typically seen in the male harassing female context)
  • Being asked to perform sexual favors or continue a romantic relationship in exchange for continued employment or promotion (referred to as quid pro quo sexual harassment)
  • Being treated less favorably than employees of the opposite sex including failures to promote, demotions and terminations

Because of expanded definitions of “sex discrimination” in statutes and regulations – including pregnancy, sexual orientation, gender identity and transgender status – there are a myriad of potential scenarios which may fall under the definition of sex discrimination.  If you feel you have been discriminated against, you should contact an experienced employment attorney as soon as possible to determine whether you have a claim and to preserve your claims in light of strict time deadlines.

Contact us today.

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