Know Your Rights: Sex Discrimination

Examples of workplace sex discrimination

• You are fired, denied a job or promotion, or subjected to less favorable terms, conditions, or privileges of employment than your colleagues because of your sex.
• You are experiencing harassment. This includes when your boss, coworkers, or third parties like customers direct derogatory comments, jokes, or gestures at you that are related to your sex or your status as a recently pregnant or nursing person. 
• Your job application is reviewed by an automated tool that rejects or downgrades your application because your resume indicates that you have experiences or qualities that are typically associated with your sex, for example, participation on a women’s sports team in college.   

Your rights

• Under Title VII of the Civil Rights Act of 1964, employees, job applicants, and union members are protected from sex discrimination at the workplace and at the union hall. You have these rights whether you apply for and interview for a job in person or online, and whether the employer is using traditional or automated systems for hiring or in the workplace.
• Title VII applies to employers with 15 or more employees. Some state and local laws provide such  protections to workers at companies with fewer employees.
• Federal courts and agencies have recognized that existing sex discrimination bans also prohibit discrimination based on sexual orientation and gender identity.
• What to do if you believe that your workplace rights have been violated
• Check any policies your employer has in place applying to discrimination and harassment, including complaint protections, and follow them.
• If your employer does not have an established complaint procedure, you should report the unwelcome behavior to your human resources department.
• Contact the U.S. Equal Employment Opportunity Commission, the federal agency in charge of investigating violations of Title VII, or the state or local agency with similar authority.

Sexual harassment is a form of sex discrimination. There are many kinds of conduct that may be defined as sexual harassment.  These include unwelcome sexual advances or requests for sexual favors, or other unwanted conduct of a sexual nature. Such conduct may be physical, ranging from massages or hugs to sexual assault and rape.  It can consist of verbal conduct, like vulgar jokes or discussions about sex. It can be visual, such as pornography, graffiti, or sexual gestures. Unwanted communication, like emails or text messages, or conduct directed at you on social media, also may be considered harassment.

Be aware that harassment need not target you specifically to be unlawful.  And the harasser’s intention – such as to be humorous or to pay a compliment – also does not affect whether the conduct is illegal.

Sexual harassment can be perpetrated by co-workers, subordinates, and supervisors who don’t have direct authority over you.  Harassers also may be third parties, like a customer, vendor, or independent contractor like a consultant.

Is sexual harassment necessarily “sexual” in nature?

Harassment does not have to be motivated by sexual desire or be sexual in nature to be unlawful. Sexual harassment can include statements that belittle someone based on their sex, a policy that disadvantages a group based on sex (regardless of intent), or an environment that is hostile toward members of the disadvantaged sex. This includes hostility directed at you because of your sexual orientation, your gender identity, or because you do not conform to stereotypes about how someone of your sex should look or act. Harassment based on other sex-based traits, like pregnancy or breastfeeding, also is unlawful. It can be illegal regardless of whether the perpetrator and victim are of the same sex or different sexes.

What separates conduct that is merely obnoxious from conduct that is illegal harassment?

Simple teasing, offhand comments, or isolated incidents that are not very serious and do not reoccur usually will not be considered unlawful. Harassment is illegal when it is so frequent, widespread, or severe that it affects your job, unreasonably interferes with your work performance, or creates a work environment that is intimidating, hostile, or objectively offensive.  

Harassment also is illegal where your submission to it – or your rejection of it – is made a condition of your employment or advancement; for instance, if your supervisor promises you a promotion if you sleep with him, or threatens to fire you if you do not. If you are fired or face other negative action because you oppose the harassment, such action also likely violates the law.

What should I do if I think I am being sexually harassed?

• If you feel safe doing so, tell the harasser that the conduct is unwelcome and ask that it stop. If you do not feel comfortable confronting the harasser, or if the harassment continues despite your requests, check your employer’s policies regarding harassment, and follow its instructions for filing a complaint.
• If your employer does not have formal policies against harassment, inform your employer’s human resources department or a supervisor. If you are a member of a union, tell your union representative.
• Keep a record of the harassment and other negative treatment. As soon as possible, write down what happened – what was said or done, who was present, where you were, and when it occurred.  It is helpful to do so in a text message to yourself or other method that will date and time-stamp your notes. Do not use your employer’s computer or your company email to make these records.
• It is natural to be reluctant to talk about harassment, due to embarrassment or for other reasons, like fear that you might be punished.  But if you do not tell your employer about the harassment, it may harm your ability to later bring a legal claim. Also, it is illegal for an employer to retaliate against you.  One way to feel safer is to come forward with a group. A harasser often does not limit his/her behavior to just one person; talk to your co-workers and see if they are facing the same behavior.

