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Sex Discrimination

Call Our Sex Discrimination Lawyers in California at (310) 943-1171 Now!

Sex Discrimination Lawyers in California

In 1964, Congress passed the Civil Rights Act of 1964. Title VII of this act prohibits employers from discriminating based on sex as well as race, color, national origin, and religion.

In California, the anti-discrimination statute is called the Fair Employment and Housing Act (FEHA). Under this act, employers are prohibited from discriminating based on sex, gender, sexual orientation, and gender identity, as well as race, color, national origin, ancestry, religion, age, disability, military and veteran status, etc. California’s FEHA offers more protections than its federal counterpart, Title VII. 

(Note: These acts apply to public employers, private employers, labor organizations, and employment agencies.)

California's Fair Employment and Housing Act (FEHA) for Sex Discrimination

CALIFORNIA’S FAIR EMPLOYMENT AND HOUSING ACT (FEHA)

Under California’s Fair Employment and Housing Act (FEHA), it is unlawful for an employer to discriminated against an employee, or applicant for employment, because he or she is part of a protected class. This means that employers cannot discriminate against an employee based on their sex, gender, sexual orientation, or gender identity. The FEHA applies to employers of five or more employees, labor organizations, and employment agencies. 

There are two types of discrimination cases; disparate treatment and disparate impact.

What is Disparate Treatment for Sex Discrimination Under FEHA?

Disparate treatment is one type of discrimination. It means that the discrimination was intentionally. This usually means that the discrimination was apparent on its face (i.e. an employment policy which explicitly discriminates against women, men, transgender individuals, homosexual individuals, etc.).

To establish disability treatment, a plaintiff has the burden to prove: 

  1. The defendant was an employer or some other covered entity;
  2. The plaintiff is/was an employee of the defendant, or that the plaintiff applied for a job with the defendant;
  3. The defendant subjected the plaintiff to some adverse employment action (i.e. fired, refused to hire, demoted, etc.). 
  4. The plaintiff’s sex, gender, sexual orientation, or gender identity was a substantial motivating reason for the adverse employment action;
  5. The plaintiff suffered a harm; and
  6. The defendant’s actions were a substantial factor in causing the plaintiff’s harm.

If the plaintiff succeeds in proving these things at trial, there is a presumption of discrimination. To rebut this presumption, the burden shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. If the defendant is successful, then the presumption of discrimination is broken. However, the plaintiff is given an opportunity to present evidence showing that the defendant’s alleged reason is not true and is merely pretext for discrimination. It is then up to the jury to decide whom they believe, the plaintiff or the defendant.

What is Disparate Impact for Sex Discrimination Under FEHA?

Disparate impact is another type of discrimination. It means that the discrimination was unintentional. This usually means that the discrimination was NOT apparent on its face (i.e. an employment policy which does NOT explicitly discriminate against women employees but has an indirect negative effect on women employees).

To establish disability impact, a plaintiff has the burden to prove: 

  1. The defendant was an employer or some other covered entity;
  2. The plaintiff is/was an employee of the defendant, or that the plaintiff applied for a job with the defendant;
  3. The defendant had an employment practice or a selection policy that had a disproportionately adverse effect on a protected group;
  4. The plaintiff is part of that protected group;
  5. The plaintiff was harmed;
  6. The defendant’s employment practice or selection policy was a substantial factor in causing the plaintiff’s harm.

If the plaintiff is successful, the defendant must then provide evidence that any given requirement would have a manifest relationship to the employment in question. If the defendant is successful, the plaintiff may still prevail if he shows that the employer was using the practice as a mere pretext for discrimination.

What Do I Do If I Believe I'm a Victim of Sex Discrimination Under FEHA?

Under the FEHA, an employee generally has one-year from the last incident to file a claim with the Department of Fair Employment and Housing (DFEH) to have the DFEH investigate claims of discrimination or to obtain a right-to-sue letter.

If you believe you have been discriminated against due to your sex, gender, sexual orientation, or gender identity you should contact an attorney to file a claim with the DFEH as soon as possible to ensure you do not run out of time. 

