"Gender Discrimination" in Cali - How to bring a lawsuit

It is against the law for an employer to discriminate against you based on sex or gender. It is also against the law for an employer to pay you and a co-worker of the opposite sex different wages for equal work. If you are discriminated against based on gender, you can file a lawsuit against your employer for damages.

Below, our California labor and employment law attorneys discuss the following frequently asked questions:

The California Fair Pay Act and California Equal Pay Act aim to reduce gender-based pay disparity.

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Is gender discrimination illegal in California?

Gender discrimination in employment is a violation of California state and federal law. Under California law, the California Fair Pay Act, California Equal Pay Act of 1949, and California Fair Employment and Housing Act (FEHA) make it illegal for an employer to discriminate based on gender.¹

Types of sex discrimination

Under the FEHA, it is an unlawful employment practice for an employer to discriminate against you because of your sex, gender, gender identity, or gender expression. This includes:

Refusing to hire
Firing or discharging you
Refusing to select you for a training program
Discriminating against you in compensation or conditions of employment²

Under the FEHA, discrimination based on “sex” includes more than just the difference between how employers treat a man and woman. It also includes:

Pregnancy or medical conditions related to pregnancy.
Childbirth or medical conditions related to childbirth.
Breastfeeding or medical conditions related to breastfeeding.³

Discrimination based on sex also includes your gender identity and gender expression. Gender expression is your gender-related appearance and behavior and is not necessarily based on your sex assigned at birth.⁴

Unions and labor organizations are also prohibited from excluding, expelling, or restricting membership to you based on sex.⁵ Gender discrimination prohibitions also apply to apprenticeship training programs and employment agencies.⁶⁷

Purpose of sex discrimination laws

Employers and others may have preconceived ideas and gender-based stereotypes that make generalizations about the qualifications, job performance, physical abilities, work habits, and productivity of women and men. The laws prohibiting gender discrimination in employment are intended to protect you by providing work opportunities based on your abilities and not your gender.

Exceptions to sex discrimination laws

There are limited exceptions where an employer’s practice treats a group of employees differently. This is known as the “bona fide occupational qualification” (BFOQ) defense. The employer has to prove that the practice is justified because “all or substantially all of the excluded individuals are unable to safely and effectively perform the job in question and because the essence of the business operation would otherwise be undermined.”⁸

These BFOQ exception cases are very narrow, including limited therapeutic or privacy-based exceptions, such as assigning same-sex childcare specialists or health care workers. Another exception could include hiring a female TSA agent who performs pat-downs on female passengers.

2. What if male employees are paid more than female employees?

The California Equal Pay Act requires employers to pay you the same as other employees who perform “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”⁹

The California Fair Pay Act and California Equal Pay Act are intended to reduce the pay disparity in how men and women are compensated for performing similar jobs. An employer cannot pay men and women different salaries for similar work, except where the employer can demonstrate the wage differential is based on one or more of the following factors:

A merit system
A seniority system
A system that measures earnings by quantity or quality of production
A bona fide factor other than sex (such as education, training, or experience)¹⁰

Bona fide factor test

If an employer is accused of violating the equal pay laws, the employer has to demonstrate that the bona fide factor is:

Not based on or derived from a sex-based differential in compensation;
Job-related with respect to the position in question; and
Consistent with a business necessity.

A “business necessity” is “an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve.”¹¹

Even if the employer is able to demonstrate that a bona fide factor other than sex was used to differentiate compensation, the defense does not apply if you show that an alternative business practice exists that would serve the same business purpose without the wage inequality.¹²

Remedies

Employers who violate the Equal Pay Act are liable to you for unpaid wages and interest. In addition, you may be able to recover liquidated damages (the equivalent of your unpaid wages plus interest).¹³

3. How do I prove discrimination?

It is illegal for an employer to do any of the following based on your sex or gender:

Refuse to hire you
Refuse to select you for a training program
Demote you
Fail to promote you
Fire you
Pay you less
Reduce your salary
Deny equal pay
Deny a promotion
Deny reinstatement
Force you to quit
Harass you
Refuse pregnancy disability leave
Deny your benefits
Discriminate against you in any way

You may witness open or obvious forms of discrimination based on your gender. However, sex discrimination often takes place silently or behind closed doors. Employers often understand that discrimination based on gender is against the law and are careful not to say anything discriminatory in front of any witnesses or put any discriminatory language in writing.