What if I complain and nothing changes?

Unfortunately, taking legal action might be your only option.  It is important to talk to an attorney who specializes in employment law. You may submit a request for assistance to the ACLU by filling out the sex discrimination legal intake form.

• The National Employment Lawyers Association (NELA) is a group of attorneys who regularly represent employees (not employers), and has an attorney locator on its website, www.nela.org. Your state or local bar association also can provide referrals.
• The Time’s Up Legal Defense Fund can defray the cost of legal assistance and maintains a network of attorneys willing to represent harassment survivors.  
• Low- and no-cost legal assistance may be available through state or local legal aid or legal services organizations. Local law schools may run “clinics,” which are free services provided by law students supervised by an attorney-professor.
• You also may file a complaint with the EEOC, at www.eeoc.gov, or your local human rights agency. Note that you must file your charge as early as 180 days after the last act of harassment against you, so do not delay. You do not need an attorney to file a charge.

Examples of pregnancy-related workplace discrimination

• An employer refuses to hire you because of your pregnancy.
• Your employer fires you or takes other negative action when you disclose your pregnancy.
• Your employer refuses to make adjustments that you need for a healthy pregnancy, like letting you take more breaks, temporarily reassigning you to less strenuous job duties, or changing your schedule so that you can attend prenatal appointments.
• Your employer refuses to give you time off for pregnancy-related healthcare, such as IVF, abortion, or recovery from childbirth.
• Your supervisor forces you to go on leave when you disclose your pregnancy because they believe you cannot safely continue to work.
• Your boss, coworkers, or third parties (clients, customers, etc.) make derogatory comments or jokes that are related to your being pregnant or lactating.

What laws may apply to pregnant workers

• Under Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act (PDA), discrimination based on “pregnancy, childbirth, or related medical conditions” is a form of unlawful sex discrimination. “Related medical conditions” include pre- and post-partum conditions like lactation, infertility, and abortion. The PDA applies to employers with 15 or more employees. Harassment based on your being pregnant, needing to pump at work, or receiving infertility or abortion care, also qualifies as sex discrimination.
• Under the Pregnant Workers Fairness Act (PWFA) of 2022, your employer must provide you with the reasonable accommodations you need to keep doing your job while pregnant, or pre- or post-partum, unless doing so would impose an “undue hardship” on the business. Examples of reasonable accommodations include allowing you to take more breaks, sit while working, change your schedule to account for “morning sickness,” be excused from risky job duties, and take time off to attend doctor’s appointments or recover from childbirth. PWFA applies to employers with 15 or more employees. More information is available here.
• Under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) of 2022, your employer must provide you with reasonable break time to pump. It also must provide you a place to pump that is shielded from view and free from intrusion. Under the law, a bathroom is not an acceptable place for your employer to designate for you to pump. PUMP applies to all employers, with a limited exception for air carriers and delayed application for rail and motorcoach operators. Employers with fewer than 50 employees also may be exempt if compliance would pose an undue hardship. More information is available here.
• The Family Medical Leave Act (FMLA) requires employers to grant up to 12 weeks of unpaid, job-protected leave annually, for an employee’s own serious health condition, including pregnancy and recovery from pregnancy, or the serious health condition of a close family member, as well as care for a newborn or adopted child. FMLA leave may be taken intermittently, in small increments, to cover periodic absences such as doctor’s appointments. The FMLA applies to employers with 50 or more employees. To be eligible for FMLA leave, you must have worked for your employer for at least one year and for at least 1,250 hours over the prior year.
• Many state and local laws provide additional – and more generous – protections related to discrimination, accommodation of pregnancy and lactation, and pregnancy-related leave.

Examples of unlawful employer conduct

• Your employer can’t fire you because you are pregnant or need to pump, nurse, or express milk, and can’t make your job so miserable that quitting is the only option.
• If you are looking for work, a potential employer cannot refuse to hire you because you are pregnant or need to pump
• The PDA requires covered employers to treat pregnant workers the same way they treat others who are “similar in their ability or inability to work” when it comes to job benefits like health coverage or disability benefits.
• You are legally entitled to work as long as you are willing and physically able to do so safely. Your boss cannot require or pressure you to take time off just because you are pregnant. Nor can they force you to take leave because they refuse to discuss potential accommodations that could enable you to keep working.
• You are entitled use your accrued vacation or sick days for pregnancy- and childbirth-related reasons.

