How do I prove sex discrimination?

A reader asks whether she should file a sex discrimination lawsuit.

By , J.D. · UC Berkeley School of Law


I was recently passed over for a promotion to management, and I think it's because I'm a woman. My manager sometimes makes questionable comments about mothers working outside the home, women being more emotional than men, and so on. He has never promoted a woman in the few years that he's been responsible for making these decisions. At the same time, though, there haven't been many total promotions, and none of the men he selected are obviously unqualified. I'm not sure what to do; would I have a good sex discrimination case in these circumstances?


Whether you have -- or anyone else has -- a strong discrimination case depends on all of the facts and circumstances. Most discrimination lawsuits ultimately come down to the decision maker's intent. If the decision was based on bias or prejudice against a protected class of people, it is discriminatory. (Disparate impact lawsuits, in which the employee claims that the employer's facially neutral policy or practice had a disproportionately negative effect on a particular group, are an exception: They are based on the effect of the employer's action, not the intent behind it.)

Of course, it's difficult to prove what's inside another person's head. That's why discrimination lawsuits are very fact-intensive. Unless the decision maker admits discrimination, the employee has to provide enough circumstantial evidence to convince the judge or jury that the decision was motivated by bias. Your manager didn't announce, "I'll never promote a woman to management." Indeed, this type of direct evidence of discrimination is increasingly rare these days. So you'll have to provide circumstantial evidence that he intended to discriminate against you because you are a woman.

First, you must make what the courts call a "prima facie" case of discrimination. In your situation, you would have to show that:

  • You are in a protected class.
  • You were qualified for the promotion.
  • You didn't get the promotion.
  • The employer either promoted someone who is not in your protected class or continued looking for someone to fill the position.

Once you've made this showing, the employer must provide some evidence that it had a legitimate, nondiscriminatory motive for its decision. In your case, this will likely come down to qualifications. How do your skills, experience, performance, and so on stack up against the male employee who got the promotion? You can bet that the manager will say that the man who was promoted was more qualified in some way.

Finally, you will have an opportunity to show pretext: that is, that the employer's stated reason is false, intended to mask its true discriminatory intent. Your manager's sexist comments will help you here. Also, your manager's history of promoting only men may be relevant, particularly if you can show that equally or better qualified female employees were turned down. You might also find some fodder in your manager's stated reasons for not promoting you. If, for example, your manager said you were not assertive enough, you might have a good argument that this criterion is based on gender stereotypes, not on your actual qualifications. Similarly, if your manager assumed you would be unwilling to travel because you have children, but you are in fact amenable to travel requirements, you could argue that this was a gendered assumption.

As you can see, proving discrimination can be quite complicated -- and quite difficult. Before taking the plunge to pursue your claims in a legal forum, you might start by simply asking your manager why you were not promoted, expressing your disappointment in the decision, and stating your concern that gender bias may be at work. If you aren't satisfied by your manager's responses, you can complain to your company's HR department. Taking these steps first will help you get a clearer picture of the facts and give your employer a chance to rectify the situation, if necessary.

If you remain convinced that gender bias was at work, and you aren't satisfied by the way your company handles the situation, you will need to file a charge of discrimination with the Equal Employment Opportunity Commission or your state's fair employment practices agency before you can proceed with a lawsuit.

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