Gender Discrimination FAQs | Brown Kwon & Lam

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You work hard to earn a living, yet your employer continuously passes you over for promotions, and even demeans you. If you suspect it is because of your gender, know that you have options to recover what you deserve. Take a look at Brown Kwon & Lam’s gender discrimination FAQs below.

What is gender/sex discrimination?

According to New York law, “gender discrimination can be based on one’s perceived or actual gender identity, which may or may not conform to one’s sex assigned at birth, or based on the ways in which one expresses gender, such as through appearance or communication style.”

Workplace gender/sex discrimination includes the unlawful refusal to hire or promote or to fire someone because of a person’s actual or perceived gender. This includes being or being perceived to be transgender, non-binary, or gender non-conforming. This includes compensating or setting employment benefits differently based upon an employee’s gender.

What is gender profiling in the workplace?

Gender profiling is the intersection of one’s sex and gender as well as the perceived femininity or masculinity of one’s race.

In the workplace, gender profiling may be enforcing that certain roles are more suitable for men, or those who are masculine, while others are more suitable for females or those employees with more feminine traits.

What laws protect employees from discrimination?

The following laws protect employees from gender/sex discrimination in the workplace:

  • Title VII of the Civil Rights Act of 1964: Prohibits employment discrimination on the basis of sexual orientation or gender identity.
  • New York City Commission on Human Rights: Regulates discrimination which includes that on the basis of gender identity, including but not limited to being transgender, non-binary, or gender non-conforming, as well as gender expression.
  • The Equal Pay Act of 1963: Prohibits discrimination based on sex in reference to wages by employers engaged in commerce or in the production of goods for commerce.

What is a “Bona Fide Occupational Qualification” and how does it impact my gender discrimination claim?

Bona fide occupational qualifications (BFOQ) are employment qualifications that employers may consider while making decisions about the hiring and firing of employees. The qualification should relate to an essential job duty and be necessary for the operation of a particular business.

Bona fide occupational qualifications are an exception and defense to Title VII of the Civil Rights Act of 1964. The employer must prove that the requirement is necessary to the success of the business, first. Then they must prove that a specified group or class would be unable to perform the job safely and efficiently.

Is stereotyping enough to constitute discrimination?

One of the most common elements of a discrimination claim is sexual stereotyping. Sexual stereotyping may include instances where employers consider a stereotype associated with one gender. They can do this when assessing the performance of an employee, in the hiring, firing, or promotion process. This can even be based on expected appearance and/or behavior.

What constitutes gender discrimination?

Gender and sex discrimination may occur in any area of the employment process, including:

  • Recruiting
  • Hiring
  • Firing
  • Promotion
  • Advancement
  • Job training
  • Job assignment
  • Working conditions
  • Compensation
  • Benefits
  • Layoffs
  • Terms & conditions
  • Privileges of employment.

Can men be a victim?

Though women most often face gender discrimination, men can also experience it. The laws protecting employees from discrimination in the workplace are not exclusive to women and therefore apply to any employee.

In addition, both the perpetrators of discrimination and the victims can be of any gender. An employer can treat any gender differently in the hiring, firing, or the terms and conditions of employment, or is harassed because of their gender.

What can I recover in a discrimination claim?

In a successful discrimination claim, you may be able to recover the following damages:

  • Current lost wages
  • Future lost wages
  • Loss of benefits
  • Emotional distress
  • Attorneys’ fees
  • Punitive damages (though not typically available against public employers)

What are the types of gender discrimination?

Gender discrimination isn’t just paying someone less because of their sex or not promoting someone because you don’t think it’s suitable for their gender/gender identity to be in a position of power. There are various types include:

  • Sexual harassment: Unwelcome sexual advances or harassing behavior of a sexual nature
  • Pregnancy discrimination: Firing, refusing to provide reasonable accommodations for, or denying lawful maternity for a person who is or may become pregnant
  • Sexual orientation discrimination: Discrimination based upon someone’s actual or perceived sexual orientation
  • Marital status discrimination: Treating employees or applicants less favorably because they are or are not married
  • Gender identity discrimination: Discrimination against an individual who is transgender or because of their gender identity in nonconforming
  • Discrimination based on association: Sex discrimination based upon an individual’s connection with an organization or group that is associated with people of a certain sex.

Experiencing Discrimination at Work? Contact Brown Kwon & Lam

If you believe you have been subjected to gender discrimination, it is best to seek legal representation from a New York City employment law firm, like Brown Kwon & Lam, to ensure you receive the justice you deserve.

If you believe that you were a victim of gender discrimination or harassment, contact us today.

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