Gender Discrimination in the Workplace
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Gender, or sex, is one of the classes protected by both federal and state anti-discrimination laws. There are also specific protections under the law against sexual harassment, which is a form of gender discrimination, and unequal pay for comparable work.
Gender Discrimination DefinedGender discrimination in employment is the unfavorable treatment of someone based on their gender. This could arise in the context of decisions to hire, promote, discipline or terminate an employee.
Discrimination can occur through disparate treatment- identifiable ways in which women are treated differently from men. For example, a decision to terminate a female and replace her with a less qualified male could be discrimination, depending on the reasons for the decisions. Learn more here about proving discrimination in this workplace. Discrimination can also occur through policies or practices which disproportionately impact one gender, even though they are gender- blind on their face. This is called "disparate impact." Physical requirements, if the job can be performed without meeting them, can be an example of this. This latter form is something many women see and experience in the workplace, but can be difficult to prove. |
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Recognizing Gender Discrimination
Gender discrimination, unlike some other forms of discrimination, is rarely based on a general animosity toward women. In fact, women can be either the victims and the perpetrators of gender discrimination.
Instead, where there is a decision that is motivated by discrimination, it is usually based on a stereotype or assumption about women in particular role or circumstance that is inaccurate or discriminatory. For example, a company may successfully employ many women, but treat women in leadership differently from men in leadership. If women are not promoted, or disciplined or terminated once in leadership, for being too "aggressive" or "outspoken, while men in those positions are seen as "assertive" and "forthcoming," there may be discriminatory assumptions and stereotypes in play that could support a discrimination claim.
Instead, where there is a decision that is motivated by discrimination, it is usually based on a stereotype or assumption about women in particular role or circumstance that is inaccurate or discriminatory. For example, a company may successfully employ many women, but treat women in leadership differently from men in leadership. If women are not promoted, or disciplined or terminated once in leadership, for being too "aggressive" or "outspoken, while men in those positions are seen as "assertive" and "forthcoming," there may be discriminatory assumptions and stereotypes in play that could support a discrimination claim.
Unequal Pay
Paying men and women differently for comparable work is a form of gender discrimination. it is also explicitly forbidden by federal and state equal pay acts.
The Massachusetts Equal Pay Act has some broader protections than the federal Equal Pay Act. For example, the state statute references "comparable" not "equal" work, giving some additional flexibility to argue that there is an unlawful pay discrepancy even if the jobs are not 100% identical. Equal or comparable work generally involves jobs that require equal skill, effort, and responsibility and are performed under similar working conditions. You can learn more here about the Equal Pay Laws.
The Massachusetts Equal Pay Act has some broader protections than the federal Equal Pay Act. For example, the state statute references "comparable" not "equal" work, giving some additional flexibility to argue that there is an unlawful pay discrepancy even if the jobs are not 100% identical. Equal or comparable work generally involves jobs that require equal skill, effort, and responsibility and are performed under similar working conditions. You can learn more here about the Equal Pay Laws.
Gender Discrimination and Parenthood
There are some protections for parents that are gender neutral, such as Massachusetts Paid Family Leve, which allows both mothers and fathers to take protected leave after the birth or adoption of a child.
There are also specific protections relating to pregnancy. Both state and federal law prohibit discrimination based on pregnancy. Massachusetts law further requires employers to make reasonable accommodations for pregnant or lactating women, including breaks to pump breastmilk after a baby is born, or adjusting the physical requirements of the job during pregnancy.
There are also specific protections relating to pregnancy. Both state and federal law prohibit discrimination based on pregnancy. Massachusetts law further requires employers to make reasonable accommodations for pregnant or lactating women, including breaks to pump breastmilk after a baby is born, or adjusting the physical requirements of the job during pregnancy.
Sexual Harassment
Sexual harassment is specifically prohibited by statute in Massachusetts, and it is also considered a form of sex discrimination under both federal and state law. It is important to know that not all harassment or hostility is legally actionable- if you are experiencing a "hostile work environment" due to general workplace bullying, that is not targeted toward you based on your sex, that may not be unlawful.
Actionable sexual harassment has two major types: "quid pro quo" harassment, in which someone is making unwelcome advances and conditioning your job or other benefits on your agreement (or retaliating against you if you rebuff the advances), or "hostile work environment," where comments or behaviors based on sex are pervasive and ongoing. Learn more about sexual harassment here.
Actionable sexual harassment has two major types: "quid pro quo" harassment, in which someone is making unwelcome advances and conditioning your job or other benefits on your agreement (or retaliating against you if you rebuff the advances), or "hostile work environment," where comments or behaviors based on sex are pervasive and ongoing. Learn more about sexual harassment here.
Discrimination Based on Sexual Orientation or Gender Identity
In Massachusetts, both sexual orientation and gender identify are separate protected classes under the anti-discrimination laws. Under federal law, they are not protected by statute, but courts have held that discrimination on either of these bases falls under the umbrella of sex or gender discrimination.
Sexual orientation or gender identity discrimination can be motivated either by actual animosity toward LGBT+ individuals, or, like gender discrimination, by the application of stereotypes and assumptions about people in this community. Unlike traditional gender discrimination or race discrimination, an employee's sexual orientation or gender identity may not be obvious to the employer at the time of hire. If you have noticed different treatment from your employer after you disclose your orientation or identity to a co-worker or manager, you should speak with an employment attorney to get some insight as to whether there is any actionable discrimination taking place and what your options are for addressing it.
Sexual orientation or gender identity discrimination can be motivated either by actual animosity toward LGBT+ individuals, or, like gender discrimination, by the application of stereotypes and assumptions about people in this community. Unlike traditional gender discrimination or race discrimination, an employee's sexual orientation or gender identity may not be obvious to the employer at the time of hire. If you have noticed different treatment from your employer after you disclose your orientation or identity to a co-worker or manager, you should speak with an employment attorney to get some insight as to whether there is any actionable discrimination taking place and what your options are for addressing it.
Time Limits for Discrimination Claims
In most situations, the statute of limitations for discrimination lawsuits is 300 days, or approximately 10 months. You may see articles on the internet that say the deadline is 180 days or six months. This is true under federal law but in Massachusetts you have some additional time even for federal claims.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court then.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court then.
How We Can Help
We can help you navigate these issues and get clarity on your rights and obligations in the face of an actual or imminent employment termination or other instances of discrimination. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
