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Sex Discrimination

Fort Worth Employment Attorney :: Dallas Employment Attorney :: Wrongful Termination Lawyer

Sex discrimination is a very broad form of discrimination that affects many aspects of a person’s physical sex and gender roles. Sex discrimination is traditionally thought of as the man perpetrating some form of sexual coercion or harassment on a female victim but sex discrimination and gender discrimination can fit anybody into the perpetrator and victim role. There can be man against woman discrimination, women against man discrimination, man against man discrimination and woman against woman discrimination. Sex discrimination is prohibited in employment by the federal Title VII, the federal Equal Pay Act, the federal Lilly Ledbetter Act and the Texas Labor Code. Working with a sexual harassment attorney can help you navigate these laws and demand justice.

How sex discrimination occurs in the workplace

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Sex discrimination is prohibited in any part of the employment relationship, from hiring practices through termination of employment. Sex discrimination is prohibited when it has a negative effect on obtaining or keeping a job as well as the terms and conditions of employment. Common ways sex discrimination can occur:

  • Job advertisements
  • Recruiting
  • Application processes and applicant screening
  • Interviews
  • Pre-employment inquires
  • Job referrals
  • Job assignments and promotions
  • Compensation (both pay and benefits)
  • Merit reviews, performance evaluation and raises
  • Disciplinary practices
  • Terminations, layoffs and reductions in force (RIF)
  • Harassment
  • Quid pro quo
  • Dress code

Sex discrimination is a particularly broad area of discrimination because it includes both discrimination based on physical attributes as well as personal decisions, such as conformity with gender stereotypes. It also includes discriminatory acts where the perpetrator asks the victim for sexual favors or romantic favors in exchange for a benefit or to prevent something negative, which is known as quid pro quo harassment or quid pro quo discrimination. Sex discrimination is not limited to quid pro quo or hostile workplace discrimination. Sex discrimination, like other forms of discrimination, occurs when an employee is treated less favorably than other employees because of the employee’s sex or gender.

In sex discrimination cases this kind of discrimination often arises in hiring or promotion practices. Women are often the victim of this form of discrimination because they may be stereotyped as “too weak” or “too feminine” to work in manual labor jobs or “too weak”, “too assertive”, “too bitchy”, or “too attractive to be taken seriously” in white collar jobs. Many jobs carry gender or sex stereotypes that one sex or the other should be the only ones to handle those jobs. Some jobs are stereotyped as “male jobs” and some as “female jobs” and the opposite sex may have a hard time getting hired or promoted into those positions.

Gender stereotypes

Individual men and women may also be excluded from jobs or otherwise discriminated against because they do not fit traditional gender roles or do not fit the gender role for a particular job. A man might be “too feminine” or even “too masculine” for certain jobs. Similarly, a woman might be “too feminine” or “not feminine enough” for a particular job. Gender stereotypes can also come into play where the job itself has no stereotype attached but the supervisor feels like an individual does not fit into traditional gender stereotypes and does not want “that kind of person” working in that position.

Compensation discrimination

Sex discrimination also frequently occurs in compensation, whether it is starting pay, benefits, bonuses, or raises. Overall, women tend to receive less pay than men for the same positions. While there is considerable debate what factors cause this difference in pay on a nationwide scale, there is no debate that in some individual cases women are underpaid compared to men performing the same job and the only reason for the difference is a discriminatory belief that the women work less hard or are less valuable to the position. Men can also be discriminated against in compensation and are particularly vulnerable to compensation discrimination when performing jobs that are traditionally considered “female jobs” because they are seen as less valuable. Discrimination in compensation is always wrong regardless of which sex the victim is.

Dress code discrimination

Women are more vulnerable to sex discrimination in dress or grooming codes than men. Employers are permitted to establish different dress codes for men and women and to an extent can even reinforce certain gender stereotypes, such as requiring women to wear makeup. However, employers cannot establish different dress codes solely for the purpose of sexualizing one sex but not the other (where sexualization would not be a regular part of the job, such as a strip club). For example, women cannot be required to wear low cut tops or form fitting uniforms while men wear loose fitting uniforms.

