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How to Prove Gender Discrimination in the Workplace

Gender discrimination is simply the discrimination of someone’s anatomical appearance. Gender discrimination it is believed happens when individuals are treated differently or unfavourably in their employment because of their sex.

Anyone can experience gender discrimination, especially of you were rejected in employment, fired, or harmed in any other way because of your sex.

It’s unlawful for an employer to discriminate against you when hiring or giving promotion, in salary, job classification, assignments/tasks/responsibilities, and benefits. In the United States, there are many federal laws that protect you from discrimination in the workplace.

These federal laws make it unlawful to discriminate against certain categories of people, known as protected classes. But you need to understand that not all kinds of discrimination are protected under the federal law.

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The federal anti-discrimination laws only protect you if you fall into a protected class or category. Note that these protected classes vary under the various federal laws.

Know what Gender Discrimination is

To confidently understand gender discrimination, you need to understand the federal law. Title VII of the 1964 Civil Rights Act prohibits discrimination based on sex or gender. Note that this prohibition applies to discrimination based on pregnancy, gender identity (including transgender status), or sexual orientation.

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This law prohibits gender discrimination in all aspects of employment such as hiring, firing, job assignments, pay, promotions, layoffs, benefits, and other conditions of employment. In the United States, it is also unlawful to harass a person because of sex or gender.

Harassment includes unwelcome sexual advances (sexual harassment) and verbal or physical harassment that may not be sexual in nature but that is based on your gender. Also in addition to federal law you may be covered by state or local laws prohibiting gender discrimination. Such laws may apply to more employers.

Federal law does not apply to employers with fewer than 15 employees. Note that some States that have passed their own laws most times establish their own administrative commissions to investigate allegations of gender discrimination. If your state has an employment commission, you can proceed by contacting either the federal Equal Employment Opportunity Commission or your state administrative agency.

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It is also important that you know the types of gender discrimination. Gender discrimination comes in two forms: disparate treatment and disparate impact. In the first form, you allege that you were treated differently from similarly situated employees because of discrimination based on a protected characteristic (in this case, gender).

While in the second form you allege that the employer adopted an employment practice that had discriminatory consequences. Instead of focusing on intent, you show how supposedly neutral policies affected one group more badly than others. At this point it is also very important that you meet with an attorney.

Whether or not you have a plausible sex-discrimination lawsuit will depend on the facts and circumstances of your particular case. Have it in mind that an experienced employment-law attorney can help you analyse your case and help you with your lawsuit.

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If for any reason you think you have been discriminated against due to your status as a member of a protected class or category, there may be several types of claims that you could bring.

Types of Claim to Bring During Discrimination

  1. Retaliation

A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.

  1. Discriminatory Intent/Treatment

A discriminatory intent or discriminatory treatment is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.

  1. Disparate Impact
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This is a type of discrimination due to the effect of an employment policy, rule or practice rather than the intent behind it. Note that the anti-discrimination laws make it unlawful for a seemingly neutral policy, rule or practice to have a disproportionate adverse effect on members of a protected class.

It is very important to state that workplace discrimination can happen on a variety of levels including gender, race, religious, age or other types of prejudice. While the Civil Rights Act protects against workplace discrimination, it is sometimes very hard to prove that discrimination occurred.

There are certain details and documents that should be provided if you plan to file a workplace discrimination lawsuit. The purpose of this documentation is to prove discriminatory intent on the part of the business owner. Below are detailed ways to prove gender discrimination in your workplace;

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Bring together Evidence of Discrimination

It is very hard to prove someone’s intent because just very few people will admit out rightly that they have discriminated against someone because of gender. This is why you need to  have a circumstantial evidence of this intent.

Note that one key place to get circumstantial evidence is in the comments made about you by your employer. For instance, any comment that is sexist would be very helpful to show your employer’s bias. Save emails, letters, memos, and phone messages. All of these could contain biased language.

You should also get a copy of your employment contract and any documents relating to oral agreements concerning terms of employment. Also to help you prove gender discrimination, you should gather any evidence showing the company’s history of favouring one gender over another.

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Have it in mind that statistics can be very helpful if you want to prove your case, especially if you are suing a large company. These statistics can establish a pattern and practice of gender discrimination.

Also note that you can use discovery to gather necessary documents. You need to understand that when you file a lawsuit you gain the right to ask for documents and other information from the defendant. The defendant too can request information from you. This process is called “discovery.”

