How To Prove Gender Discrimination In The Workplace?

How To Prove Gender Discrimination In The Workplace

Anti-discrimination laws make it illegal for an employer to discriminate against an employee based on their protected personal characteristics. These protected characteristics include race, gender, age, disability, or sexual orientation. Even so, workplace discrimination still happens in many companies throughout the country.

This article will discuss the types of gender bias in the workplace and what an employee can do to prove they were discriminated against while doing their job.

Types of Gender Discrimination in the Workplace

Gender discrimination, in particular, happens when an employee is treated unfairly because they are a man or because they are a woman. Gender discrimination can be either direct or indirect. It can also take the form of harassment or victimization. 

Gender discrimination doesn’t need to be deliberate. Someone in the workplace may be discriminating against an employee without realizing it or meaning to, however, this might still count as workplace discrimination. The anti-discrimination law doesn’t allow positive discrimination favoring one gender. For example, an employer is not permitted to only recruit or promote women to a particular role because they have been previously discriminated against when applying for that position. It’s important to note that positive discrimination is not the same as a positive action, which is legal and allowed.

Aside from protecting both men and women from gender discrimination in the workplace, the law also protects workers from:

  • Pregnancy or maternity leave discrimination;
  • Discrimination due to gender reassignment (changing from one gender to another);
  • Discrimination due to being married or being in a civil partnership;
  • Discrimination based on gender expression or sexual orientation.

Direct gender discrimination happens when an employee is treated less favorably because of their gender than an employee of the opposite gender would be treated in the same circumstances. Harassment and sexist abuse are also forms of direct gender discrimination. Some examples of direct discrimination include:

  • Refusing credit to a female employee without her husband’s signature, while a male employee is not required to have his wife’s signature;
  • Advertising for a ‘waiter’ and with it implying that the position is only available to men.

Indirect gender discrimination applies to situations when companies have a rule, policy, or practice in which an employee of one gender is less likely to meet, which places them at a disadvantage to the opposite gender. Some examples of indirect discrimination are:

  • An employer requires all employees to work full-time. Since a lot more women have familial responsibilities, they are less able to work full-time than their male colleagues;
  • A mortgage provider that only gives mortgages to employees who work full-time. This leads to fewer women receiving a mortgage as more women than men work part-time.

How to Prove Gender Discrimination in The Workplace?

Workplace discrimination can be proven either with direct or circumstantial evidence. It can also be proven with evidence that workplace discrimination is a common practice. 

Direct evidence can be a statement or a testimony of another employee who has witnessed an employer treating someone unequally. It is anything that explicitly shows that the employer was behaving in a discriminatory manner. Direct evidence is the most desirable due to its reliability, however, it is also the most difficult to obtain because the employer or manager will not typically use blatant statements to explain their discriminatory actions and decisions. 

For example, an employer will not say to a candidate that they didn’t get the job because of their gender. They will state some other non-discriminatory reason for their decision instead. This is why most employees who file a gender-discriminatory complaint need to rely on circumstantial evidence in order to prove their case.

Some examples of direct evidence may be:

  • An email telling a manager to demote an employee because of their sexual orientation;
  • A written company policy to never hire candidates of a certain gender, even if the policy doesn’t mention gender discrimination;
  • Statements by an employer that they will never promote one gender over a certain level.

Circumstantial evidence of workplace discrimination is far more common. Also known as indirect evidence, circumstantial evidence includes facts that only suggest that an employee has experienced discrimination. Such evidence leaves the possibility that there are non-discriminatory reasons for the employer’s adverse action. Circumstantial evidence can come in the form of documents or statistical data that clearly shows that the employer has discriminated against an employee in favor of some other employee. For this reason, an employee who was discriminated against must gather a substantial amount of relevant documents like the company’s procedures and policies, notes, letters, or recordings they can use to reinforce their gender discrimination case.

Before they even start building their case on circumstantial evidence, an employee must make a prima facia case of discrimination, meaning they need to prove to the EEOC and the court that they are a member of a protected category. They may do so by answering these questions:

  • Are they a member of a protected category? For example, were they pregnant at the time the pregnancy discrimination occurred?
  • Are they qualified for the position? An employee must prove they are equally qualified for the position as the employee they were discriminated against.
  • Did their employer take any adverse employment actions towards the employee during any aspect of the employment? This involves hiring, promotion, compensation, and firing.
  • Have they been replaced by another employee that is also a member or protected category?

Once an employee has made a presumption of gender discrimination, they must ensure their circumstantial evidence is reliable enough to support their case. They may do so by answering these questions:

  • Has their employer treated them differently than an employee of the opposite gender?
  • Does their employer frequently make rude jokes or negative comments about their gender?
  • Does their employer have a history of harassing comments or taking discriminatory actions directed at their gender?
  • Has an employer shown hostility or unfair treatment towards other employees of the same gender, and did they witness it?
  • Are there any statistics proving employees’ claims of discriminatory actions taken against their gender over time?
  • Has the employer violated the company’s policy by taking discriminatory action against them?
  • Did their employer choose a less qualified employee for a specific position instead?

If an employee can answer most of these questions, they must compile as much evidence (documents and statistics) to sustain their discrimination claim. This may help them prove they have been discriminated against at work because of their gender.

If an employee is successful in their gender discrimination complaint, they may receive several compensations, including such financial remedies as back pay, reinstatement to their position, placement in a position they have been denied, an injunction against the employer to prevent or stop discriminatory practices, lawyer and expert witness fees, court costs, other costs related to the complaint, pain, and suffering, and punitive damages.


Under New York State and federal laws, an employer cannot discriminate against their employee based on gender. Gender discrimination can occur at any time in various forms, and it can have far-reaching effects on employees in the workplace. However, workplace gender discrimination can be challenging to prove before the EEOC and in court. That is why an employee must establish how they’ve been treated poorly or differently from the employees of the opposite sex. For this reason, an employee should rely on the help of a professional employment lawyer specializing in employment discrimination cases.

To find out whether you have a workplace gender discrimination case worth pursuing, feel free to contact Cilenti & Cooper today. We treat every case with the attention and care it deserves and can fight for your civil rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.



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