Prove Gender Discrimination in the Workplace

Employment discrimination in the U.S. includes discrimination based on sex or gender. If you believe that you have been discriminated against because of your gender, you can file a complaint with a federal or state agency and ultimately bring a lawsuit. To prove discrimination, you will need to gain access to your employer’s communications about you. You will probably want to meet with an attorney.

Steps

Understanding Gender Discrimination

1. Understand federal law. Title VII of the 1964 Civil Rights Act prohibits discrimination based on sex or gender. This prohibition applies to discrimination based on pregnancy, gender identity (including transgender status), or sexual orientation. Federal law prohibits gender discrimination in all aspects of employment such as hiring, firing, job assignments, pay, promotions, layoffs, benefits, and other conditions of employment.
   • It is also illegal to harass a person because of sex or gender. Harassment includes unwelcome sexual advances ("sexual harassment") and verbal or physical harassment that may not be sexual in nature but that is based on your gender.
   • Harassment can be directed at an individual or be so severe and pervasive that the whole workplace environment becomes hostile and abusive.
2. Research state and local laws. In addition to federal law you may be covered by state or local laws prohibiting gender discrimination. Such laws may apply to more employers. Federal law does not apply to employers with fewer than 15 employees.
   • States that have passed their own laws often create their own administrative commissions to investigate allegations of gender discrimination. They also have drafted procedures for reporting gender discrimination that may differ from federal procedures. State laws typically afford a person greater rights and protection than do federal laws.
   • For example, California law prohibits discrimination based on sex and gender, gender identity, or gender expression. California law also allows employees or job applicants to file complaints with the state’s Department of Fair Employment and Housing (DFEH). Unlike federal law, California law allows a person to seek immediate permission to sue in court.
   • If your state has an employment commission, you can proceed by contacting either the federal Equal Employment Opportunity Commission or your state administrative agency.
3. Understand the types of gender discrimination. Gender discrimination comes in two forms: disparate treatment and disparate impact.
   • In a disparate-treatment case you allege that you were treated differently from similarly situated employees because of discrimination based on a protected characteristic (in this case, gender). The legal analysis will focus on how similarly situated other employees were. For example, were you equally qualified? It will also consider whether the employer intended to take adverse action against you specifically.
   • In a disparate-impact case, you allege that the employer adopted an employment practice that had discriminatory consequences. Instead of focusing on intent, you show how supposedly neutral policies impacted one group more harshly than others.
4. Meet with an attorney. Whether or not you have a plausible sex-discrimination lawsuit will depend on the facts and circumstances of your particular case. An experienced employment-law attorney can analyze your case and help you with your lawsuit. To find such an attorney, you can visit your state’s bar association, which runs a referral service.
   • You may want to look for a lawyer who has earned certification in employment law. Not every state promotes certification, but some do certify lawyers as employment-law specialists. These typically dedicate a certain percentage of their practice to employment law, take advanced legal-education classes, and receive recommendations from other lawyers or judges. States offering certification often require a lawyer to pass a written exam before being certified.
   • Costs could be a concern for you. The typical employment case might generate between $8,000 and $30,000 in attorney fees. Be sure to discuss alternate fee arrangements with any lawyer you meet with.
   • Attorneys normally bill on an hourly basis for all work. However, many employment attorneys are willing to represent clients under a “contingency fee" agreement. Here the lawyer gets paid a percentage of the award if s/he wins. You might still be responsible for paying court costs such as filing fees and charges associated with court reporters.
   • For additional tips on how to find an employment lawyer, see Find an Employment Lawyer.

