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Sex Discrimination in the Workplace

Sex discrimination in the workplace involves the unfavorable treatment a job applicant or employee because of his or her sex, his or her connection with an organization or group that is generally associated with people of a certain sex, or for their gender identity, transgender status, or sexual orientation.[1] Sex discrimination may arise in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and other employment setting or condition.

sex discriminationThese types of claims continue to arise since earlier landmark cases, such as the 1971 case against Martin Marietta Corp., where the court unanimously held that employers could not refuse to hire women with pre-school aged children while hiring men with children of the same age. Claims can be presented individually, or as a class action. For example, a $39 million settlement was reached in 2013 in a pending gender bias class action lawsuit against Merrill Lynch (acquired by Bank of America Corp.) in which female brokers claimed they were paid less than men and deprived of handling their fair share of lucrative accounts. More recently, in January of 2016,  Wal-Mart was ordered to pay a former pharmacist about $31 million after a New Hampshire federal jury found the company guilty of disciplining her more harshly than it did her male coworkers. The company was also found guilty of terminating her after she complained that her medical data in Wal-Mart’s patient records had been improperly disclosed by co-workers.

 State, federal and local laws regulating sex discrimination

The Florida Civil Rights Act (FCRA) makes it illegal for an employer to discriminate on the basis of sex, among other factors. For this type of discrimination, the statute covers employers with 15 or more employees. The Florida Commission on Human Relations (FCHR) is the state agency overseeing discrimination in Florida.

Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that prohibits employment practices that discriminate against any individual because of such individual’s sex, among other factors. It also prohibits employers from retaliating against an applicant or employee who asserts his or her legal rights.[2] In addition, the Pregnancy Discrimination Act (PDA) amended Title VII to forbid discrimination based on pregnancy when it comes to any aspect of employment. Also, under the Equal Pay Act of 1963 (EPA), employers are banned from discriminating on the basis of an employee’s sex in the payment of wages.[3] The Equal Employment Opportunity Commission (EEOC) is the federal agency overseeing these federal laws.

Employers should also be aware of local ordinances that may impose additional requirements on employers within the locality. For example, a City of Orlando’s anti-discrimination ordinance applies to employers with 5 or more employees working more than 30 hours per week, or more than 10 employees, irrespective of the number of hours worked per week. It makes it illegal to discriminate against an individual based on sex, among other factors. The City of Orlando’s Human Relations Review Board is responsible for evaluating complaints.

 Sex discrimination through pre-employment inquiries

Any question during a pre-employment inquiry about an applicant’s sex, marital status, pregnancy, medical history of pregnancy, future child bearing plans, number and/or ages of children or dependents, provisions for child care, abortions, birth control, ability to reproduce, and name or address of spouse or children are generally viewed as “non job-related” and pose problems under Title VII, unless the question is justified under a “bona fide occupational qualification” (BFOQ) and is essential to a particular position or occupation.

In addition, questions posed to members of one sex and not to members of the other sex may be indicative of discrimination, as are questions suggesting limitations or special treatment of one sex versus the other when made in connection with prospective employment (unless justified under a BFOQ).

 Sex discrimination through harassment or employment policy

Sex discrimination can occur through workplace sexual harassment or through a discriminatory employment policy or practice. The offender could be an employee supervisor, co-worker, contractor, and even a customer, and it can be a woman or a man.

Sexual harassment is a form of illegal discrimination, and it is not limited to the request of sexual favors or the making of sexual advances. It also includes offensive remarks about a person’s sex and derogatory remarks about the person’s sex in general.[4]

An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not related to the job or necessary to the business operation.

 Pregnancy, childbirth, and related medical conditions

Federal law protects a woman (applicant or employee) from being treated unfavorably in the workplace because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. In addition, the Florida Supreme Court has ruled that FCRA’s ban on discrimination based on gender can also cover claims of pregnancy discrimination. (Delva v. The Continental Group, Inc., No. SC12-231, Fla. Apr. 14, 2014).[5]

 Recovery

Recovery under federal law may include attorney’s fees, back pay, reinstatement or front pay, compensatory (e.g., emotional distress) and punitive damages. Liquidated damages, interest, and costs may also be available, depending on the claim.  In the case of employer retaliation, injunctive relief is also available. In addition, Florida state law allows the recovery of punitive damages, injunctive and/or affirmative relief (e.g., to stop the employer’s actions and/or make the injured employee whole).

As mentioned at the beginning of this article, damages for sex discrimination could reach multi-million dollar figures. However, the award depends on the type of claim, the individual facts of the case, and how it is pursued. For additional information, see the Damages in Discrimination Claims blog article.

 Processing a Discrimination Claim

Due to the specific processes that must be followed and the applicable time limits for agency and court filing, it is in an employee’s best interest to become informed, including engaging the assistance of an attorney to assist in their discrimination matter.  An employer facing the defense of a discrimination claim should engage legal counsel to prepare for forthcoming administrative inquiries and potential litigation.

For more information on processing and managing a discrimination claim, see the Processing Claims with the EEOC and Processing Claims with the FCHR blog articles.

Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a sex discrimination situation and offer legal representation, if necessary. Click here to contact an attorney now.

[1] See the Gender Identity, Transgender Status, and Sexual Orientation Discrimination blog article for specific information in this subject.

[2] The topic of retaliation is addressed in more detail in the Whistleblower Laws, Whistleblower Protection Act, and False Claims Act blog articles.

[3] See the Unequal Pay blog article for more information.

[4] See the Sexual Harassment blog article for more information.

[5] See the Pregnancy Discrimination blog article for more information.

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