Discrimination, Harassment, and Retaliation Under California's FEHA

California's Fair Employment and Housing Act reaches further than federal anti-discrimination law in almost every direction. It covers smaller employers, protects more characteristics, gives employees more time to act, and doesn't cap damages. Workers who assume they have no claim under federal law sometimes have a strong one under FEHA.

FEHA is codified at Cal. Gov. Code § 12900 and following, and it's enforced by the California Civil Rights Department, formerly the Department of Fair Employment and Housing. Its central employment provision, § 12940, makes it unlawful to refuse to hire, fire, or discriminate against someone in pay or in the terms, conditions, or privileges of employment because of a protected characteristic.

Protected characteristics

FEHA prohibits discrimination based on race, color, national origin, ancestry, religion and religious creed (including religious dress and grooming), sex, gender, gender identity, gender expression, sexual orientation, pregnancy, childbirth, breastfeeding and related medical conditions, physical and mental disability, medical condition, genetic information, marital status, age for people forty and older, military and veteran status, and reproductive health decisionmaking.

It also covers discrimination based on a perception that someone has one of these characteristics, or on association with someone who does. Under Cal. Gov. Code § 12926, race includes traits historically associated with race, including hair texture and protective hairstyles.

Which employers are covered

The discrimination provisions apply to employers with five or more employees. The harassment provisions apply to every employer regardless of size, and they reach harassment by supervisors, coworkers, and even non-employees where the employer knew or should have known and didn't act. The main federal statute, Title VII, generally applies only to employers with fifteen or more employees.

The kinds of claims

Discrimination covers adverse actions such as firing, demotion, failing to hire or promote, cutting pay or hours, and undesirable assignments, when a protected characteristic was a substantial motivating reason. It doesn't have to have been the only reason.

Harassment is unwelcome conduct based on a protected characteristic that's severe or pervasive enough to alter working conditions and create a hostile environment. It doesn't require any loss of pay or position. The Legislature has declared that a single incident can be enough if it unreasonably interfered with the employee's work or created a hostile environment. See Cal. Gov. Code § 12923. Employers are strictly liable for harassment by supervisors, and liable for harassment by others when they knew or should have known and failed to take immediate and appropriate corrective action.

Failure to accommodate. Employers must reasonably accommodate an employee's known physical or mental disability unless doing so would cause undue hardship, and they must engage in a timely, good-faith interactive process to identify an accommodation. Those are separate obligations under § 12940(m) and (n), and failing either one is its own violation. Religious beliefs and practices must also be reasonably accommodated absent undue hardship, under § 12940(l).

Retaliation is prohibited by § 12940(h). An employer can't punish someone for opposing practices FEHA forbids, filing a complaint, or taking part in an investigation or proceeding. Retaliation claims are often easier to prove than the underlying discrimination, because the timing of events and the employer's reaction tend to be well documented.

Failure to prevent. Under § 12940(k), employers must take all reasonable steps necessary to prevent discrimination and harassment. An employer with no policy, no training, and no working complaint procedure has a separate problem.

Wrongful termination claims frequently accompany FEHA claims. California also recognizes a common-law claim for termination in violation of public policy, which can apply where someone is fired for reasons that violate a fundamental public policy expressed in a statute or constitutional provision.

Filing

Before suing under FEHA, an employee has to file a complaint with the Civil Rights Department and get a right-to-sue notice. Under Cal. Gov. Code § 12960(e), the complaint must be filed within three years after the last act of discrimination, harassment, or retaliation. Most represented employees request an immediate right-to-sue notice instead of a department investigation. After the notice issues, the employee generally has one year to file a lawsuit. See § 12965(c)(1)(C).

Remedies

Federal law caps compensatory and punitive damages based on the employer's size. FEHA doesn't. A successful employee can recover back pay and lost benefits, front pay where reinstatement isn't feasible, damages for emotional distress, punitive damages where the employer acted with malice, oppression, or fraud, and injunctive relief such as reinstatement. Under § 12965(c)(6), the court may award reasonable attorney's fees and costs, and prevailing employees ordinarily recover them.

If something happened to you, write it down while it's fresh: what happened, when, who was involved, and who saw it. Keep emails, texts, performance reviews, and anything related to complaints you made. Internal complaints are protected activity, and how an employer responds to them often says a lot. Keep in mind that HR's job is to protect the company.