Sex and Gender Discrimination

Employment Law

Sex and Gender Discrimination Under California and Federal Law

Despite decades of progress, sex and gender discrimination remains deeply embedded in workplaces across California. From unequal pay and glass ceilings to gender stereotyping and discrimination against transgender employees, these violations affect workers in every industry and at every level. At The Law Offices of Farris Ain, we represent employees who have been treated differently because of their sex, gender, gender identity, or gender expression—and we pursue every legal remedy available to make them whole.

California FEHA Protections

The Fair Employment and Housing Act (FEHA), Government Code section 12940, provides comprehensive protections against employment discrimination based on:

• Sex (including pregnancy, childbirth, breastfeeding, and related medical conditions)
• Gender
• Gender identity
• Gender expression
• Sexual orientation

FEHA applies to employers with five or more employees and covers all terms and conditions of employment, including hiring, firing, promotions, compensation, benefits, training, and working conditions. California’s protections are among the most expansive in the nation, explicitly covering gender identity and expression—categories that many other states do not protect.

Federal Protections Under Title VII

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex by employers with 15 or more employees. In the landmark 2020 decision Bostock v. Clayton County, the United States Supreme Court held that Title VII’s prohibition on sex discrimination also encompasses discrimination based on sexual orientation and transgender status. This ruling significantly expanded federal protections, aligning them more closely with California’s existing FEHA framework.

California Equal Pay Act

Labor Code section 1197.5, California’s Equal Pay Act, requires employers to pay employees of different sexes, races, or ethnicities equal wages for substantially similar work. The law focuses on the similarity of work performed, not identical job titles. Key provisions include:

• Substantially similar work: The comparison is based on skill, effort, responsibility, and working conditions—not job titles
• Limited employer defenses: Pay disparities are permitted only when based on seniority, merit, a system measuring production, or a bona fide factor other than sex (such as education, training, or experience)—and even then, the employer must show the factor is job-related, consistent with business necessity, and accounts for the entire differential
• Anti-retaliation protections: Employers cannot prohibit employees from discussing or inquiring about wages, and cannot retaliate against employees who invoke their rights under the Equal Pay Act

Prohibition on Salary History Inquiries

Under Labor Code section 432.3, California employers are prohibited from:

• Asking job applicants about their salary history, including compensation and benefits
• Relying on an applicant’s salary history as a factor in determining whether to offer employment or what salary to offer
• Seeking salary history from a current or former employer (an applicant may voluntarily disclose the information without prompting)

Employers must also provide the pay scale for a position to any applicant who requests it after an initial interview. This law was enacted to break the cycle of pay inequity that perpetuates when historical pay gaps follow employees from job to job.

Types of Sex and Gender Discrimination

Sex and gender discrimination in the workplace takes many forms. We have represented clients facing:

• Unequal pay: Being paid less than colleagues of a different sex or gender for substantially similar work, despite having equal or greater qualifications and experience
• Glass ceiling: Systematic exclusion from leadership roles, executive positions, or high-profile assignments based on sex or gender
• Gender stereotyping: Being penalized for not conforming to traditional expectations of how a man or woman should look, behave, or present themselves in the workplace
• Discrimination against transgender employees: Denial of employment, termination, refusal to use correct pronouns or name, exclusion from restroom access consistent with gender identity, or hostile treatment related to gender transition
• Discrimination based on gender expression: Adverse treatment because of how an employee presents their gender through clothing, hairstyle, mannerisms, or other aspects of appearance and behavior
• Mommy track/caregiver discrimination: Assuming that mothers or women of childbearing age are less committed, less reliable, or less deserving of advancement
• Sexual orientation discrimination: Adverse employment actions based on an employee’s actual or perceived sexual orientation

Dress Codes and Grooming Standards

While employers may maintain reasonable dress codes and grooming standards, those standards cannot impose an unequal burden on employees based on sex or gender. A dress code that requires women to wear makeup or skirts while imposing no comparable requirements on men, for example, may violate FEHA. Similarly, grooming standards that discriminate against employees whose gender expression does not conform to traditional norms may give rise to a claim.

Intersection with Sexual Harassment and Pregnancy Discrimination

Sex and gender discrimination claims frequently overlap with sexual harassment and pregnancy discrimination. Sexual harassment is itself a form of sex discrimination under both FEHA and Title VII. Similarly, discrimination based on pregnancy, childbirth, or related medical conditions is a specific subset of sex discrimination. When these claims overlap, pursuing them together often strengthens the overall case and can lead to more comprehensive remedies.

Damages and Remedies

Employees who prevail in sex and gender discrimination claims may be entitled to:

• Back pay: Lost wages and benefits from the date of discrimination
• Front pay: Future lost earnings when reinstatement is not practical
• Compensatory damages: Compensation for emotional distress, humiliation, and mental anguish
• Punitive damages: Additional damages to punish the employer for egregious or malicious conduct (available under FEHA with no statutory cap)
• Pay equity adjustments: Recovery of the difference in wages owed under the Equal Pay Act, plus an equal amount as liquidated damages
• Attorney’s fees and costs: Reimbursement of legal expenses
• Injunctive relief: Court orders requiring the employer to change discriminatory policies or pay practices
• Reinstatement: Return to your former position, where appropriate

“Your gender should determine nothing about your career. If an employer treated you differently because of who you are, California law provides powerful remedies.”