If you believe that you were fired, denied a promotion, disciplined, or otherwise treated unfairly at work because of your gender, you should talk to an employment lawyer. An experienced lawyer will assess the facts, explain the strengths and weaknesses of your claims, and help you figure out how to move forward. The lawyer might offer to take you on as a client and try to negotiate with your employer, file a charge of discrimination with a government agency, or even represent you in a lawsuit against your employer.
A lawyer’s interest in taking your sex discrimination case will depend on all of the facts, including not only what happened to you at work, but also how much you could win in a lawsuit and whether you would make a favorable impression on a judge or jury.
A discrimination case ultimately comes down to the intent of the person making decisions. If you were fired, for example, you will have to prove that your employer fired you because of your gender. These days, very few discrimination cases involve explicit statements of bias. Although it was once quite common, most managers today are unlikely to admit that they promote only men, that they hold women to higher standards of workplace conduct or performance, that they pay men more because they are more likely to be supporting families, or that they prefer not to hire or retain women because they are more likely to need pregnancy and parental leave.
The fact that a manager won’t admit to these motivations doesn’t mean they don’t exist, however. Typically, a sex discrimination case is proved through circumstantial evidence. Has every promotion in the last few years gone to a man, even though there were female candidates who were just as qualified or more qualified? Did the roster of laid-off employees include mostly women, even though the targeted jobs are more evenly distributed by gender? Have managers made sexist remarks? Are women held to gender-based stereotypes regarding how they should act, speak, or dress?
A lawyer will look at all of these facts, and more, in assessing whether your employer might be liable for gender discrimination. To prove your case, you’ll need to show that you were denied a job opportunity or benefit (that is, you were fired, not promoted, or otherwise treated badly) for which you were qualified. If you weren't qualified for the position, it won’t prove anything to show that the position went to a qualified man. If that were true, your employer would be able to successfully argue that its decision was based on legitimate, job-based criteria. You will also have to show either that the benefit went to a man or that it remains available. If you were passed up for promotion in favor of a more qualified female candidate, you’d have a tough time proving that the decision was gender-based.
Proving that you were denied a benefit that went to a man instead won’t be enough to win a lawsuit. Ultimately, you’ll have to show that the decision was based on your gender. Your employer will undoubtedly argue that it had other reasons for its decision, such as your poor performance or lack of skills, the need to downsize for economic reasons, or the superior credentials of the man who got the promotion or replaced you. To refute these arguments, you’ll need evidence of pretext: proof that your employer’s stated reason is a cover-up for its actual discriminatory motive. Pretext evidence can take many forms, from statistics to sexist remarks to facts that refute the employer’s justification. For example, if the man who replaced you had less experience than your employer claims, or if you were told your position was being eliminated and it was instead filled by a man, that may be evidence of pretext. The lawyer will want to hear any and all evidence that might lead a jury to doubt the employer’s argument.
Even if you have bulletproof evidence that your employer discriminated against you, a lawyer won’t be interested in your case unless you have significant damages: monetary and other losses caused by your employer’s discrimination. In a sex discrimination case, damages include lost wages, lost benefits, damages for emotional distress, and possibly punitive damages (damages intended to punish the employer for particularly egregious conduct). Under federal and state law, you can also collect attorneys' fees if you win.
Damages might be an issue in your case if you didn’t lose your job, haven’t suffered significant emotional harm, and can’t point to particularly bad behavior by your employer as a basis for punitive damages.
A lawyer will also consider what witnesses and other evidence you will be able to present at trial. If you have any documentation of your claims, be sure to bring them when you meet with a lawyer. Also, be ready to provide the lawyer with contact information for any witnesses to your mistreatment, such as coworkers who might have heard sexist comments or a therapist who can attest to your emotional pain and suffering.
In any discrimination case, the most important witness is the person who was discriminated against: you. The lawyer will use your meeting to evaluate your strength as a witness. The lawyer will assess whether you appear credible and whether you can explain what happened to you in a clear, but not overly dramatic, way. Ultimately, you will carry the weight of proving your claims and convincing a judge or jury to award you money to compensate for your harm. A lawyer will be evaluating you to see whether you are up to the challenge.