SEX DISCRIMINATION IN THE SAN FRANCISCO AREA
You Need to Know Your Rights.
Are you being discriminated against by your employer in San Francisco or the San Francisco Bay Area?
It is not necessarily harassment if a supervisor or employer is being tough on you in an effort to follow through and get the job done. Harassment is conduct that is not necessary for the performance of a supervisory job, but is instead outside the scope of necessary job duties.
SEXUAL HARASSMENT IS TECHNICALLY DIFFERENT THAN SEX DISCRIMINATION OR GENDER DISCRIMINATION
Examples of Sexual Harassment:
According to the California Code of Regulations, harassment includes:
(1) Verbal Harassment;
(2) Physical Harassment;
(3) Visual Forms of Harassment (posters, cartoons, drawings, etc.); and
(4) Sexual favors.
The two main categories of sexual harassment are “quid pro quo” harassment and “hostile work environment” harassment. Sexual harassment can include non-sexual behavior, such as male supervisors yelling in the workplace at female employees in a more forceful or frequent manner than at male employees.
To help give you a better idea of what constitutes sexual harassment, the following is a factual checklist to guide you at a glance. However, every case is unique and should be analyzed based on its own set of facts and surrounding circumstances.
• If a supervisor has asked an employee for a sexual favor in exchange for a job benefit, an employee almost certainly have a case for quid pro quo sexual harassment.
• If a supervisor has threatened to harm an employee’s job security or conditions if an employee do not perform a sexual favor for him or her, an employee almost certainly have a case for quid pro quo sexual harassment.
• If a supervisor yells at women in the office more forcefully and more often than he or she yells at men, an employee might have a case for hostile work environment sexual harassment.
• If an employee is being severely or pervasively harassed at work in California because of his or her sexual orientation, or because of his or her perceived sexual orientation, an employee most likely has a case for hostile work environment sexual harassment.
• If an employee suffers an adverse employment action, such as being demoted or terminated from his or her job, because he or she filed a complaint for sexual harassment, or because he or she helped a coworker file a sexual harassment complaint, he or she most likely has a case for unlawful retaliation.
• If an employee is exposed to severe or pervasive sexually graphic language, gestures, or images at work, and the reasonable person in the employee’s position would find such conduct to be hostile or abusive, then an employee might have a case for hostile work environment sexual harassment, but it will depend on all the surrounding circumstances.
What is Gender or Sex Discrimination?
Gender or sex discrimination occurs when an employer discriminates in hiring or in treatment of employees based on their sex, or in California under FEHA based on their sexual orientation. Under FEHA, at Government Code Section 12926(p), “Sex” includes, but is not limited to, pregnancy, childbirth, medical conditions related to pregnancy or childbirth” and gender. “Gender” encompasses a person’s gender identity and gender-related appearance and behavior.
The following Cases In Point give factual examples of where gender-based stereotypes were used to make employment decisions, resulting in successful discrimination lawsuits on the part of the plaintiffs.
CASE IN POINT: Acting “Like a Lady”
In the 1989 United States Supreme Court case of Price Waterhouse v. Hopkins, an employer was found to have violated Title VII when it delayed a female employee's promotion based in part on comments by supervisors that she was “macho,” that she should “dress more femininely, wear make-up, have her hair styled, and wear jewelry,” and that she should “take a course in charm school.” The court found that the plaintiff’s sex was a motivating role in an employment decision, and therefore, her employer was found liable.
CASE IN POINT: Women with Children
Employers sometimes expect women to have certain responsibilities, such as caring for children. In Phillips v. Marietta Corp., an employer did not hire women with preschool-age children, but did hire men with preschool-age children. Even though the majority of the employees were women, there was still discrimination. While the employer was entitled to his opinion that women with young children should not be working, it was unlawful for him to let this opinion affect his employment decisions. As soon as his beliefs affected his hiring decisions, he violated laws against sex discrimination.
Gender Stereotypes: Disparate Treatment
The California FEHA and the United States Title VII prohibit discrimination based on the sex of an employee. While employers are allowed to hold their own views and beliefs on gender and society, it is illegal to make employment decisions based on stereotypes regarding the employee’s sex. Discriminating against an employee and treating that employee differently because of their sex or gender is also referred to as disparate treatment. Unlike claims for sexual harassment, where only one employee is required for suit against the employer, under FEHA, an employer can only be sued for discrimination if the employer regularly employs at least five people. For violations under Title VII, 15 employees are required for a lawsuit against the employer.
