Sexual Discrimination in Oregon
Oregon Sex Discrimination Laws
Oregon’s employment laws require employers to treat employees of both sexes equally. Although the laws against sex discrimination have been on the books for decades, sex discrimination still exists and it predominantly affects women. In 2019 alone, the Equal Employment Opportunity Commission received more than 23,000 complaints of sex-based discrimination, accounting for about one-third of the total complaints filed.
Sex discrimination in the workplace is a difficult issue to deal with. Despite its prevalence, many women are hesitant to come forward because they either are unsure about what to do, or they may feel intimidated or afraid of what might happen if they speak up. The information provided below is intended to assist you with identifying behavior that may constitute sex discrimination, along with some suggestions on steps you can take to protect yourself and your career from discriminatory behavior.
Types of Sex Discrimination
“Sex” discrimination is something of an umbrella term in employment law. It generally includes any adverse treatment based on an employee’s sex, but that mistreatment can take a variety of forms. Here are some common types of sex-based discrimination:
Sex discrimination is any unfair treatment based on an employee’s sex. Examples of sex discrimination include:
- Only hiring applicants of a certain sex for a job (although there are a few exceptions, depending on the nature of job)
- Unequal pay for equal work
- Failure to promote employees of a certain sex
- Unequal benefits provided to one sex but not the other – e.g., providing healthcare or other benefits for the spouse or family members of male employees, but not providing the same benefits for the spouse or family members of female employees
- Discrimination based on marital status of one sex but not the other
- Disciplining one sex differently than the other for similar performance or behavior issues
- Terminating an employee due to the employee’s sex
Although sex discrimination disproportionately affects women, the law protects employees of both sexes. Men can be discriminated against just like women. So if an employer gives preferential treatment to women, or denies equal employment opportunities to men (typically in positions and industries predominated by women – such as nursing positions and the fashion industry), the employer’s conduct constitutes sex discrimination, even if the affected employee is a man.
The words “sex” and “gender” are often used interchangeably in ordinary conversation, but there is a notable difference in both science and the law. A person’s “sex” refers to the biological characteristics that the person was born with, while “gender” generally refers to the attitudes, beliefs, and behaviors that a cultural group associates with a particular sex. A person’s “gender identity” is how that person experiences their gender. A person may identify with any of dozens of recognized genders, or no gender at all.
While both Oregon and federal anti-discrimination laws only prohibit “sex” discrimination, as opposed to “gender” discrimination, courts generally take the view that discrimination based on a gender-related trait is a form of sex discrimination. Therefore, if you have been mistreated because your gender identity or gender-related trait does not conform to stereotypical attitudes and beliefs about how a person of a particular sex should look and behave, you likely experienced sex discrimination.
Pregnancy discrimination happens when a woman is treated unfavorably due to becoming pregnant, having a child, or experiencing a medical condition related to pregnancy.
Pregnancy discrimination has been illegal since 1978, when Congress passed the federal Pregnancy Discrimination Act to clarify that discrimination “on the basis of sex” includes unfair treatment due to pregnancy and pregnancy-related conditions.
Similarly, Oregon’s anti-discrimination statutes provide that “the phrase ‘because of sex’ includes, but is not limited to, because of pregnancy, childbirth and related medical conditions or occurrences.” That means discrimination on the basis of pregancy is considered the same as discrimination on the basis of sex. It also means that if you develop a medical condition related to your pregnancy, your employer cannot treat you differently because of your medical condition or need to take medical leave.
Both Oregon and federal law also require employers to reasonably accommodate pregnant workers in the same manner as other employees who are similarly able or unable to work. So, for example, if an employer provides light duty to an employee who is on lifting restrictions due to a work injury, the employer must provide similar light duty accommodations to a worker who has similar lifting restrictions due to pregnancy. Failing to do so would be sex discrimination.
Pregnancy discrimination is a particularly insidious form of discrimination because it is harmful to both the mother and her child. Terminating a pregnant employee can deprive the mother of much needed financial resources and healthcare benefits to care for her child, both before and after birth. Harassment based on pregnancy can also lead to serious prenatal issues, such as elevated blood pressure and maternal stress, which have been associated with poor birth outcomes.
If you are pregnant, you already have a lot on your plate. Losing a job while pregnant is devastating, both emotionally and financially, and couldn’t come at a worse time. If you believe your pregnancy played a role in your termination or are otherwise being mistreated because you are pregnant, you should consider consulting with a Portland pregnancy discrimination attorney who can help protect you and your baby.
