Employlaw.com Sex Discrimination

In the last 20 years sex discrimination has developed into an extremely complex subject. So much so that on this page it would be a disservice to go into too much detail on issues relevant to pursuing or defending sex discrimination claims.

You might be thinking:

"What is so complex about sex discrimination? Sex is sex, and in the workplace behavior related to such is forbidden?" or:

"If I'm charged with sexually harassing someone, I'm in the sewers of Paris."

"If I am accusing someone of sexual harassment or suffered discrimination, I just won the state lottery."

Back in the "seventies and eighties" these statements may have been somewhat accurate. Employers, employees, judges, and lawyers did not know too much about this area of law so anything went, so to speak. Companies settled quickly to avoid embarrassing and costly litigation; male employees were immediately fired when accused; and women brought charges for remote or minor incidents [and were paid $ to settle]. So what changed?

Well, according to the book of "They Say" [meaning this is my opinion], during the past twenty years [in law, a long time] application and enforcement of sex discrimination law has been in its "developmental stage." In the seventies and early eighties, few sex discrimination cases were pursued, nor did many go to trial. As a result, appellate courts had yet to interpret the meaning of statutes prohibiting sex discrimination in the workplace.

For a number of reasons, in the mid-eighties, and on through the nineties, there was an increase in the number of sex discrimination claims filed by women. One reason for the rise in claims was, for example, increased public awareness that sex discrimination laws existed and victims could [or should] file complaints [recall the Clarence Thomas / Anita Hill Supreme Court nominee hearings; or the U.S. Senator Bob Packwood controversy].

As the number of claims increased, so too did the number of lawyers interested in handling sex discrimination cases. Lawyers "on both sides" began specializing in employment and discrimination claims. Large law firms established employment law departments staffed with lawyers exclusively representing employers in defense against claims. "Plaintiff" lawyers began specializing in representing employees who suffered sex discrimination.

All this has resulted in statute refinement and case law dealing specifically with application or enforcement of California's sex discrimination statutes. Lawyers and trial courts now have guidance on liability and damages in sex discrimination cases.

Another development: because of the sheer volume of sex discrimination claims now pursued, the filing of a sexual harassment claim is no longer newsworthy. Unless a case involves extremely bizarre or disgusting behavior or unless a public figure is the accused, the media is NOT interested in the story. This has resulted in employers not factoring in adverse publicity when deciding to defend against sex discrimination claims. Gone are the days [rightly so in many cases] where an employee could simply utter the words "sexual harassment" and expect a big check from the employer to follow.

As sex discrimination cases have worked their way through "the system," appellate courts have issued opinions interpreting the meaning of sex discrimination statutes. Some areas where the appellate courts have provided guidance to all concerned are:

1) what is and is not sex discrimination; for example, sexual harassment does NOT necessarily mean that the harassment has to involve sexual conduct . . . if a woman is harassed and treated differently than the men, such conduct may be unlawful;

2) what a victim must do to pursue a claim;

3) what are an employer's duties in regards to preventing, investigating and remedying charges; has the employer unlawfully retaliated against the victim because she complained about harassment [human nature being what it is, employers often retaliate against employees who complain about anything];

4) who can be held liable for sex discrimination; the employer? a supervisor? a coworker? third parties? all these people?

5) what are valid and invalid defenses to charges. Statute of limitations; lack of proof - no evidence; the complained of conduct never happened; the complaining victim was a worthless employee; or no one liked the complaining employee.

6) what are appropriate damages to award. Who was the prevailing or successful party in the case? If a plaintiff loses, should she have to pay the other side's attorneys' fees and costs?