FLORIDA GENDER DISCRIMINATION LAWYERS

Although sex/gender discrimination was made an unlawful employment practice by federal law in 1964, discrimination based on sex/gender continues to create significant obstacles for women in the workplace. The laws against sex/gender discrimination protect employees against a broad spectrum of on-going problems they may encounter in the workplace, including sexual harassment, stereotyped beliefs about the different roles and abilities of men and women, equal treatment between the sexes, and opportunity for high-level advancement. Discrimination on the basis of sex/gender most commonly occurs when an employer treats you differently or less favorably from other employees of the opposite sex. Both male and female employees also endure sex/gender discrimination based on negative and stigmatizing stereotypical beliefs about sex/gender, including myths or assumptions about a man’s or a woman’s inability to perform certain types of work. For more than 15 years, our Central Florida employment discrimination attorneys have been dedicated to representing employees who have been victimized by sex/gender discrimination in the workplace.

Laws Prohibiting Sex/Gender Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, make it unlawful for an employer to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment because of sex. Title VII’s and the FCRA’s protection against sex discrimination extends to all employees and applicants for employment. Title VII and the FCRA prohibit discrimination because of sex with respect to all aspects of employment, including hiring, compensation, promotion, transfer, work assignments, discipline, and termination. As determined by the U.S. Supreme Court in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), the prohibition against sex discrimination protects men as well as women.

The Terms “Sex” & “Gender” Are Used Interchangeably

Although Title VII and the FCRA both use the term “sex” as the type of discrimination prohibited, the U.S. Supreme Court has used the terms “sex” and “gender” interchangeably. For example, the Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) stated that the prohibition against discrimination because of “sex” means that “gender must be irrelevant to employment decisions.” In harmony with Supreme Court precedent, courts use the terms “sex” and “gender” interchangeably in enforcing the mandate against sex discrimination. For example, the U.S. Ninth Circuit Court of Appeals in Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) explained that for purposes of Title VII “the terms ‘sex’ and ‘gender’ have become interchangeable.” Thus, courts consider the terms “sex” and “gender” to have the same meaning for purposes of the prohibition against discrimination because of “sex.”

Discrimination On The Basis Of Sex/Gender Stereotypes

Under Title VII and the FCRA, employers are prohibited from making employment decisions on the basis of sex or gender stereotypes. “In forbidding employers to discriminate against individuals because of their sex,” as explained by the U.S. Supreme Court in City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Thus, the U.S. Supreme Court has long recognized that unlawful discrimination can derive from stereotypes based on sex or gender. In applying Supreme Court precedent, courts have determined that stereotypical attitudes about men or women are not a legitimate reason for treating one sex differently from the other sex. In prohibiting employment decisions on the basis of sex or gender stereotyping, courts have invalidated company policies for refusing to hire women as truck drivers, men as airline flight attendants, and women with school age children.

Evidence of sex or gender stereotyping can be used to prove that an employment decision was unlawfully based on sex. Set forth below are remarks reflecting sex or gender stereotypes made by supervisors or managers in actual sex/gender discrimination cases filed in state and federal courts. The employee claiming sex/gender discrimination used the remarks in attempting to prove that sex or gender played an impermissible role in the challenged employment decision.

• * “Women are a lot more emotional and a lot more sensitive so they’re going to need a little bit more time”; women lack “aggressiveness”; women are “not tough enough”; women are “always worried about the nitpicking stuff and never about the stuff that counts”; “woman are not mechanically inclined;” women “should make family their first priority”; “it is a man’s business”; “it’s just like a woman”; “men are stupid and that’s why I don’t have one”; “that stupid man”; “a woman was not competent enough to do the job”; “it’s hard to pass up a woman with a master’s degree”; women get “nervous” and “easily upset.”
• * Female employee lacked incentive because her husband “made too much money”; female employee “would not move because she was a woman with a family”; female employee did not deserve overtime because she was not “a breadwinner”; asking a female employee whether “she would be able to manage her work and family responsibilities”; female employee “would be happier at home with her children”; male received position because manager wanted a “guy” because a “guy” would be able to take customers “out drinking.”