Signs of gender discrimination

There are a number of signs that you may be discriminated against because of your gender. Examples include:

Excluding one sex from important meetings
One sex is regularly promoted while the other is not
Managers suggesting a female employee wear revealing clothing for a male client
A hostile work environment
Sharing offensive comics or memes
Quid pro quo sexual harassment
Making women and men take on different duties
Sudden changes in job performance reviews
Retaliating against you for reporting gender discrimination
Forcing you to quit if you are pregnant
Allowing sexual harassment in the workplace
Supervisors not taking reports of discrimination seriously
Firing you if you express a change in gender identity

Factors unrelated to sex

Some working conditions, hiring practices, and company policies may be discriminatory to men or women even if they are not expressly based on sex. However, employment practices that have a disparate impact on different genders may be deemed discriminatory.

You must show that a practice has a significantly discriminatory impact. The employer then has to show that the requirement has a manifest relationship to your job to avoid a finding of discrimination. However, the practice or policy can not be used as a pretext for discrimination.¹⁴

Gender of job applicants

It is not necessarily a sign of gender discrimination if an employer asks you questions like whether you are male or female, or your height and weight. However, these questions generally need to apply to all job applicants and the information is to be used for legitimate record-keeping or screening purposes and not to discriminate.¹⁵

4. Should I file a complaint with the EEOC?

Gender discrimination is a violation of California state law and federal law. The Equal Employment Opportunity Commission (EEOC) enforces federal sex discrimination laws. The California Civil Rights Department (CRD) generally handles complaints of sex discrimination at the state level.

While state and federal laws protect you against gender discrimination, California law generally offers broader protections than federal law, including giving you more time to file a complaint.

Gender discrimination cases generally require exhausting administrative remedies before you can file a lawsuit against the employer. This may mean you have to go through the CRD complaint process first. However, your attorney may file a complaint with the CRD and obtain an immediate right to sue notice without waiting for the administrative process first.

Complaint process

You can file a gender discrimination complaint directly with the CRD. In general, you must submit a pre-complaint inquiry within three years of the last incident of discrimination, harassment, or retaliation. The complaint can be filed

online
by phone, or
using the form from the CRD website.

The pre-complaint inquiry will initiate an intake interview with the CRD and help determine whether a complaint can be accepted for investigation.

An investigator will contact you within 60 days and discuss the details of the inquiry. If the CRD representative determines a complaint cannot be accepted, the matter will be dismissed, and you have the immediate right to sue your employer in court. If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer. The complaint can also be dual-filed with the EEOC.

After the employer responds to the complaint, the CRD will review the answer. In many cases, the CRD will offer dispute resolution services, which provides a way for you and the employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the CRD will initiate an investigation.

A gender discrimination investigation will determine whether there was a violation of California law. If the investigation finds there was a violation, the case will go the CRD Legal Division. If there is no violation, the case will be closed. After the case is closed, you have the immediate right to take your case to court.

Mediation or litigation

The CRD Legal Division generally requires the parties to go through mediation. Mediation is a type of alternative dispute resolution where a neutral mediator helps the parties come together to find a mutually agreeable solution. A benefit of mediation is that it allows the employer and you to come up with your own way to settle the dispute, without leaving it all up to a judge to decide the outcome.

If the parties cannot settle the dispute through mediation, the CRD could file a lawsuit on behalf of you against the employer. If the CRD does not pursue the claim, it will close the investigation and you have the immediate right to file a lawsuit against the employer.

5. Can I sue my employer for sex discrimination?

If you are discriminated against because of your sex or gender, you can sue your employer for discrimination. You generally have to file a complaint with the CRD or EEOC before you can file a lawsuit in civil court.¹⁶

You are first required to obtain a “right to sue” notice before your case can be taken to court. You can request an immediate right to sue notice, without having to go through a complete CRD or EEOC investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by CRD. Alternatively, you may also wait until the CRD dismisses your case or finds no violation before taking your case to court.

According to the CRD, proceeding directly to court without an investigation by the CRD is only advisable if you have an attorney. Your attorney can obtain a right to sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or another relevant county.¹⁷

The complaint will be served upon your employer and anyone else named in the lawsuit. The defendants will respond to the complaint with a formal answer responding to the allegations, and the case may proceed through litigation. At any point before the end of a trial, the employer and you can negotiate a settlement and settle the case out of court.

