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Fighting For Equal Rights For All Employees
The Employee's Voice And Advocate

Gender Discrimination Lawyers Serving Central Florida, Including Citrus, Marion & Alachua Counties

With Employment Law Attorneys Serving Central Florida, Including Citrus, Marion & Alachua Counties

Q: Am I protected from sex discrimination at work by federal and Florida law?

A: Yes. Title VII of the Civil Rights Act of 1964 (Title VII) is the federal law that protects employees from sex discrimination in the workplace. The Florida Civil Rights Act is the Florida law that protects employees from sex discrimination in the workplace.

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Q: Is there any difference between federal and Florida law regarding sex discrimination?

A: The Florida Civil Rights Act (FCRA) is patterned after Title VII of the Civil Rights Act of 1964 (Title VII). Because the FCRA is patterned after Title VII, courts interpret the two statutes as if they were one and the FCRA is given the same construction as Title VII.

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Q: Is there any difference between sex discrimination and gender discrimination?

A: Although Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act both use the term “sex” as the type of discrimination forbidden, courts have used the terms “sex” and “gender” interchangeably. Consequently, courts consider the terms “sex” and “gender” to have the same meaning for purposes of the prohibition against discrimination because of “sex.”

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Q: When is an employment decision based on sex?

A: In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court explained that the prohibition of discrimination because of sex in Title VII of the Civil Rights Act of 1964 (Title VII) means that “gender must be irrelevant to employment decisions.” Thus, an employment decision is based on sex when an individual’s sex was all or part of the motive for the decision. It is not necessary that an individual’s sex be the sole or only motive for the employment decision. Rather, when an individual’s sex plays a role in an employment decision, gender is not irrelevant to the decision and Title VII’s prohibition against sex discrimination is violated.

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Q: In order to have a gender discrimination case must an employer tell me that the employment decision was based on my gender?

A: No. It is not necessary for an employer to tell you that the employment decision was made because of your gender in order to bring a gender discrimination lawsuit. As explained by the U.S. Second Circuit Court of Appeals in Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991), “an employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s personnel file, attesting to discriminatory intent.” Thus, an employer will almost never tell an employee that the employment decision was made because the employee is a woman or man. Because the employer will almost never admit to a discriminatory motive when making an employment decision, gender discrimination cases are almost always proven by circumstantial evidence.

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Q: How do employers usually discriminate against employees on the basis of sex?

A: In most sex discrimination cases, employers discriminate against the employee on the basis of sex by treating the employee differently or less favorably from employees of the opposite sex. Differences in treatment tend to show that the employer’s proffered explanation for the employment decision was not the real reason and that sex discrimination was the real reason. For example, an employer terminates a female employee for alleged misconduct, but does not terminate male employees who engaged in the same or even worse misconduct. Under such circumstances, the differences in treatment are evidence of the employer’s sex-based discriminatory motive and are often sufficient, standing alone, to prove sex discrimination. Differences in treatment are a form of circumstantial evidence used to prove discrimination cases, including sex discrimination cases

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Q: What other circumstances reflect that I was discriminated against on the basis of gender besides differences in treatment?

A: The types of evidence that can be used to prove a gender discrimination case may take a variety of forms. No single type of evidence is required to prove that an employee was discriminated against on the basis of gender. The different types of treatment that can be used to prove that an employee’s gender played a role in an employment decision include: (1) the reason given by the employer for the decision is a lie, a phony reason, or has no basis in fact; (2) the employer papered the employee’s personnel file with disciplinary actions or negative employment evaluations to justify the decision; (3) the employer violated its own company policy when making the decision; (4) the employer scrutinized the employee’s work performance or work attendance to justify the decision; (5) the employer failed or refused to get the employee’s “side of the story” before making the decision; (6) the employer gave different reasons for the decision; (7) sexist or sex stereotyping remarks by a supervisor, manager, or employee involved in making the decision; and (8) the employer discriminated against other employees on the basis of gender. These different types of evidence are a form of circumstantial evidence used to prove discrimination cases, including gender discrimination cases.

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Q: Are sexist or sex stereotyping remarks “smoking gun” evidence of sex discrimination?

A: Depending on the circumstances, such as when the comments were made and the substance of the comments, any remark reflecting bias, prejudice, or hostility towards employees because of their gender, including sexist and sex stereotyping remarks, by an employee who was involved in making the challenged employment decision can constitute “smoking gun” evidence of sex discrimination.

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Q: Can I still bring a sex discrimination case when I was fired and replaced by an individual of the opposite sex?

A: Yes. An employee claiming to have been terminated on the basis of sex does not have to show that he or she was replaced by an individual of the opposite sex in order to have a meritorious claim for sex discrimination. Consequently, employers cannot immunize themselves from sex discrimination lawsuits simply by replacing the terminated employee with an individual of the opposite sex.