Harassment is a form of sex discrimination when an employee is subjected to unwelcome verbal or physical conduct baked on that employee’s sex. Sometimes this is called “sexual harassment,” although the harassment does not have to be “sexual” in the ordinary sense of the word. Harassment can also be non-sexual in nature, meaning that it might not involve sexual advances, physical touching, or requests for sexual favors. If the harassment includes offensive remarks about a person’s sex or gender, disparate treatment of one sex, or conduct that has a disproportionate effect on one sex, the harassment can still be considered sex discrimination.
To learn more sex-based harassment, please visit our Portland sexual harassment page.
Sexual Orientation Discrimination
Sexual orientation discrimination involves mistreating an employee due to biases towards that employee’s sexual preferences. Federal law considers sexual orientation discrimination as a form of sex discrimination, while Oregon law considers sexual orientation to be its own protected class. In either case, the law prohibits employers from taking negative job actions or denying equal benefits based on an employee’s sexual preferences.
How to Prove Sex Discrimination in the Workplace
Sometimes sex discrimination can be easy to recognize, but sometimes it is not. Employers and managers in this day in age are typically shrewd enough to avoid leaving any evidence of discrimination. For this reason, most cases involving sex discrimination do not have a “smoking gun” document or other damning pieces of evidence for the employee to rely on. Most cases must be proven “circumstantially” by showing that the surrounding facts and circumstances suggest that sex or gender played a role in the employment decision or mistreatment at issue.
For sex or gender discrimination cases involving a negative job action, these are some things we look for that might indicate the employer’s conduct was discriminatory:
- You were more qualified for a job that was given to someone of the opposite sex
- You had good job performance and were meeting your employer’s legitimate expectations when you were fired or demoted
- You were replaced by someone of the opposite sex or different gender
- You were disciplined for an issue that employees of the other sex were not
- The people you worked with made comments expressing a discriminatory bias towards your sex or gender
- Your employer applied its policies inconsistently to men and women
- Your employer gave a false reason for the negative job action taken against you
- Your employer has a history of mistreating employees of your same-sex or gender
- People of your sex or gender are underrepresented in your employer’s workforce
In cases involving harassment, we generally must show that you were subjected to unwelcome conduct based on your sex or gender, and that the conduct was bad enough to create a hostile work environment. These are some examples of behavior that can create a discriminatory work environment:
- Gender-related jokes
- Inappropriate pictures or cartoons that are offensive to a particular sex or gender
- Offensive comments about female anatomy or bodily functions
- Expressing sex-based stereotypes, such as “this is a man’s job”
- Derogatory remarks or actions directed towards someone due to their gender
- Physically aggressive behavior taken against employees of a certain sex or gender
- Labelling an employee with gender-offensive nicknames
- Ostracizing or ignoring certain employees but not others
- Hostile attitudes and demeanors towards employees of a particular sex or gender
- Holding employees of different sexes or genders to different standards
The lists above are just examples of sex discrimination and gender harassment. There are many other ways sex discrimination can rear its ugly head. This is why it is important to consult with an experienced Portland gender discrimination attorney if you believe you have experienced sex-based discrimination or harassment. A trained attorney knows what evidence to look for and how to obtain it.
How to Protect Yourself From Sex Discrimination in the Workplace
When gender discrimination happens in the workplace, you need to take steps to protect your job and preserve your legal rights. Each situation might call for a different approach depending on the facts. Therefore, it is best to work with an attorney to help you follow the right steps for the most successful outcome. If you need an Oregon gender discrimination lawyer, or would like a free consultation to see if you may have a case, please give me a call or send me a message. I would be happy to talk through your situation and point you in the right direction.
If you decide to go it alone, here are some steps you can take to protect your rights:
1. Report the discrimination/harassment
If you experience sex or gender discrimination while you are still employed, it is important to promptly report it. Sometimes, this can fix the problem with no further steps. Your employer may discipline the offending employee(s), or provide other solutions that can help you avoid further problems.
It is important to report the discrimination right away because the longer you wait, the less of a problem it will appear to be. Sometimes employees wait until after they have been terminated to report discrimination or harassment. When that happens, the former employer may attempt to portray the employee as making up an after-the-fact accusation to get revenge at the employer. You can avoid these slanderous allegations by reporting the sex or gender discrimination while you are still employed.
It is best to consult your employee handbook to locate your employer’s policy on reporting discrimination. Most employers have them. You should follow the policy when you are reporting discrimination to avoid any cricitism for failing to do so. If the situation is too urgent to wait until you can find the policy, you should at least report the issue to someone in management or HR.