In a gender-discrimination lawsuit you will want to request for your personnel file, any document relating to the act or omission at issue, and notice of termination (if applicable). Also look for documents that reflect criteria used in determining whether to fire or lay off someone. Rules, policies, handbooks, and manuals.

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To lay a concrete and successful gender- discrimination suit, you will need proof of damages. Your damages are what you were deprived by the employer’s illegal gender discrimination. Get documents relating to your salary and benefits. Remember to gather all W-2s and 1099s, 401(k) plans, profit-sharing plans, insurance (life, health, and disability), and other benefits.

Report Gender Discrimination to the Equal Employment Opportunity Commission

First you need to understand that federal anti-discrimination law applies to employers with 15 or more employees. If this describes your employer, you can report gender discrimination to EEOC. But if federal law does not cover your employer, you can report gender discrimination to the equivalent agency of your state.

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If your employer is covered by both state and federal law, you have a choice of where to file your complaint. If you decide to report to EEOC, you can file a charge with any of their field offices. There is a map on the EEOC website of the 53 field offices around the U.S.

Contact the office nearest to you to ask if you must make an appointment or whether they welcome walk-in. Note that you have 180 days to file after the issue arises. This deadline may be extended if your state law provides a later deadline. Also if there is no field office near you, you can file a charge by writing a letter. Include the following information:

  • Your name, address, and telephone number
  • Your employer’s name, address, and telephone number
  • The number of employees employed there
  • A short description of the events you believe were discriminatory
  • When the events took place
  • Your belief that gender discrimination was the motivation for the events at issue
  • Your signature
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Proving Gender Discrimination in Court

Note that you start a lawsuit by filing a complaint. A complaint will allege the facts that make up your dispute and ask the court for relief (such as lost wages or reinstatement to a job). You need to note that the court you file in depends on whether you are suing under federal or state anti-discrimination law.

If you sue under federal law, you would file in a federal district court. If you sue under state law, you would file in a state Court. You will also need a “Notice of Right to Sue” letter from the administrative agency that you filed your charge with. The EEOC will issue the letter after conducting an investigation.

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Once you receive your letter, you must file your lawsuit within 90 days. Some people prefer to sue before EEOC completes its investigation. If 180 days have passed since you filed the charge with EEOC, the agency will give you the Notice of Right-to-Sue if you ask.

You need to make sure that your complaint lays out the different elements of a gender-discrimination claim, and you must present evidence that supports each element. It also depends on whether you are claiming disparate treatment or disparate impact.

You will also need to show that the employer’s reasons are mere pretext. If you make out a prima facie case, the employer can respond that it had a legitimate, non-discriminatory motive for the contested action. For instance, an company could argue that a particular job needed more physical strength than you have or that another candidate was otherwise more qualified.

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But once the employer makes that claim, you have a chance to argue that the reason is simply pretext that masks the real, discriminatory motive. You will need to prove that the employer’s articulated reason is either factually incorrect or not the true reason for the challenged action.

Also if you get to trial, you must present to the judge or jury enough concrete evidence to carry your burden of proof. You must support each element of your claim with a “preponderance” (majority) of the evidence. Have it in mind that most evidence is presented in court in the form of witness testimony.

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Witness testimonies make or break cases. For instance, calling up a witness who overheard your employer harass you gives you a head start in a gender discrimination hearing. You can depend on documentary evidence to further show an employer’s discriminatory intent.

You can use internal memos or other written communication in which your boss makes biased comments to show discriminatory intent. Also documents are vital when stating the company’s normal procedures for hiring, firing, or promoting someone.

If the company derails from its written policies in your case (but not others), this could mean proof that the employer was motivated by a discriminatory intent. Also have it in mind that statistics are key in “disparate impact” cases in particular.

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You need to understand that no matter what the outcome may be, discrimination is something you shouldn’t let control your life. If for any reason you feel you have been unfairly treated, even after filing a complaint, it could be within your interest to look for a company that is more willing to accommodate your identity and treat you fairly.

Cases of such gravity have shown that discrimination of any sort can be traumatizing and discouraging. But no matter how bad it seem, know that you are not alone in your experiences.

Remember that speaking up or creating awareness to the issue can be the first step into building a better and brighter future for everyone. Never you let your experiences define you, but find a support system that can help you grow above it and become stronger despite it all. You can be the strength other people are waiting for.