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Q: Are employment policies based on stereotypes about the different abilities of men and women an unlawful employment practice?

A: Yes. Some employers maintain employment policies on the basis of stereotyped assumptions or beliefs about the different abilities of men and women. Employment policies that treat men and women differently on the basis of such gender or sex stereotypes violate Title VII of the Civil Rights Act of 1964. In forbidding employers to discriminate on the basis of sex, as explained by the U.S. Supreme Court in Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978), “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

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Q: Are employers allowed to make employment decisions on the basis of gender or sex stereotypes?

A: No. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers cannot make employment decisions on the basis of gender or sex stereotypes. Federal courts have consistently ruled that Title VII prohibits gender or sex stereotyping discrimination. As explained by the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their [gender].”

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Q: What is an example of unlawful gender or sex stereotyping discrimination?

A: In Haynes v. W.C. & Co., Inc., 52 F.3d 928 (11th Cir. 1995), a female employee claimed that she was not promoted to a position with the sole function of overseeing collections because of her sex. In rejecting her for the promotion, the company’s president told her that “women were simply not tough enough to do the job.” The president also told another employee that “it would require a man to do the job.” In finding that the president’s remarks were direct evidence that the female employee was not promoted because of her sex, the U.S. Eleventh Circuit Court of Appeals characterized the president’s comments as “classic examples” of gender or sex stereotyping. In support of its decision, the Eleventh Circuit pointed out that the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) found that a remark by a male partner, who was considering a female employee for partnership, that “women were not even capable of functioning as senior manages” constituted impermissible gender or sex stereotyping.

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Q: Are employers allowed to make employment decisions on the basis of an employee’s perceived failure to conform to the stereotypes of his or her gender?

A: No. Employees who are discriminated against because they are perceived as failing to conform to gender or sex stereotypes are victims of sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). This theory of sex discrimination is known as a “gender stereotyping” or “sex stereotyping” claim. Federal courts have consistently upheld Title VII claims based on the gender or sex stereotyping theory of sex discrimination. When an employee’s perceived failure to conform to the stereotypes of his or her gender leads to an adverse employment action, the employee has been discriminated against on the basis of sex in violation of Title VII. As explained by the U.S. Ninth Circuit Court of Appeals in Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), “discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.”

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Q: How do employers discriminate against an employee for failing to conform to gender or sex stereotypes?

A: An employer discriminates against a male employee for failing to conform to gender or sex stereotypes when the employer subjects him to an adverse employment action, such as demotion or discharge, because he does not comply with societal stereotypes of how men should look and behave. An employer discriminates against a female employee for failing to conform to gender or sex stereotypes when the employer subjects her to an adverse employment action, such as demotion or discharge, because she does not comply with societal stereotypes of how women should look and behave.

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Q: What is an example where an employer discriminated against an employee because of the failure to conform to gender or sex stereotypes?

A: In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), Hopkins, the female employee who brought the sex discrimination lawsuit, was a senior manager at an accounting firm who had been denied a partnership because she was “macho” and failed to “walk . . . femininely, talk . . . femininely, dress . . . femininely, wear make-up, have her hair styled, [or] wear jewelry.” As explained by the U.S. Sixth Circuit Court of Appeals in EEOC v. R.G. & G.R. Harris Funeral Homes, 2018 WL 177669 (6th Cir. 2018), the Price Waterhouse Court found that Hopkins “was not discriminated against for being a woman per se, but instead for failing to be womanly enough.” In other words, Hopkins was denied a promotion because she was perceived as failing to comply with societal stereotypes concerning how a woman should look and behave. The Price Waterhouse court held that Title VII not only protects Hopkins from discrimination because she is a woman, it also protects Hopkins from discrimination based on her perceived gender non-conforming appearance and behavior—that is, discrimination because she failed to look and act like a woman.

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Q: Can an employer defend itself against a gender or sex stereotyping claim by showing that it requires both sexes to conform to gender or sex stereotypes?

A: Employers sometimes argue that gender or sex stereotyping violates Title VII of the Civil Rights Act of 1964 only when the employer’s gender or sex stereotyping results in different treatment of men and women. Employers further claim that because they require both men and women to comply with the stereotypes of their gender, they have not treated employees differently on the basis of sex and, thus, have not discriminated against employees on the basis of sex. However, an employer engages in unlawful sex-based discrimination even if it expects both male and female employees to conform to certain notions about how each should look and behave. As explained by the U.S. Second Circuit Court of Appeals in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), an employer cannot defend itself “by claiming that it fired a gender non-conforming man as well as a gender non-conforming woman any more than it could persuasively argue that two wrongs make a right.”

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Q: Am I protected from unequal pay on the basis of sex by federal and Florida law?