Title VII of The Civil Rights Act of 1964 for Sex Discrimination

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to discriminate against an employee, or applicant for employment, based on sex, race, color, national origin, religion. Unfortunately, Title VII does not yet protect gender, sexual orientation, or gender identity. This means that under Title VII an employer is only prohibited from discriminating based on the employee being male or female. Title VII does not protect transgender or homosexual employees, and does not recognize other genders such as agender, bigender, gender fluid, gender nonconforming, etc.

Title VII applies to employers of fifteen (15) or more employees as well as employment agencies and labor organizations.

Title VII also classifies discrimination into two types: disparate treatment and disparate impact. 

What is Disparate Treatment for Sex Discrimination Under Title VII of The Civil Rights Act of 1964?

Disparate treatment is one type of discrimination. It means that the discrimination was intentional. This usually means that the discrimination was apparent on its face (i.e. an employment policy which explicitly discriminates against a racial group).

To establish disability treatment, a plaintiff initially has the burden to prove: 

  1. The plaintiff is part of a protected class (i.e. male or female);
  2. The plaintiff was qualified for the job they held or the job they were applying for;
  3. Despite the qualification, the plaintiff was fired, not hired, or suffered some other adverse employment action; and
  4. The position remains open or was given to someone of the opposite sex. 

If the plaintiff succeeds in proving these things at trial, there is a presumption of discrimination. To rebut this presumption, the burden shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. If the defendant is successful, then the presumption of discrimination is broken. However, the plaintiff is given an opportunity to present evidence showing that the defendant’s alleged reason is not true and is merely pretext for discrimination. It is then up to the jury to decide whom they believe, the plaintiff or the defendant.

What is Disparate Impact for Sex Discrimination Under Title VII of The Civil Rights Act of 1964?

Disparate impact is another type of discrimination. It means that the discrimination was unintentional. This usually means that the discrimination was NOT apparent on its face (i.e. an employment policy which does NOT explicitly discriminate based on sex but has an indirect negative effect on males or females).

Establishing disparate impact under Title VII is a bit more difficult than under the FEHA. Under federal law, there is no set test to determine disparate impact. Each claim is decided on a case-by-case basis. Generally, the plaintiff needs to show that the defendant’s policies or practices have a disproportionately adverse effect on a protected group. The defendant can generally defend themselves by presenting evidence that the policy or procedure is for a legitimate business purpose. If the defendant is successful, the plaintiff has an opportunity to provide evidence that the defendant refuses to adopt a policy that would satisfy the same business purpose but is less adverse.

What Do I Do If I Believe I Have Been Discriminated Against Under Title VII?

Under Title VII an employee generally has 180 days from the last incident to file a charge with the Equal Employment Opportunity Commission (EEOC). In states like California that time frame is expanded to 300 days. After a charge is filled with the EEOC, the agency will investigate the incident and decide whether there is enough evidence for them to pursue the matter for the employee. If the EEOC does not believe there is enough evidence for them to pursue the matter, they will give the employee a “right to sue” letter allowing the employee to sue the employer in federal court.

If you believe you have been discriminated against based on your sex you should contact an attorney to file a charge with the EEOC as soon as possible to ensure you do not run out of time. 

Differences Between The FEHA & Title VII for Sex Discrimination

Although mostly similar, the FEHA and Title VII have some material differences. Some of the differences are listed below. 

  • The FEHA applies to employers who employ 5 or more employees; unlike Title VII which requires 15 or more employees.
  • The FEHA is enforced by the DFEH; whereas Title VII is enforced by the EEOC.  
  • The FEHA generally has a one-year time frame to file a claim or request a right to sue letter from the DFEH; whereas Title VII has a 180 time frame to file with the EEOC (unless the issue is brought in a state which extends the time frame to 300 days, like California). 
  • The FEHA does not have a cap on damage awards; whereas Title VII does place a cap on awards.
  • The FEHA protects against gender, sexual orientation, and gender identity discrimination while Title VII does not. 

For these reasons, it is generally more beneficial for plaintiffs to bring a suit under the FEHA in California. 

Have You Been Suffering From Sex Discrimination?

If you believe you may be suffering from sex discrimination, there is no need to face it on your own. Our attorneys at KAASS Law help the public with all types of employment law cases. Get in touch with us now for assistance. We will make sure your rights are fully protected!

Contact Our Sex Discrimination Lawyers in California Now!

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