Protecting Your Rights at Work – Part Two

Questions Posed:

• How do you know what your rights are at work in reference to sexism?
• Do I have any recourse if male co-workers are being given preferential treatment?
• How can you address subtle sexism in the workplace?

Sexism in the workplace is widespread, particularly in the technology industry. A recent article in The Atlantic reported that in a study of 200-plus senior women in tech, nearly all of them had experienced sexism on the job.¹

How does sexism impact the workplace?

There are many reasons why sexism occurs in tech—low numbers of women in the workplace, a sexist “bro” culture, the lack of established HR practices—but the reasons do not excuse the damage it does to equally (if not more) qualified women who are trying to make it while playing by the rules.

Gender discrimination means treating people differently because of their sex. There are obvious ways that sexism can impact women at work, such as decisions not to pay or promote women as much for the stated reason that they are women. But there are also many ways in which a sexist culture can subtly permeate “neutral” employment practices in a way that disadvantages women. For instance, women tend to fare worse when performance evaluation policies require managers to rank their employees against each other. In other words, some ostensibly neutral policies impact women differently and more negatively than they do men. Both types of gender discrimination—overt and implicit—are illegal when they affect the terms and conditions of your employment.

What can you do if you experience sexism in the workplace?

Write It Down: Even if you’re not sure, you should document any instances in which you think you have been discriminated against. That means writing down names, dates, places, and what happened and saving related emails, text messages, social media posts, and other documents. Of course, do not access any confidential documents to which you are not entitled and beware of secretly recording conversations (which can be illegal depending on where you work).

Report It: There are many ways to report gender discrimination—public and non-public—including reporting it internally (non-public), filing a complaint with the Equal Employment Opportunity Commission (non-public), or filing a lawsuit (public). You should use your judgment as to what is the best option in your situation.

File an administrative complaint with the Equal Employment Opportunity Commission (EEOC) and/or your state agency (such as the California Department of Fair Employment and Housing). Filing such an administrative complaint is a required first step to pursuing your rights in court under some anti-discrimination laws. Deadlines for filing EEOC complaints can be short—either 180 or 300 days depending on your state (it is 300 days in California).

Particularly if you feel that reporting the discrimination internally will not or did not help you, you may want to go to the EEOC (or your parallel state agency). These complaints are not public, but your employer will get a copy of your complaint.

You should consult with a lawyer in your area to make sure that you are filing your complaint within the right time period. A lawyer can also help you draft it.

Sue: Gender discrimination is against the law, and if it is happening to you, it may be happening to other women you work with as well. You can sue on behalf of yourself or on behalf of women at your workplace who are facing similar issues (often referred to as a “class action”). Some studies have shown that employment discrimination class actions are more likely to be successful and change employment policies (i.e., “recode” your workplace) than individual lawsuits. ²

If you have any interest in pursuing a legal claim, you should consult with a lawyer who can advise you about the option that best suits your needs. Initial consultations with lawyers are often free, and many lawyers work on a contingency basis (meaning they only get paid if you get paid).

While this blog post addresses legal options for addressing sexism at work, choosing when and how to stand up for yourself is a personal decision. Please remember that you are not alone, and take advantage of other resources available to you (such as mentors, friends, Women Who Code).

Written by Lin Y. Chan, a partner at Lieff Cabraser Heimann & Bernstein, LLP based in San Francisco, California, in answer to questions sourced from the Women Who Code community.

¹L. Mundy, “Why Is Silicon Valley So Awful to Women?, The Atlantic, Apr. 2017, at https://www.theatlantic.com/magazine/archive/2017/04/why-is-silicon-valley-so-awful-to-women/517788/.

² See, e.g., Laura Beth Nielsen, et al., Contesting Workplace Discrimination in Court: Characteristics and Outcomes of Federal Employment Discrimination Litigation 1987-2003, Am. Bar Found. (Oct. 29, 2008), http://www.americanbarfoundation.org/uploads/cms/documents/nielsen_abf_edl_report_08_final.pdf; Tristin K. Green, Targeting Workplace Context: Title VII as a Tool for Institutional Reform, 72 Fordham L.
Rev. 659, 660 (Dec. 2003).