What to do if you think your rights have been violated

• If you believe you have experienced pregnancy discrimination, you may file a “charge of discrimination” with the U.S. Equal Employment Opportunity Commission, or EEOC (https://www.eeoc.gov/) and with your state and local civil rights agencies. (A complete list can be found at https://www.usccr.gov/files/pubs/crd/stateloc/all.htm.) You do not need an attorney to file a charge of discrimination. In some cases, the EEOC or state/local agency may be able to help resolve your complaint without your having to file a lawsuit.
• If you wish to file a lawsuit under federal law (PDA, PWFA), you are required to first file a charge of discrimination with the EEOC. State laws vary as to whether you must first file a charge of discrimination with your state’s civil rights agency before filing a lawsuit in court.
• If you believe you have experienced a violation of your rights under the FMLA or PUMP Act, you may file a complaint with the U.S. Department of Labor’s Wage and Hour Division. (https://www.dol.gov/) You do not need to file a complaint with DOL before filing a lawsuit.
• If you feel harassed, you should report the behavior to your human resources (HR) department. If your employer does not have an HR department, report it to a supervisor. Your failure to report the harassment could be held against you if you later decide to pursue a legal claim.
• If your employer punishes you for filing a complaint, such as by unfairly disciplining you, demoting you, or firing you, that retaliation also is unlawful, and you may file a complaint with the EEOC and your state and local civil rights agencies.

All of the laws discussed here have strict time limitations for filing a complaint, so do not delay in filing a complaint. To find out what time limitations apply to you, consult an attorney or consult the government agency websites. For a comprehensive list of federal and state limitations periods, see https://www.workplacefairness.org/.

Examples of workplace discrimination after childbirth

• Upon returning to work, your employer assigns you to a lesser role, or refuses to reinstate your position.
• Your boss denies you a promotion because of your caregiving responsibilities.
• Your employer doesn’t allow breaks from work or a private location for pumping breast milk.
• Your boss, coworkers, or customers direct derogatory comments, jokes, gestures, or pictures at you that are related to your status as recently pregnant or nursing.
• Your employer fails to investigate and take action after you notify them that you are being harassed.
• Your boss or company policy does not permit you to take (or discourages you from taking) parental leave because you are a father.

Your rights

• Workers covered under the Family Medical Leave Act (FMLA) are entitled to 12 weeks of unpaid leave for pregnancy-related reasons, including for prenatal visits, recovery from childbirth, or to care for your spouse or a new child. Other state laws may offer greater protections.
• Under FMLA, you can use your accrued vacation or sick days for pregnancy- and childbirth-related reasons.
• Once you return to work, if you are covered under FMLA your employer must reinstate you to the same position you held prior to your pregnancy (or one of similar pay and level).
• If you require absences for follow-ups with your doctor or to deal with childbirth-related medical issues, your employer should treat these absences the same as those of other temporarily-disabled employees.
• Employers can offer a period of paid disability leave to employees who have given birth to recover from childbirth. But if your employer offers paid (or unpaid) parental leave for childcare purposes, the same amount of leave must be available for mothers and fathers.
• Hourly workers covered by the Fair Labor Standards Act have the right to pump on the job. Under the Affordable Care Act, nursing women are entitled to:
  • Reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth; and
  • A place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
  • If you complained about problems with accommodations for pumping, your employer must respond appropriately and fulfill its obligations to provide breaks and a private location to pump each time you need to pump.
  • You can’t be retaliated against if you complain that your employer is not giving you the ability to pump or about the conditions for pumping.
• Federal law forbids covered employers from treating workers worse than others or harassing them harassing workers based on pregnancy, childbirth, or related conditions, or because of gender stereotypes related to caregiving. That includes discriminating against you because you are breastfeeding or because you have just given birth, or because of your caregiving obligations.

What to do if you are discriminated against

• If your employer is interfering with your rights to leave under the FMLA, you can complain to the U.S. Department of Labor, or file a lawsuit.
• If you’re facing discrimination because you are a new parent or because of your caregiving responsibilities, you can file a discrimination charge with the federal Equal Employment Opportunity Commission, and/or the parallel state agency.
• If you feel uncomfortable or harassed, you should report the unwelcome behavior to your human resources department.(See the section on workplace harassment, above).
• If your employer attempts to fire or retaliate against you after you complain about discriminatory unfair treatment when you return to work, you are entitled to file a retaliation complaint, either with the federal Equal Employment Opportunity Commission, the federal Department of Labor, or both, as well as seeking relief in court. You should consult an attorney if you think you're being retaliated against.