6. What are my damages?

The damages available in an employment discrimination lawsuit will depend on the type of discrimination involved and the extent of the harm. This may include money damages, punitive damages, and equitable remedies.

Damages from employment discrimination may include losses from:

Back pay
Front pay
Higher income from a promotion
Higher income from a raise
Benefits
Pension benefits
Bonus payments
Pain and suffering
Emotional distress

Additional damages

If you suffered discrimination, you can also seek attorney’s fees and costs.¹⁸

You also may be eligible to receive punitive damages. Punitive damages act as a way to punish the behavior of the wrongdoer and can deter the employer or other employers from engaging in similar wrongful behavior in the future.

Another remedy in employment discrimination cases is reinstatement. If you have been fired based on your gender, the court can require the employer to rehire you. However, you may not want to return to a discriminatory workplace.

7. Can my boss fire me for reporting discrimination?

You cannot be retaliated against for opposing workplace discrimination.¹⁹

The FEHA protects you if you are retaliated against for:

Opposing workplace harassment
Opposing gender discrimination against other employees
Reporting sexual harassment or discrimination
Assisting with CRD investigations or government inquiries
Filing a harassment or discrimination claim

An employer cannot take retaliatory action, including termination, against you for citing discrimination or harassment violations or filing a sex discrimination lawsuit.²⁰ Firing you for filing a harassment or discrimination claim is considered “wrongful termination”.

If an employer retaliates against you for reporting FEHA violations, you may be able to file a complaint with the CRD or file a lawsuit against the employer for retaliation or wrongful termination.

Additional reading

For more in-depth information, refer to these scholarly articles:

Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment – California Law Review.
Bargaining in the Shadow of the Lawyers: Negotiated Settlement of Gender Discrimination Claims Arising from Termination of Employment – Harvard Negotiations Law Review.
(Un)Equal Protection: Why Gender Equality Depends on Discrimination – Northwestern University Law Review.
Notice Liability in Employment Discrimination Law – Virginia Law Review.
Rethinking Discrimination Law – Michigan Law Review.

Legal References:

Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”)
Same.
Fair Employment and Housing Act 12926 — Definitions. (“(r)(1) “Sex” includes, but is not limited to, the following: (A) Pregnancy or medical conditions related to pregnancy. (B) Childbirth or medical conditions related to childbirth. (C) Breastfeeding or medical conditions related to breastfeeding.”)
Fair Employment and Housing Act 12926 — Definitions. (“(r)(2) “Sex” also includes, but is not limited to, a person’s gender. “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”)
Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organization’s staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.”)
Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.”)
Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.”)
California Code of Regulations 7286.7 — Affirmative Defenses to Employment Discrimination (“(a) Bona Fide Occupational Qualification (BFOQ). Where an employer or other covered entity has a practice which on its face excludes an entire group of individuals on a basis enumerated in the Act (e.g., all women or all individuals with lower back defects), the employer or other covered entity must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.”)
Labor Code 1197.5 LC — Wages, Hours and Working Conditions. (“(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates: (1) The wage differential is based upon one or more of the following factors: (A) A seniority system. (B) A merit system. (C) A system that measures earnings by quantity or quality of production. (D) A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity.”)
Same.
Same.
Labor Code 1197.5 LC(a)(1)(D) (“A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.”)
Labor Code 1197.5 LC — Wages, Hours and Working Conditions. (“(c) Any employer who violates subdivision (a) or (b) is liable to the employee affected in the amount of the wages, and interest thereon, of which the employee is deprived by reason of the violation, and an additional equal amount as liquidated damages.”)
City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, quoting Connecticut v. Teal (1982) 457 U.S. 440 (“To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a signiﬁcantly discriminatory impact. If that showing is made, the employer must then demonstrate that “any given requirement has a manifest relationship to the employment in question,” in order to avoid a ﬁnding of discrimination…Even in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination.’”)
29 CFR 1604.7 — Pre-employment Inquiries as to Sex (“A pre-employment inquiry may ask “Male………, Female………”; or “Mr. Mrs. Miss,” provided that the inquiry is made in good faith for a nondiscriminatory purpose. Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination as to sex shall be unlawful unless based upon a bona fide occupational qualification.”)
Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”); California Assembly Bill 9 (2019).
Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b)…The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.”)
Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b)…In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”)
Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:…(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”)
California Code of Regulations (CCR) tit. 2, § 11021.

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“Gender Discrimination” in California – How to bring a lawsuit