Under Title VII, it is unlawful for an employer to do any of the following things based on an individual's sex (or race, color, religion, national origin, or failure to conform to gender stereotypes). First, an employer must not discharge, or fail or refuse to hire, any individual based on one or more such characteristics. Second, an employer must not discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment based on such characteristics.
How Much Evidence is Enough Evidence?
To establish a prima facie case (that is, a rebuttable presumption) of gender discrimination, an employee must be able to show that she was qualified for the position and that she was replaced by a person of the opposite sex (or that people of the opposite sex were treated more favorably). For example, a female employee might be able to show that male employees were treated more favorably by not being subjected to sexual harassment, which Title VII considers to be a form of sex discrimination. If the employee is fired, she need not prove that she was as qualified as her replacement, just that her performance met the employer's legitimate expectations at the time of her discharge.
Wrongful Discharge in Violation of Public Policy (California Specific)
Certain constitutional and statutory provisions specifically prohibit employers from discharging employees for designated reasons. The California Constitution, for example, states that a person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. In addition, California's Fair Employment and Housing Act makes it an unlawful employment practice to discriminate on the basis of sex, which includes a person's actual sex (or gender) or the employer's perception of his or her sex (or gender) based on an identity, appearance, or behavior different from that traditionally associated with the person's sex at birth.
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