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California Sex Discrimination and Sexual Harassment

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 law also prohibits sex discrimination, but it more clearly 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 discrimination and sexual harassment 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 sexual harassment can get legal advice from an employment lawyer at KKG Law. Our office serves 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 training required to advance or succeed in the job
  • Transferring an employee to 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 upon 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.

Pregnancy Discrimination

The Pregnancy Discrimination Act amended Title VII to make clear that pregnancy discrimination is a form of sex discrimination. The law prohibits employers from discriminating against employees because of pregnancy, childbirth, or related medical conditions.

Common acts of pregnancy discrimination include:

  • Firing an employee after learning that she is pregnant
  • Denying sick leave for pregnancy-related conditions when sick leave is available for other conditions
  • Denying maternity leave
  • Refusing to allow a return to work after maternity leave ends
  • Denying a FMLA leave after childbirth
  • Demotion or failure to promote because of pregnancy
  • Workplace harassment due to pregnancy

In addition, federal and California law require employers to provide a private place (other than a bathroom) in which employees can express breast milk after giving birth.

California law offers protections beyond federal law by requiring employers to allow an employee to take a leave of absence when she is disabled by pregnancy, childbirth or related medical conditions and to maintain her health insurance during the leave. The law also requires an employer to provide other forms of reasonable accommodation for a pregnancy.

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 on the basis of:

  • 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.

Sexual Harassment

Sexual harassment is a form of sex discrimination. Quid pro quo harassment happens when an employer asks for sexual favors in exchange for something beneficial to the employee, such as a pay increase or a promotion. Quid pro quo harassment is committed by business owners, managers and supervisors who have the ability to influence those terms and conditions.

The other common form of sexual harassment is the creation of a hostile work environment. A hostile work environment is discriminatory when it is directed at employees because of their sex, sexual orientation, gender identity, or gender expression.

Examples of conduct that can create a hostile work environment include:

  • Sexual abuse
  • Inappropriate touching, even if the touching is not illegal
  • Unwanted sexual advances
  • Rude or lewd sexual comments or jokes
  • Mocking or ridicule
  • Comments or conduct suggesting that employees of a particular sex, sexual orientation, or gender identity should not be allowed to do the job

Not every rude comment at work creates a hostile work environment, but when the conduct is so severe or pervasive that it makes the work environment oppressive, abusive, or intimidating, the employee is entitled to a remedy.

Employees may need to report harassment to their employer before they can take further action, although that requirement depends on who is creating the hostile work environment, the nature of the harassment, and whether the employer has established a reporting procedure. An employment lawyer at KKG Law can help employees understand their rights and obligations if they have been subjected to sexual harassment.

Remedies for Sex 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 and sexual harassment. Claims made pursuant to California law can be filed with the California Department of Fair Employment and Housing (DFEH).

Remedies for sex discrimination and sexual harassment 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 law 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 Discrimination and Sexual Harassment

An employment lawyer at KKG Law can help victims of sex discrimination, sexual harassment, or retaliation. We represent current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities. Contact us at 707-898-8125.