Sex or Gender Discrimination
What is Sex or Gender Discrimination?
Discrimination based on sex occurs when an employer discriminates against an employee based on sex, pregnancy, sexual orientation, or gender identification. It is also illegal for an employer to discriminate against an employee based on his/her sexual preference, such as heterosexuality, homosexuality, bi-sexuality, or the perception of sexual preference. In addition, an employer may not discriminate against an employee because of his or her gender identification, such as trans-gender, transsexuals, transvestites, etc.
Sex-based discrimination as per U.S. Equal Employment Opportunity Commission (EEOC):
Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex, including the person’s sexual orientation, gender identity, or pregnancy.
Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII. For more information about LGBTQ+-related sex discrimination claims, see Sexual Orientation and Gender Identity Discrimination.
Sex Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Sex Discrimination Harassment
It is unlawful to harass a person because of that person’s sex, including the person’s sexual orientation, gender identity, or pregnancy. Harassment can include “sexual harassment” such as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex, including the person’s sexual orientation, gender identity, or pregnancy. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both the victim and the harasser may be any sex, and the victim and harasser may be the same sex or a different sex.
Although the law doesn’t prohibit minor teasing, offhand comments, or isolated incidents that are not frequent or serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, a subordinate, or someone who is not an employee of the employer, such as a client or customer.
Sex Discrimination & Employment Policies/Practices
An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business.
No Direct Evidence Required to Prove Discrimination
In employment discrimination cases, such as age, race, ethnicity, disability, sex, etc., or discriminatory harassment, direct evidence of discrimination includes, but not limited to, for example, supervisor making discriminatory comments in emails, recorded telephone messages, text messages, social media positing’s, etc.
While direct evidence of discrimination is preferred, a plaintiff is not required to come forward with direct evidence of discrimination. All courts recognizes that employers are sophisticated enough to hide motives they know are illegal. They do not leave a paper-trial or other direct evidence of discrimination, and there will seldom be eyewitness testimony as to the employer’s state of mind, no written records revealing the forbidden motive and may communicate it orally to no one.
In the absence of direct evidence of discrimination, courts permit a plaintiff to present her case to a jury if she comes up with circumstantial evidence sufficient to demonstrate that her termination was more likely than not motivated by discrimination.
New Jersey courts analyze an LAD claim based on the three-part burden shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas burden-shifting framework, if the plaintiff sets forth a prima facie case of discrimination, a presumption is created that the employer unlawfully discriminated against the plaintiff. The plaintiff sets forth a prima facie case of AGE discrimination if she demonstrates that (1) she was in a protected class; (2) she was qualified for the position from which she was fired; and (3) she suffered an adverse employment decision; (4) she was replaced by a sufficiently younger person to create an inference of age discrimination, or the termination took place under circumstances that give rise to an inference of unlawful discrimination. After an employee has established a prima facie case, a presumption is created that the employer unlawfully discriminated against the employee.
After the plaintiff establishes prima facie case, the burden then shifts to the employer to articulate with admissible evidence a “legitimate non-discriminatory reason for the employer’s action. To accomplish this, the employer must clearly set forth the reasons for the plaintiff’s rejection which would support a jury finding that unlawful discrimination was not the cause of the adverse employment action.
After the employer demonstrates a legitimate non-discriminatory reason for termination, the burden then shifts back to the plaintiff to come forward with evidence demonstrating either (1) that defendants‟ proffered reason for terminating the plaintiff was unworthy of credence, or (2) discriminatory animus more likely than not motivated plaintiff’s termination.
A plaintiff may demonstrate discrimination by producing indirect evidence to demonstrate that the employers’ reasons to terminate/discipline employer’s was either a post hoc fabrication or otherwise did not actually motivate the employment action. That is, the reasons provided by the employer was a pretext. To do so, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reasons for termination/discipline that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted reasons provided.
Alternatively, a plaintiff may come forward with sufficient evidence from which a jury could reasonably conclude that a discriminatory factor more likely than not was a motivating or determinative cause of the adverse employment decision (e.g., by showing that the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons).Further, a plaintiff need not prove that discrimination was the ONLY factor, or the sole or exclusive factor in the decision to fire her, but A factor.
Statistically, most plaintiffs win their discrimination cases in state courts. However, some of these cases do not even make it to a jury, and are dismissed on summary judgment.
If you are looking for a qualified sex or gender discrimination attorney to work on your claim, please review the case types below.