Discrimination based on sex or gender stereotypes also includes discrimination based on an employer’s belief that an employee fails to conform to societal expectations or stereotypes concerning how a particular sex should look or behave. Evidence that an employment decision was based on an employee’s failure to conform to expected gender stereotypes constitutes discrimination because of sex. As the U.S. Supreme Court explained in Price Waterhouse, an employer cannot make employment decisions based on a requirement that employees “match the stereotype” associated with their particular sex. Thus, as noted by the U.S. First Circuit Court of Appeals in Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999), Title VII forbids discrimination “because one fails to act in the way expected of a man or woman.”

Set forth below are examples of remarks which reflect a belief that an employee failed to conform to traditional gender stereotypes and provide evidence of discrimination on the basis of sex/gender.

• * Remarks reflecting that a female employee failed to comply with societal stereotypes of how women should appear or behave, such as a female employee should “walk more femininely,” “talk more femininely,” “dress more femininely,” “wear make-up,” “have her hair styled,” or “wear jewelry.” Likewise, a female employee is “too macho,” “masculine,” “not feminine enough,” “acts like a man,” or “overcompensates for being a woman.”
• * Remarks reflecting that a male employee failed to comply with societal stereotypes of how men should appear or behave, such as stating a male employee “whines like a woman,” “acts like a woman,” “acts too feminine,” “sounds like a woman,” “does not act like a man,” “walks like a woman,” and “needs to act like a man.”
• * Referring to a female employee as “he” or “him” and referring to a male employee as “she” or “her.”

Compensation Discrimination On The Basis of Sex/Gender

Title VII and the FCRA prohibit discrimination in compensation against any individual on the basis of sex. To establish a prima facie case of compensation discrimination on the basis of sex, an employee must demonstrate, in relevant part, that he or she occupies a job similar to that of higher paid employees of the opposite sex. In evaluating the similarity of jobs, courts look to whether the jobs involve similar tasks, require similar skill, effort, and responsibility, and involve similar working conditions. If the employee claiming compensation discrimination makes such a showing, the employee must then establish that the compensation disparity is attributable to intentional discrimination on the basis of sex.

The Equal Pay Act of 1963 (EPA), which is part of the Fair Labor Standards Act of 1938, prohibits employers from paying an employee at a rate less that paid to employees of the opposite sex for equal work. A prima facie case under the EPA has two requirements.

• * First, the complainant must show that the employer pays different wages to employees of the opposite sex for equal work.
• * Second, in order to satisfy the equal work requirement, the complainant must show the jobs require equal skill, effort, and responsibility, and are performed under similar working conditions

Thus, a claim under the EPA requires a comparison of the complainant’s work and earnings to that of an employee of the opposite sex. If the complainant establishes a prima facie case, the employer is liable unless it proves that the pay differential is justified by one of four exceptions under the EPA. The four defenses available to the employer are: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex/gender. In order to establish an exception under the EPA, the employer must also show that sex played no role in the wage differential. In other words, as determined by the U.S. Supreme Court in Corning Glass Works v. Brennan, 417 U.S. 188 (1974), the employer, not the employee, must prove that the actual wage disparity is not sex-based.

The EPA is much more limited in scope than Title VII. The EPA is restricted to sex-based discrimination in compensation and does not prohibit sex-based discrimination with respect to other aspects of employment. In contrast, Title VII prohibits sex-based discrimination in all aspects of employment, including compensation, hiring, promotion, training, discipline, and termination. Moreover, the equal work requirement makes the EPA far more restrictive than Title VII. Under the EPA, the employee of the opposite sex must have been doing equal work. As explained by the U.S. Supreme Court in County of Wash. v. Gunther, 453 U.S. 161 (1981), employees can bring a claim for sex-based discrimination in compensation under Title VII even if their jobs are not equal to the preferred employees of the opposite sex within the meaning of the EPA. However, the EPA, unlike Title VII, does not require a showing of that the wage differential was motivated by discriminatory intent.

