Gender / Sex Discrimination

Sex discrimination in the workplace involves treating an applicant or employee unfavorably because of that person’s gender, whether male or female. As expressed by the First Circuit in Sweeney v. Board of Trustees of Keene State College, “[o]ne familiar aspect of sex discrimination is the practice, whether conscious or unconscious, of subjecting women to higher standards of evaluation than are applied to their male counterparts.”

As Boston sex discrimination lawyers, we understand the critical types of evidence that must be gathered to successfully bring a gender discrimination claim. Employees who face gender discrimination may seek relief under the Massachusetts Fair Employment Practices Act and Title VII of the Civil Rights Act of 1964, which broadly prohibit all forms of unfavorable treatment including sexual harassment, pregnancy discrimination, and wrongful termination. In addition, the Massachusetts Equal Pay Act and Federal Equal Pay Act specifically prohibit employers from using gender to determine compensation, guaranteeing equal pay for equal work among both men and women in the workplace.

Sex discrimination cases today increasingly involve issues of gender stereotyping and unconscious bias. In the seminal case of Price Waterhouse v. Hopkins, the Supreme Court found that an employer who creates stereotyped expectations of femininity in the workplace runs afoul of Title VII. In doing so, the Supreme Court made clear that Title VII prohibits gender stereotyping:

An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.

Likewise, in Lipchitz v. Raytheon, the Supreme Judicial Court held that Massachusetts law also prohibits sex stereotyping, regardless of whether such discriminatory beliefs are made explicit:

Stereotypical thinking … involves categorizing people on the basis of broad generalizations, not necessarily accompanied by deliberate reflection or conscious thought. Employment decisions that are made because of stereotypical thinking about a protected characteristic or members of a protected class, whether conscious or unconscious, are actionable under G. L. c. 151B.

As many courts have held, notably the Seventh Circuit in Stewart v. General Motors, an employer’s use of subjective criteria to evaluate employee performance is “highly susceptible to abuse” and “could only reinforce the prejudices, unconscious or not, which Congress in Title VII sought to eradicate as a basis for employment.”

The Massachusetts Commission Against Discrimination’s ruling in Marsian v. Springfield Transit Management is a prime example of how unconscious, discriminatory animus may be inferred. There, the MCAD found the employer engaged in gender discrimination based, in part, on the inconsistent way it perceived similar traits among male and female employees:

Shotland negatively referred to Complainant as having a “stern” demeanor while she referred to certain traits of male applicants, such as possessing a commanding presence, as positive attributes. Such characterizations suggest that Shotland’s assessment of the personality and leadership ability of the candidates was gender biased or colored by gender stereotypes.

Unconscious bias against women in the workplace is well-documented in social science. In one particular study by Dr. Eugene Caruso (et al.) of the University of Chicago, researchers asked male and female study participants to consider hypothetical job opportunities at consulting firms. The study revealed that, regardless of whether the participant was male or female, participants were willing to accept 22% less pay to work for a male boss.

Recognizing the subtleties of gender bias is vital to effectively presenting a sex discrimination claim. Through the use of similarly situated comparators and other forms of compelling circumstantial evidence, we are sensitive to the complexities inherent in gender discrimination cases and the evidence required to successfully prevail on such claims.

Under Title VII and Massachusetts law, victims of sex discrimination are entitled to compensatory damages in the form of economic loss and emotional distress damages; attorneys’ fees; costs; and punitive damages. Differences apply. The Civil Rights of 1991, for example, amended Title VII (among other statutes) to place combined compensatory and punitive damages caps on awards according to the size of the employer. The U.S. Supreme Court in Pollard v. EI du Pont de Nemours, however, made clear that these statutory caps do not apply to front pay awards. In contrast, the Massachusetts Fair Employment Practices Act contains no such caps.

With respect to punitive damages awards, however, due process considerations under M.G.L. c. 151B, §4 apply. In Haddad v. Wal-Mart, the Supreme Judicial Court clarified the punitive damages standard under M.G.L. c. 151B, §4 in a gender discrimination case:

Punitive damages are warranted where the conduct is so offensive that it justifies punishment and not merely compensation. In making an award of punitive damages, the fact finder should determine that the award is needed to deter such behavior toward the class of which plaintiff is a member, or that the defendant’s behavior is so egregious that it warrants public condemnation and punishment.

Overall, from differing burdens of proof to caps on damages awards, there are many strategic considerations that must be weighed when bringing a gender discrimination claim.

As lawyers concentrating in employment law and located in the heart of Boston, we look forward to meeting with you and addressing your gender discrimination concerns.

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