When you are reporting discrimination, it is best to do so in writing. Email is the preferred method, so there is no dispute about who said what, when it was said, and who it was said to. Text message is another option, although sometimes those messages might get deleted after a relatively short period of time, depending on your device settings and storage capacity. If you text someone about your issue, you should screenshot your messages in case you need them later on to prove that you complained. Be sure to capture the date and time that your message was sent.
It is also okay to make a handwritten report. Sometimes employers have “incident reports” or other forms you can fill out. However, I have seen many cases where my clients were certain that they filled out the appropriate form, but the employer conveniently lost it, making the issue a matter of he said/she said. If you make your report with a handwritten form or notes, you should make a copy or take a picture of your report before you turn it in. You would be surprised how often they go missing when their existence is harmful for the employer.
As a matter of last resort, you can also report your concerns by telephone if that is an available option. Some employers have “Ethics Hotlines” or something of the like for employees to report concerns. However, these hotlines are generally run by third-party companies and are notorious for skewing employee complaints to take the “sting” out of the situation. In one of the most egregious cases of sex-based harassment that I’ve ever handled, my client endured months of abuse and mistreatment and spent over 30 minutes talking on the phone with her company’s ethics hotline. The hotline administrator documented my client’s with only ten words: “Employee reports she is having problems with her district manager.” In the lawsuit that followed, the employer tried to accuse my client of exaggerating her claims due to the brevity of the hotline report.
If you report your concerns by telephone, you should document what number you called, who you talked to, what was said, how long the conversation was, and find out what the next steps are for being contacted about your complaint. If you reported to a hotline, you should ask for a case number and jot that down in case your employer later denies that you ever called.
2. Tell the truth
This should go without saying, but always tell the truth when making your complaint. If you make a false statement, your employer may try to use that to cast doubt on your complaint. If the credibility of your complaint is in question, that may negatively affect the outcome of your complaint and any subsequent legal case.
By the same token, telling the truth also means being comprehensive in reporting your concerns. You should make sure your employer is aware of the full scope of the problem so they can formulate an appropriate response. You could also be subjected to criticism in subsequent legal action if you allege discriminatory actions and events that happened before you made your report, but those actions and events were not included in your report.
Being comprehensive does not mean that you need to report every detail of everything that happened. If you are complaining about gender discrimination or harassment, it is most important to identify that as the issue of concern and provide as many examples of discriminatory behavior that you can think of. This will help the person on the receiving end of your report get a clear picture of what is going on.
3. Document the discrimination/harassment
Keeping a journal or notes of the discrimination or harassment you experienced will go a long way in helping you make a comprehensive report, and may prove invaluable in a legal case many months down the road. These notes should be taken at the same time or as soon as possible after you experienced potentially illegal behavior. The longer you wait, the harder it will be to remember what happened.
When you are writing your journal or notes, you should describe several things: (1) what happened, (2) when did it happen, (3) who was involved, (4) who witnessed what happened, (5) where did the events happen, and (6) how did the event(s) affect you, emotionally or otherwise.
4. Keep copies of important documents
Whether you are currently employed or recently fired, you should keep any documents that you were given related to your employment. Your employee handbook may have important policies that your attorney can use to prove discrimination or harassment. Likewise, performance reviews are particularly useful when the employer is claiming poor job performance. Any disciplinary actions or write-ups will be important for your attorney to review in assessing disparate disciplinary treatment or retaliation. Pay records may also be important to prove that you worked certain days that your employer says you didn’t, or to show that you were paid differently that employees of another sex or gender.
In Oregon, employees have a right to request a copy of their personnel file and pay records. Employers who refuse to furnish these documents within 45 days are subject to civil penalties. You can request a copy of your file yourself, but if you would like assistance please feel free to contact us and we can help you do it.
5. File a complaint with BOLI or EEOC
If your internal complaint went nowhere (as they often do), or if you were fired before or after making a complaint with your employer, you have the option to file a complaint of sex-based discrimination with the Oregon Bureau of Labor and Industries or the Equal Employment Opportunity Commission. Both agencies investigate potential violations of the anti-discrimination laws. BOLI focuses on enforcement of Oregon’s state laws, while the EEOC focuses on enforcement of federal laws.