Most Common Form Of Sex/Gender Discrimination

Sex/gender discrimination in the workplace most often occurs when the employer treats an employee differently or less favorably than other employees of the opposite sex. In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the U.S. Supreme Court broadly read Title VII “to strike at the entire spectrum of disparate treatment of men and women in employment.” Showing that an employer treated an employee of a particular sex differently or less favorably from employees of the opposite sex is a form of circumstantial evidence used to prove sex/gender discrimination. When the treatment of the employee claiming sex/gender discrimination differs from that accorded to employees of the opposite sex, a discriminatory motive may be inferred.

For example, the employer terminates a female employee for unprofessional behavior, but the employer does not terminate male employees who were involved in or accused of the same or similar conduct. Likewise, the employer terminates a male employee because of insubordinate conduct, but the employer does not terminate female employees who engaged in similar or worse acts of insubordination. Similarly, the employer terminates a female employee for leaving work without permission, but the employer does not terminate male employees accused of the same infraction. As these examples are intended to illustrate the disparate treatment theory of discrimination, whether legal grounds exist for filing a sex/gender discrimination case would depend on the facts and circumstances in each particular case.

Proving You Were Subjected To Sex/Gender Discrimination

As discussed more fully in our section pertaining to discrimination, because an employer will rarely admit to a discriminatory motive when subjecting an employee to an adverse employment action, employment discrimination cases almost always must be proven by circumstantial evidence. In our section pertaining to discrimination, we identify some of the types of circumstantial evidence that can be used to prove that an individual’s race, color, national origin, sex, pregnancy, religion, age, or disability may have played a role in the challenged employment decision.

The circumstantial evidence identified in our section pertaining to discrimination applies with equal force in the context of sex/gender discrimination claims. However, some forms of circumstantial evidence arise more often or have special status in the context of sex/gender discrimination. In the sex/gender discrimination context, the types of circumstantial evidence that also can be used to prove that an individual’s sex/gender may have played an impermissible role in the challenged employment decision include:

• * In a termination case, the employer replaces the employee claiming sex discrimination with a person of the opposite sex. In a failure to hire or promote case, the employer selects a person of the opposite sex.
• * Remarks by supervisors or managers reflecting an intention to satisfy the sex/gender preferences of customers.
• * Comments by supervisors or managers reflecting sex/gender stereotypes.
• * Remarks by supervisors or managers reflecting a belief that the employee failed to conform to expected gender stereotypes.
• * The employer segregates jobs or job duties by sex.
• * Evidence of sexual harassment towards the employee claiming sex/gender discrimination or other employees of the same sex in the workplace.
• * The employer’s failure to prevent recurrence of sexually harassing behavior towards the employee claiming sex discrimination or other employees in the workplace despite a supervisor’s or manager’s knowledge of the harassment.
• * Derogatory sex/gender-related remarks, insults, or jokes by co-employees, supervisors, or managers against the employee claiming sex/gender discrimination, other employees of the same sex, or customers of the same sex.
• * The employer’s failure to stop derogatory sex/gender-related remarks, insults, or jokes in the workplace despite knowledge of a supervisor or manager of such comments. Such evidence reflects that the employer condoned the discriminatory comments.
• * Evidence that the employer has discriminated against other employees of the same sex as the employee claiming sex/gender discrimination. For example, evidence that the employer has discriminated against other employees of the same sex in hiring, pay, training, promotion, or termination is a recognized method for inferring discrimination against the employee claiming sex/gender discrimination.
• * Evidence that the employer has discriminated against customers of the same sex as the employee claiming sex discrimination.

This list is not exclusive and there are many forms of circumstantial evidence that can be used to prove that an individual has been subjected to sex/gender discrimination. However, if any of these things have happened to you or occurred in the workplace, you may have suffered sex/gender discrimination depending on the facts and circumstances in your particular case.

Discriminatory Remarks Reflecting Sex/Gender Discrimination

Although not required to prove sex/gender discrimination, derogatory sex/gender-related remarks, insults, or jokes by supervisors or managers are the most powerful evidence of sex/gender discrimination. The sex/gender-related remarks, insults, or jokes can be about the employee claiming sex/gender discrimination, other employees of the same sex, or other individuals of the same sex. For purposes of illustration, set forth below are examples of derogatory sex/gender-related remarks, insults, and jokes made by supervisors or managers in actual sex/gender discrimination cases filed in state and federal courts. The employee claiming sex/gender discrimination used the remarks in attempting to prove that sex/gender played an impermissible role in the challenged employment decision.