Gathering Evidence of Discrimination

1. Preserve communications. It is usually difficult to prove someone’s intent, principally because few people will admit outright that they have discriminated against someone because of gender. Accordingly you will look for circumstantial evidence of this intent.
   • A good place to find circumstantial evidence is in the comments made about you by your employer. Any communication that contains sexist comments would be very helpful to show your employer’s bias.
   • Save emails, letters, memos, and phone messages. All of these could contain biased language.
2. Get a copy of your employment contract. You should have a copy already. If not, ask for one from your Human Resources department. You should also get any documents related to oral agreements concerning terms of employment. This evidence is critical. If your employer can be shown to have departed from the employment contract, you have some proof of discrimination.
3. Look at how the company treats others. To help you prove gender discrimination, you should gather any evidence showing the company's history of favoring one gender over another. For example, if there is a mass layoff, look to see whether the layoff affected men and women about equally or whether the percentages were lopsided.
   • Statistics can be helpful, especially if you are suing a large company. These statistics can establish a pattern and practice of gender discrimination.
   • Be sure to request a list of other charges or lawsuits filed against the company for discrimination, especially gender discrimination. A company with such a history may be revealing a whole culture of gender discrimination.
4. Use discovery to get necessary documents. When you file a lawsuit you gain the right to request documents and other information from the defendant. The defendant, too, can request information from you. This process is called “discovery.” In a gender-discrimination lawsuit you will want to request the following:
   • Your personnel file. The file should contain your initial application for work, your resume, notes from hiring interviews, any correspondence related to the hiring process, and notes or information acquired from background or reference checks.
   • Any document relating to the act or omission at issue. You will want all communications and internal company memoranda that relate to what you believe was discrimination, such as your termination, salary, or the company’s failure to hire or promote you.
   • Notice of termination (if applicable). Also look for documents that reflect criteria used in determining whether to fire or lay off someone.
   • Rules, policies, handbooks, and manuals.
5. Obtain documents to help calculate your damages. To bring a successful gender- discrimination suit, you will need proof of damages. Your damages are what you were deprived of by the employer’s illegal gender discrimination. Get documents related to your salary and benefits.
   • Gather all W-2s and 1099s.
   • Get documents describing retirement or 401(k) plans, profit-sharing plans, insurance (life, health, and disability), and other benefits.

Reporting Gender Discrimination to the Equal Employment Opportunity Commission

1. Determine which agency to report to. Federal anti-discrimination law applies to employers with 15 or more employees. If this describes your employer, you can report gender discrimination to EEOC.
   • If federal law does not cover your employer, you can report gender discrimination to the equivalent agency of your state. If your employer is covered by both state and federal law, you have a choice of where to file your complaint.
   • Use the EEOC’s assessment tool at https://egov.eeoc.gov/eas/ to find out if you should file with EEOC or another agency.
2. File a charge with the EEOC. If you choose to report to them, you can file a charge with any of their field offices. There is a map on the EEOC website of the 53 field offices around the U.S. Contact the office nearest you to ask if you must make an appointment or whether they welcome walk-in's.
   • Don't wait in filing a charge with EEOC. You normally have 180 days to file after the issue arises. This deadline may be extended if your state law provides a later deadline, but you should not wait too long.
3. Write a letter to EEOC. If there is no field office near you, you can file a charge by writing a letter. Include the following information:
   • your name, address, and telephone number
   • your employer’s name, address, and telephone number
   • the number of employees employed there
   • a short description of the events you believe were discriminatory
   • when the events took place
   • your belief that gender discrimination was the motivation for the events at issue
   • your signature
4. File a charge with your state agency. The exact process will vary by state. For example, in California, you must first file a “pre-complaint inquiry.” You can do so in one of four ways:
   • Call 800-884-1684.
   • Print out and mail an inquiry form to any Department of Fair Employment and Housing office.
   • Complete the inquiry form and email it to contact.center@dfeh.ca.gov.