While BOLI and EEOC were originally designed to help employees without the need of a lawyer, the reality is that employees who go through the complaint process with either agency rarely receive a favorable outcome. The statistics for BOLI complaints filed from 2016-2019 reveal that BOLI only found “substantial evidence” of an employment law violation in about 3% of all cases filed. Both government agencies serve noble purposes, but they are constrained by large caseloads and limited resources. Therefore, if you file a complaint with either agency, do not expect a favorable outcome.
However, there are important strategic reasons a lawyer might file a complaint with BOLI or EEOC. To pursue federal claims, an employee must file a complaint with either the EEOC or BOLI. So if you intend to pursue your federal claims, you must file a complaint within the time specified by law (300 days in Oregon). The agency complaint process may also provide an opportunity to resolve your case with your employer before moving into the next stage of the process – litigation.
6. File a lawsuit for discrimination
If your complaint to your employer or government agency did not result in a satisfactory resolution, you have the right to bring legal action against your employer in state or federal court. You will need help from an attorney with this process. The people who go it alone almost never get a good result. I don’t know a single case where a self-represented person prevailed in a discrimination lawsuit. The people who have attorneys, on the other hand, usually obtain a positive outcome in the vast majority of cases.
While it is best to consult with an experienced Portland employment discrimination attorney as soon as you begin experiencing gender discrimination in the workplace, you definitely need to talk to one before filing suit. There is simply no substitute for someone who can guide you through the process. An attorney can handle everything from investigating your case, filing the appropriate paperwork, obtaining evidence from the other side, dealing with the other side’s lawyers, and making the most persuasive presentation and arguments to the court and jury.
Although most lawsuits settle before trial, you should be selective in who you hire as your employment lawyer. Generally speaking, the cases with the best lawyers tend to get the most favorable results. You should look for a lawyer who has handled many discrimination cases from beginning to end.
Remedies for Sex Discrimination
Assuming you file your lawsuit and it does not settle, the law may allow you to recover substantial compensation depending how significant the discrimination was and what effect it had on you. These are some forms of compensation that you may be allowed to receive:
- Economic damages – These are money damages to compensate you for your lost pay and other benefits. They are based on how much you would have earned had you not lost your job from sex discrimination. For example, if you were making $50,000 per year, were fired for discriminatory reasons, and were only able to find work making $30,000 per year, you would be allowed to recover $20,000 per year in lost wages. If the sex discrimination or gender harassment caused you to seek medical treatment, your medical bills could also be recovered as economic damages.
- Non-economic damages – These are damages that generally can’t be calculated with a mathematical formula. These are designed to compensate you for all the ways the discrimination you experienced has impacted your life. The law recognizes that discrimination hurts people in more ways than just the pocket book. If you experienced emotional distress, humiliation, mental anguish, anxiety, depression or a host of other emotional symptoms that are all-too-common in these cases, your employer must compensate you with a fair value for what you went through.
- Front pay – Economic damages for lost wages generally looks backwards, while front pay looks at the amount of lost earnings you may be expected to suffer into the future. This is usually awarded by a judge after the jury decides in your favor. The amount depends on many factors, such as your earnings history, subsequent employment, occupation, and age.
- Punitive damages – These damages are assessed to punish a business for allowing discrimination to occur in its workplace, and deter other business from participating in similar conduct. This requires evidence that your employer acted intentionally or with reckless disregard to your rights. Although punitive damages are relatively rare in some areas of the law, they are more common in discrimination cases because discrimination is inherently about insidious motives and intent. However, state and federal laws limit the amount of punitive damages you can recover in a gender discrmination case, which is an important consideration for your attorney in selecting where to file your case and what claims to bring.
- Attorney’s Fees – If you win your case at trial, the law also allows the court to award you attorney’s fees. This is one of the strongest incentives the law can provide to encourage employees to bring legitimate claims. This allows cases to be brought even where economic damages are relatively minor. The law wants employees and their lawyers to enforce the anti-discrimination laws, so it shifts the costs of prosecuting even minor claims onto the parties responsible for breaking those laws.
Should I Hire a Lawyer to Help with Gender Discrimination?
We recommend that you consult with an experienced Oregon sex discrimination attorney if have experienced gender harassment or discrimination in the workplace. Kevin Jones has successfully handled many sex discrimination cases that resulted in substantial compensation for employees who were treated unfairly under the law. Although every case is different and we do not guarantee results, we would be happy to provide a no-obligation consultation to see if you might have a case we can help with. Not all cases will warrant hiring a lawyer, but there is no harm in talking to one for free about your problem.
Take the next step. Give us a call or send us a message today.
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