Gender Discrimination

Wigdor LLP’s lawyers have handled cases involving retaliatory action taken by an employer as a result of “protected activities,” and we have been at the forefront in using the law to expand the scope and definition of retaliation and how it can be proven. We have successfully handled cases against virtually every large Wall Street firm in matters ranging from pay/bonus disparities, unlawful termination and failure to promote or “steering” (sometimes referred to as “mommy tracking”). Our cases are certainly not limited to Wall Street however. We have successfully litigated and settled gender discrimination cases in all types of workplace settings— Recent clients have worked in a wide range of industries, including advertising, law, accounting, sports and entertainment, hospitality and lodging, sales, health care and medicine. Despite the common misconception that women are generally the only ones who are victims of gender discrimination in the workplace, gender discrimination lawsuits may be filed by men and women alike. LGBT employees are also protected from discrimination based on sexual orientation under many laws prohibiting discrimination based on sex or gender.

Discrimination based on gender can take many different forms. As a general matter, however, it is unlawful for an employer to treat an employee differently because of his or her gender or because he or she associates with a group or organization that identifies with or is linked to a certain gender. Common claims based upon the disparate treatment of an employee or job applicant as compared to colleagues of a different gender include being paid a lower salary or bonus, not being promoted despite the elevation of less-qualified colleagues, receiving fewer sales leads or less desirable assignments, being laid off or fired, not being hired for a potential position, or being subjected to sexual harassment. All of these claims require that you prove, by a preponderance of the evidence (meaning that it is more likely than not) that because of your gender you were treated unlawfully. Statistics, gender-based comments, and work performance are the most frequently used forms of evidence in gender discrimination cases.

Discrimination based on gender is unlawful under federal (Title VII), state and local (e.g., New York State and City) laws. Title VII is a part of the Civil Rights Act of 1964, the landmark federal civil law. To bring a claim for gender discrimination under Title VII, an employee must show that: (1) he or she is a member of a protected class (in this case gender); (2) he or she was qualified for the position he or she held; (3) he or she suffered an adverse employment action (e.g, being fired or demoted, a decrease in pay, not being promoted, being given lesser assignments than before, etc.); and (4) the adverse action took place under circumstances giving rise to an inference of discrimination (e.g. demoted after an employer told her that she was unable to perform her job while pregnant, fired for missing work while giving birth, etc.).  A gender discrimination claim under the New York State or City Human Rights Law requires the same general showing.

Discriminating against women based on their pregnancy also is prohibited under federal law. The Pregnancy Discrimination Act was added as an amendment to Title VII in 1978, extending the prohibition of discrimination based on gender to include discrimination in the workplace based on pregnancy, childbirth, and other related conditions. If a woman suffers an adverse employment action under circumstances indicating it was because she was pregnant (e.g., demoted after an employer told her that she was unable to perform her job while pregnant, fired for missing work while giving birth, etc.), she may have a claim for gender discrimination under Title VII and other laws.

Whether or not your employer is covered by various laws will depend on the size of its workforce, which sometimes may include independent contractors or even interns. Title VII applies to employers who have 15 or more employees for each working day in 20 or more weeks in the current or previous calendar year, whereas the New York State Human Rights Law (NYSHRL) has a less stringent definition of employer, generally requiring at least 4 employees. Claims regarding different varieties of discrimination also may be pursued more effectively under some laws than others. For instance, independent contractors are rarely paid overtime when they work in excess of 40 hours per week and there are often significant reductions in their pay that would be unlawful for employees. The Firm’s attorneys will discuss with you which claims and laws may or may not apply to your situation during the intake process, as well as in the anticipated course of any representation we may enter into with you.

Important to a gender discrimination claim under federal law is the role of the Equal Employment Opportunity Commission (EEOC). In order to file a lawsuit under Title VII, an employee must first file an administrative charge with the EEOC within 180 or 300 days (depending on the state in which the employer is located) of the discriminatory act. This civil rights enforcement agency will then investigate the discrimination charges against the employer in order to assess the validity of the employee’s allegations and determine whether or not there is support for a discrimination call or finding. Once the EEOC has had time to investigate, it also may give the employee a “right to sue” letter giving the employee the right to pursue his/her legal claim, independent of the EEOC. In addition, the EEOC may try to help settle the dispute between the employee and his or her employer. If the EEOC is unable to settle the dispute, the agency also has the authority to file a lawsuit on behalf of the alleged victim (and similarly situated individuals) in order to protect the rights of the individuals and the interests of the public. The EEOC also enforces the Equal Pay Act of 1963 (EPA), a law that prohibits paying men and women differently who work in the same establishment and whose jobs require essentially the same skill, effort and responsibility under comparable working conditions. Individuals who have been paid less than coworkers of the opposite gender for working the same or analogous job can file a lawsuit under the EPA for lost compensation and an additional, equal amount of liquidated damages.

Different gender discrimination statutes provide for the recovery of different types and amounts of damages. For example, Title VII puts a cap on total punitive damages depending on how many workers are in the defendant employer’s workforce. In contrast, the New York State Human Rights Law (NYSHRL) has no limit on the amount of compensatory damages that may be awarded to a plaintiff, but does not allow for punitive damages. The New York City Human Rights Law (NYCHRL) provides for punitive damages and does not have a limit as to how much can be awarded.

Employees should not have to suffer from harassment in the workplace, and it is unlawful to harass an employee not only based upon gender or in a sexual manner, but also based upon pregnancy, childbirth or a related medical condition. Harassers may be the victim’s boss or colleague, but also could be someone who is not an employee of the employer, such as a client or customer. Under federal law, harassment generally reaches the threshold of being illegal when it is so frequent or severe that it creates a hostile or offensive work environment (although some state and local laws have different standards). Harassment also is unlawful when it results in an adverse employment decision, such as termination or demotion.