Proving Gender Discrimination in Court

1. File a lawsuit. You begin a lawsuit by filing a complaint. If you have a lawyer, he or she will draft it for you. A complaint will allege the facts surrounding your dispute and ask the court for relief (such as lost wages or reinstatement to a job).
   • Which court you file in depends on whether you are suing under federal or state anti-discrimination law. If you sue under federal law, you would file in federal district court. If you sue under state law, you would file in a state court.
   • To sue, you will need a “Notice of Right to Sue” letter from the administrative agency that you filed your charge with. The EEOC will issue the letter after conducting an investigation. Once you receive your letter, you must file your lawsuit within 90 days.
   • You may want to sue before EEOC completes its investigation. If 180 days have passed since you filed the charge with EEOC, the agency will give you the Notice of Right-to-Sue if you ask. Send a letter to the director of the office investigating your charge. The investigation will be closed once the agency issues the letter.
2. Make a “prima facie” case of discrimination. Your complaint should lay out the different elements of a gender-discrimination claim, and you must present evidence that supports each element. What you need to prove will depend on whether you are suing under state or federal law. It also depends on whether you are claiming disparate treatment or disparate impact.
   • In the employment context, a prima facie case of disparate treatment will generally require you to prove:
     • You are in a protected class (in this case, gender)
     • You suffered an adverse job action (such as termination, demotion, or loss of promotion)
     • Your employer usually treated similarly situated employees of the other gender more favorably
     • You were qualified for the job
   • To make out a prima facie case of disparate impact, you typically will need to prove:
     • The existence of a disparity between the genders
     • The disparity was caused by a specific employment practice, policy, or device
     • The challenged policy is not justified by business necessity
     • The availability to the employer of other measures that were less discriminatory and that would have satisfied the employer's need equally as well
3. Show that the employer’s reasons are mere pretext. If you make out a prima facie case, the employer can respond that it had a legitimate, non-discriminatory motive for the contested action. For example, an employer could explain that a particular job required more physical strength than you possess or that another candidate was otherwise more qualified.
   • Once the employer makes that claim, you have a chance to argue that the reason is simply pretext that masks the real, discriminatory motive. You must prove that the employer’s articulated reason is either factually incorrect or not the true reason for the challenged action.
4. Meet your burden of proof. If you get to trial, you must present to the judge or jury sufficient evidence to carry your burden of proof. You must support each element of your claim with a “preponderance” (majority) of the evidence. This means each element is more likely than not to be true.
5. Present witness testimony. Most evidence is presented in court in the form of witness testimony. For example, you will have an easier time proving gender discrimination if someone overheard your employer make a biased comment about you or about your gender generally. In a trial you can offer testimony as to what you heard and saw.
   • You might also need witnesses to testify about their credentials. For example, if a man was promoted over you, you could call the man as a witness to discuss his credentials. If they are weaker than yours, this is evidence that your employer discriminated against you.
6. Use documents. You might rely on documentary evidence to establish an employer’s discriminatory intent. For example, internal memos or other written communications in which your boss makes biased comments is great evidence to show discriminatory intent.
   • Documents can also establish the company’s normal procedures for hiring, firing, or promoting someone. If the company departed from its written policies in your case (but not others), this could constitute proof that the employer was motivated by a discriminatory intent.
7. Present statistical evidence. Statistics are key in “disparate impact” cases in particular. They can show that a policy that appears neutral on its face actually impacts men and women differently. For example, a physical fitness policy may appear neutral, but if it serves to disqualify three times as many women as men, you have evidence of disparate impact.

Tips

• You should not try to sue an employer for gender discrimination without a lawyer. An attorney is necessary to help you navigate complex court rules. An experienced attorney will also know how to compile compelling circumstantial evidence to prove discriminatory intent or impact.

References

See also

• Explain a Disability on a Job Application Form
• Sue the Government for Discrimination
• Claim Age Discrimination for Apprenticeship Programs
• Help Avoid Employee Lawsuits
• Verify Rehab Treatment for an Employee
• Handle Disciplinary Actions
• Claim Weight Discrimination
• Know if You Should Sign a Covenant Not to Sue
• Defend Yourself in a Wrongful Termination Lawsuit
• File Charges With EEOC

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