Quid pro quo harassment or quid pro quo discrimination

Quid pro quo harassment or discrimination occurs when a supervisor demands a subordinate employee perform sexual favors or romantic favors, either to the supervisor or somebody else, in exchange for a job benefit or to prevent a detriment to the job. This is the, “have sex with me or you’re fired” or “if you have sex with me I will give you a raise” form of sex discrimination. This does not have to be male supervisor and female victim. The relationship can work the other way or it can be between two people of the same sex. Quid pro quo does not have to be sex. It can be any sexual contact or romantic affairs, such as agreeing to go on a date with the perpetrator.

Hostile work environment/sexual harassment

Harassment occurs when the workplace becomes hostile through the acts of coworkers or management. Harassment can occur through words, pictures, emails, job assignments, threats and even physical contact. Harassment becomes actionable as sex discrimination when it begins to negatively affect your job. It is always actionable when management is perpetrating the harassment. If it is your co-workers, it becomes actionable when management has a reasonable opportunity to stop the harassment but fails to do so.

Pregnancy discrimination

The law also prohibits discrimination on the basis of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act prohibits treating pregnant women or women who recently gave birth to a child differently from other employees with temporary physical impairments. If the employer would give other workers with temporary disabilities time off or light work duty then it must do the same for pregnant employees. However, if the employer does not accommodate other workers it does not have to do anything special for pregnant employees. Pregnant women are also protected from harassment on the basis of their pregnancy. Pregnant employees may be eligible for FMLA leave for pregnancy-related medical conditions, childbirth and for a period following childbirth. Additionally, if there are pregnancy or childbirth-related long-term physical or mental disabilities they may be covered by the Americans with Disabilities Act.

Retaliation

Your employer may also retaliate against you for bringing claims of sex discrimination to the attention of management, HR, or a government agency. This retaliation is unlawful and creates an independent claim against your employer. Your right to work free from sex discrimination includes the right to report unlawful discrimination and take steps to protect your rights.

Remedies for sex discrimination

The law provides remedies to make a victim of sex discrimination whole. These remedies can range from requiring the employer to hire/reinstate/promote/etc. to paying for economic losses, such as lost wages while you try to find a new job or in between losing one job and finding a new one. The specific remedies pursued on an sex discrimination claim depend upon the what negative effects you suffered and what is best for you. If the company was very hostile towards you then it may not make sense to ask the court to reinstate you to your job and instead ask for the company to pay your lost wages. Determining the right course of action is something we will discuss together when you hire The Kielich Law Firm to represent your sex discrimination claim.

How sex discrimination claims are handled

Sex discrimination claims follow the same process as other employment discrimination claims, which is a complex process. Sex discrimination claims begin with a charge filed with the federal (EEOC) and state (TWC) discrimination agencies who will investigate your claims of discrimination. The charge must be filed within a limited period of time after the discrimination occurred to preserve your claims.

During the investigation there may be mediation between you and your employer. If there is a finding of discrimination one of the government agencies may decide to file suit against your employer and we will work jointly to represent your claims. If neither government agency decides it has enough information to find discrimination occurred then we will pursue litigation on our own. From there, the case may settle or go to trial.

All employment discrimination claims are challenging claims for many reasons. The employer controls most of the information that might be out there directly proving discrimination. Often, there is no direct evidence (no smoking gun) of discrimination so the case must be proven by indirect or circumstantial evidence.

How The Kielich Law Firm can help

It is important to act quickly on your claims once you begin to experience discrimination in the workplace. The Kielich Law Firm handles all forms of employment discrimination claims and I am ready to work with you to counsel you on the steps you need to take and represent your claims before the administrative agencies and the courts. Sex discrimination claims are complex and require the expertise I can provide to represent your claims and fight for the fair treatment you deserve. Contact my office today or visit my blog for more information.

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