A: Yes. Title VII of the Civil Rights Act of 1964 and the Equal Pay Act are the federal laws that prohibit discrimination in compensation on the basis of sex. The Florida Civil Rights Act is the Florida law that prohibits discrimination in compensation on the basis of sex. Under these laws, employers are forbidden from paying male and female employees different wages for substantially equal work.

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Q: Does the gender wage gap persist as a significant problem in the American workplace?

A: In Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), the U.S. Ninth Circuit Court of Appeals explained that the “wage gap between men and women is not some inert historical relic of bygone assumptions and sex-based oppression.” Rather, the Rizo court observed, “the gap persists today: women continue to receive lower earnings than men across industries, occupations, and education levels.” In fact, the Rizo court pointed out that “collectively, the gender wage gap costs women in the U.S. over $840 billion a year.”

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Q: Can an employer refuse to hire or promote a woman because it has to pay her what a man makes?

A: No. In Wilson v. Susquehanna Township, 55 F.3d 126 (3d Cir. 1995), the U.S. Third Circuit Court of Appeals ruled that a remark by a manager involved in the decision not to promote a female employee that “if he had to pay a woman what a man makes he wouldn’t hire any women” was direct or “smoking gun” evidence that the female employee was not promoted because of her sex in violation of Title VII of the Civil Rights Act of 1964.

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Q: Can an employer refuse to hire women with pre-school age children?

A: In Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the U.S. Supreme Court ruled that an employer could not refuse to hire women with pre-school age children when it employed men with pre-school age children. The Court explained that Title VII of the Civil Rights Act of 1964 “requires that persons of like qualifications be given employment opportunities irrespective of their sex.” Thus, an employer is not permitted to have “one hiring policy for women and another for men—each having pre-school age children.”

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Q: Can an employer maintain a policy that applies to married women but not against married men?

A: The U.S. Equal Employment Opportunity Commission (EEOC), which is the federal agency responsible for interpreting and enforcing Title VII of the Civil Rights Act of 1964 (Title VII), has adopted the position that an employer’s policy that applies to married women but not against married men is discrimination based on sex in violation of Title VII.

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Q: Can an employer base employment decisions on a customer preference for a particular gender?

A: Generally, employers cannot justify sex-based employment decisions based on a customer preference for a particular gender. For example, in Morris v. Bianchini, 43 FEP 674 (E.D. Va. 1987), the U.S. District Court of the Eastern District of Virginia ruled that a health club’s refusal to hire a woman as athletic director because its customers preferred a “male macho image” was unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

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Q: Can an employer justify a sex-based employment policy on the need to protect the privacy interests of customers?

A: Although employers generally cannot justify sex-based employment decisions based on a customer preference for a particular gender, courts have determined that an extremely narrow exception exists where the employer discriminates on the basis of sex to protect the legitimate privacy interests of the customers. An employer asserting a privacy based justification for a sex-based employment decision must establish that: (1) there is a factual basis for believing that employing any member of one sex would undermine the essence of the business; (2) the asserted privacy interest is entitled to protection under the law; and (3) no reasonable alternatives exist to protect the privacy interests other than the sex-based employment policy.

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Q: Can an employer make women wear sexually suggestive attire as a condition of employment?

A: Courts have consistently ruled that requiring female employees to wear sexually suggestive attire as a condition of employment violates Title VII of the Civil Rights Act of 1964 (Title VII). For example, the U.S. District Court for the Northern District of California ruled in Priest v. Rotary, 634 F.Supp. 571 (N.D. Cal. 1986) that an employer violated Title VII by removing a female employee from “her initial position as a cocktail waitress because of her refusal to wear sexually suggestive attire.”

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Q: Can an employer discriminate against women for not wearing makeup?

A: In Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), the U.S. Sixth Circuit Court of Appeals determined that requiring women to wear makeup constitutes improper gender or sex-based stereotyping in violation of Title VII of the Civil Rights Act of 1964. The Smith court explained that “an employer who discriminates against women because . . . they do not wear dresses or makeup is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.

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Q: Do the laws against sex discrimination protect me from sexual harassment at work?

A: Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act. Employees are protected from sexual harassment which is sufficiently severe or pervasive to alter the victim’s conditions of employment and create a hostile or abusive work environment. Employees are protected from sexual harassment by co-employees, supervisors, managers, consultants, and customers.

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Q: Am I protected from retaliation for complaining about sex discrimination?

A: Under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act, employees are protected from retaliation when they complain about sex discrimination, whether against themselves or other employees, in the workplace. Employees are also protected against retaliation when they file a charge of discrimination alleging sex discrimination with the U.S. Equal Employment Opportunity Commission.

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Q: Do You Have More Questions Or Believe You Have A Case?

A: If you have more questions or believe that you have an sex discrimination case, please contact our office to speak with an employment law lawyer. You will never have to pay to speak with an employment law attorney here. We can help you take action to protect and vindicate your employee rights. We take gender discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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