• * Remarks reflecting a bias, hostility, or negative attitude towards the employee because of his or her particular sex, such as stating: female employee was a “senile old woman”; female employee was “crazy old woman”; female employee “would never be worth as much to the company because she could not participate in the community”; female employee was “on permanent menopause”; “even though women aren’t typically in that type of position we’ll see what happens when we throw your name to corporate”; and male employee was given the account “because the customer requested it.”
• * Remarks reflecting a bias, hostility, or negative attitude towards other employees because of their particular sex, such as stating: there were “hysterical women” in the company; “none of you women will ever go anywhere”; a woman in the position “does not project the right image to the public”; and “women were the worst thing that had happened to the company.”
• * Remarks reflecting a bias, hostility, or negative attitude towards members of a particular sex, such as stating: “I hate having women the office”; a woman “would never be considered” for the position”; I don’t like working for a woman”; “women shouldn’t be in management positions”; “that’s why we need a guy in charge”; I don’t want “skirts” working for me; “we can’t have women in management;” and the company “needs a man in the position.”

Sex As A Job Qualification: The BFOQ Defense

Under Title VII and the FCRA, an employer is prohibited from treating an employee less favorably than other employees on the basis of sex. Employers are only permitted to treat men and women differently where sex is a bona fide occupational qualification (BFOQ) for a particular job. In asserting the BFOQ defense, an employer is attempting to justify a policy or practice that discriminates on the basis of sex and would otherwise constitute a violation of Title VII and the FCRA. The BFOQ defense generally arises in circumstances where an employer claims that sex is an essential part of a particular job and refuses to employ a particular sex in the job. In UAW v. Johnson Controls, 499 U.S. 187 (1991), the U.S. Supreme Court characterized the BFOQ defense as a “narrow exception” to the prohibition against sex discrimination which applies only in “special situations.”

An employer seeking to justify a sex-based policy or practice as a BFOQ bears the burden of establishing two elements. First, the employer must prove that the sex-based job qualification relates to the essence, or to the central mission, of the employer’s business. As stated by the U.S. Fifth Circuit Court of Appeals in Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 (5th Cir. 1979), this means that “discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.” Second, the employer must prove that there is a substantial factual basis for believing that all or nearly of the excluded sex are unable to safely and efficiently perform the duties of the job involved. As an alternative to the all or nearly all requirement, an employer can demonstrate that it is impossible or highly impracticable to determine on an individual basis whether members of the excluded sex can perform the duties of the job involved safely and efficiently. In construing the narrow BFOQ exception, courts have determined that customer preferences or sex stereotypes are not justifications for the BFOQ defense.

Sexual Harassment

As discussed more extensively in our section regarding hostile work environment harassment, Title VII and the FCRA also protect employees against sexual harassment in the workplace. Sexual harassment is a form of sex discrimination. Generally, sexual harassment takes the form of sexual advances, verbal conduct of a sexual nature, physical conduct of a sexual nature, and requests for sexual favors. Sexual harassment which is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create a hostile working environment violates Title VII and the FCRA.

Protection Against Retaliation

As discussed more fully in our section pertaining to retaliation, employees are protected against retaliation when they complain about sex/gender discrimination or sexual harassment in the workplace. Under Title VII and the FCRA, employers are forbidden from subjecting an employee to an adverse employment action in retaliation for making a complaint about sex/gender discrimination or sexual harassment. Prohibited retaliatory adverse employment actions include reduction in pay or hours, demotion, denial of promotion, suspension, and termination.

Employment Law Blog

We offer more information about sex/gender discrimination and sexual harassment in our employment law blog.

Contact Us Today For A Free Initial Consultation

If you are experiencing or have experienced sex/gender discrimination in the workplace, please contact us for a free initial consultation with our Ocala based sex/gender discrimination attorneys. You will receive personalized and individual attention from our employment law attorneys. We have extensive experience litigating sex/gender discrimination cases in state and federal court. Our employee rights law firm takes sex/gender discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your sex/gender discrimination case and fight for your employee rights.