Discrimination Based on Sexual Orientation
Under FEHA, at Government Code, Section 12940 (a), discrimination on the basis of sexual orientation is prohibited in California. This means that it is unlawful for you to be harassed because of your homosexuality, heterosexuality, or bisexuality. It is also unlawful for you to be harassed at work because of your perceived sexual orientation or because of the sexual orientation of the people you affiliate with.
Conversely, under Title VII and the EEOC, discrimination on the basis of sexual orientation is not prohibited, as sexual orientation has not been added to the federal list of suspect classes.
Under the California law, the Supreme Court of California has confirmed that employers may not discriminate against employees based on sexual orientation.
Discrimination Based on Potential for Future Pregnancy is Unlawful
It is unlawful to discriminate based on the potential for a woman to become pregnant. In Auto Workers v. Johnson Controls, a manufacturing company would not allow women to work certain jobs based on a “fetal protection policy” because if they became pregnant there could be harm to their fetus. The Supreme Court of the United States ruled that such a policy was illegal discrimination.
Please do not hesitate to give us a call at 650-857-1600 or email us at brodericklaw@brodericklaw.com for a free consultation on how best to approach your sex discrimination problems with employers. At the Broderick Law Firm we are here to help you stop wrongful sexual harassment in the workplace.
The Broderick Law Firm handles matters within the jurisdiction of the Federal and State Courts of California only. Broderick Law Firm is located in Palo Alto and represents clients throughout the Bay Area. We serve Santa Clara County, Alameda County, Contra Costa County, Marin County, Merced County, Monterey County, Napa County, Sacramento County, San Benito County, San Francisco County, San Joaquin County, San Mateo County, Santa Cruz County, Solano County, Sonoma County, and Stanislaus County, including the cities of Alameda, Albany, Berkeley, Dublin, Emeryville, Fremont, Hayward, Livermore, Newark, Oakland, Piedmont, Pleasanton, San Leandro, Union City, Antioch, Brentwood, Clayton, Concord, Danville, El Cerrito, Hercules, Lafayette, Martinez, Moraga, Oakley, Orinda, Pinole, Pittsburg, Pleasant Hill, Richmond, San Pablo, San Ramon, Walnut Creek, Belvedere, Bolinas, Corte Madera, Dillon Beach, Dogtown, Fairfax, Inverness, Inverness Park, Kentfield, Lagunitas-Forest Knolls, Larkspur, Marshall, Mill Valley, Muir Beach, Nicasio, Novato, Olema, Point Reyes Station, Ross, San Anselmo, San Geronimo, San Rafael, Sausalito, Stinson Beach, Tiburon, Tomales, Woodacre, Atwater, Dos Palos, Gustine, Livingston, Los Banos, Merced, Carmel-by-the-Sea, Del Rey Oaks, Gonzales, King City, Marina, Monterey, Pacific Grove, Salinas, Sand City, Seaside, Soledad, American Canyon,Calistoga, Napa, St. Helena, Yountville, Citrus Heights, Elk Grove, Folsom, Galt, Isleton, Rancho Cordova, Sacramento, Aromas, Hollister, Paicines, Ridgemark, San Juan Bautista, Tres Pinos, San Francisco, Stockton, Escalon, Lathrop, Lodi, Manteca, Ripon, Tracy, Atherton, Belmont, Brisbane, Burlingame, Colma, Daly City, East Palo Alto, Foster City, Half Moon Bay, Hillsborough, Menlo Park, Millbrae, Pacifica, Portola Valley, Redwood City, San Bruno, San Carlos, San Mateo, South San Francisco, Woodside, Campbell, Cupertino, Gilroy, Los Altos, Los Altos Hills, Los Gatos, Milpitas, Monte Sereno, Morgan Hill, Mountain View, Palo Alto, San Jose, Santa Clara, Saratoga, Sunnyvale, Santa Cruz County, Capitola, Santa Cruz, Scotts Valley, Watsonville, Benicia, Dixon, Fairfield, Rio Vista, Suisun City, Vacaville, Vallejo, Sonoma County, Cloverdale, Cotati, Healdsburg, Petaluma, Rohnert Park, Santa Rosa, Sebastopol, Sonoma, Windsor, Ceres, Crows Landing, Del Rio, Denair, Diablo Grande, Empire, Grayson, Hickman, Hughson, Keyes, Knights Ferry, LaGrange, Modesto, Newman, Oakdale, Patterson, Riverbank, Salida, Turlock, Valley Home, Waterford, and Westley.
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