Wisconsin Attorneys Defending Victims of Workplace Discrimination on the Basis of Sex or Gender, Including the LGBTQ Community Discrimination Based on Sex is Illegal
Federal and state laws prohibit discrimination based on sex, sexual orientation, or gender identity, including transgender status. All three types are under the umbrella of sex discrimination or discrimination “on the basis of sex.” Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act (“WFEA”) prohibit treating an employee unfavorably on the basis of sex (including sexual orientation and gender identity) in any aspect of employment, including hiring, firing, wages, schedules, training, layoffs, promotions, and fringe benefits. In fact, even a policy or practice that applies to everyone can be illegal if it negatively impacts some employees on the basis of sex and is not a job-related necessity. To make a claim for sex discrimination, an employee must show
all of the following:
- The employee is in a protected class (based on sex, sexual orientation, or gender identity)
- The employee is qualified for a position (if an applicant) or performing the duties of a position successfully (if an employee)
- The employee suffers an adverse employment action (e.g., is not hired, not promoted, has hours cut, or is terminated)
- An employee who is outside of the protected class (e.g., has a different sex, sexual orientation, or gender identity) is treated more favorably (e.g., is hired, promoted, is scheduled for more hours, or is not terminated).
When an employee brings a sex discrimination claim, the employer must present some evidence of a legitimate, nondiscriminatory reason for the adverse action.
Sexual Harassment is Illegal
Sex discrimination does not have to be sexual in nature to be unlawful, but sexual harassment is also a form of sex discrimination. Generally, the law allows off-color comments, isolated incidents, teasing, or other “unpleasantries.” For sexual harassment to be unlawful, it must be one of two types:
- Quid pro quo: an employee’s pay, position, benefits, employment, or opportunities for promotion are conditioned on unwelcome sexual advances or favors.
- Hostile work environment: unwelcome conduct of a sexual nature that is so “severe and pervasive” that it adversely affected the terms and conditions of that employee’s employment.
The harasser can be a supervisor, a co-worker, or even someone who doesn’t work for the employer, such as a customer or client. The harasser can be a different gender or sexual orientation than the victim or the same.
Retaliation is Illegal
In addition, the law forbids retaliating against an employee who reports sex discrimination, or testifies, assists, or participates in a sex discrimination investigation or proceeding. To bring a claim for retaliation, an employee must show
all of the following:
- The employee engaged in protected activity (such as reporting harassment or assisting an investigation)
- The employee suffered an adverse employment action
- A connection exists between #1 and #2
Potential Recovery if You Win
If you win a sex discrimination suit, you may be awarded one or more of the following:
- back pay (pay for lost wages)
- front pay (pay instead of job reinstatement)
- compensatory damages (pay for pain and suffering)
- punitive damages (monetary punishment against the employer for discriminating)
- out-of-pocket expenses (for example, the out-of-pocket cost of insurance if benefits were lost)
- and other non-monetary relief, such as reinstatement to your former position
Courts also ordinarily award attorney fees, and the EEOC may award other costs incurred in bringing the claim.
If You Think You’ve Been Harassed
You have the right to be free from harassment and discrimination at work. When an employer learns of sex discrimination or sexual harassment, the employer must take action to prevent further harm. Otherwise, the employer can be liable even if the harasser was a third party, like a customer or client.
In Wisconsin, people who have experienced sex discrimination at work have
300 days from the date of discrimination to bring a claim. If you have questions about sex discrimination or sexual harassment at work, or if you believe you have suffered unlawful discrimination, please contact us to discuss your situation or legal rights with a Wisconsin employment attorney.
Please call a Madison employment discrimination attorney directly at (608) 257-0040 or a Milwaukee employment discrimination attorney at (414) 271-8650, or email us via our Contact Page.