Fired, Passed Over, or Harassed? California's Discrimination Law Is Broader Than You Think.

California's Fair Employment and Housing Act is broader than federal anti-discrimination law in nearly every respect: it covers more employers, more characteristics, and more kinds of conduct, and it allows for greater recovery. Many workers who assume they have no case under federal law have a strong one under FEHA.

The Law

FEHA is codified at Cal. Gov. Code § 12900 and following. Its core employment provision, § 12940, makes it an unlawful employment practice for an employer to refuse to hire, discharge, or discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a protected characteristic. The law is enforced by the California Civil Rights Department, formerly the Department of Fair Employment and Housing.

Protected Characteristics

FEHA prohibits discrimination based on:

• Race, color, national origin, and ancestry
• Religion and religious creed, including religious dress and grooming practices
• Sex, gender, gender identity, and gender expression
• Sexual orientation
• Pregnancy, childbirth, breastfeeding, and related medical conditions
• Physical disability, mental disability, and medical condition
• Genetic information
• Marital status
• Age, for persons forty and over
• Military and veteran status
• Reproductive health decisionmaking

The law also protects against discrimination based on a perception that a person has one of these characteristics, and based on association with someone who does. Under Cal. Gov. Code § 12926, "race" is defined to include traits historically associated with race, including hair texture and protective hairstyles.

Which Employers Are Covered

FEHA's discrimination provisions apply to employers with five or more employees. Its harassment provisions apply to all employers, regardless of size, and extend to conduct by supervisors, coworkers, and even non-employees the employer knew or should have known about. Federal law, by contrast, generally requires fifteen employees before its main anti-discrimination statute applies.

What FEHA Prohibits

Discrimination

Adverse employment actions — termination, demotion, failure to hire or promote, reduction in pay or hours, unfavorable assignments — taken because of a protected characteristic. A protected characteristic need not be the only reason for the action; it is enough that it was a substantial motivating factor.

Harassment

Unwelcome conduct based on a protected characteristic that is severe or pervasive enough to alter the conditions of employment and create an abusive working environment. Harassment does not require a loss of pay or position. The Legislature has declared that a single incident of harassing conduct can be sufficient 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 coworkers and others if they knew or should have known and failed to take corrective action.

Failure to accommodate

Employers must provide reasonable accommodation for an employee's known physical or mental disability, and for religious beliefs and practices, unless doing so would impose an undue hardship. They must also engage in a timely, good-faith interactive process with the employee to identify an accommodation. Failure to accommodate and failure to engage in the interactive process are each independent violations. See § 12940(m) and (n).

Retaliation

Under § 12940(h), an employer may not retaliate against a person for opposing practices forbidden by FEHA, for filing a complaint, or for participating in an investigation or proceeding. Retaliation claims are frequently stronger than the underlying discrimination claim, because the timing and the employer's reaction are often well documented.

Failure to prevent

Under § 12940(k), an employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. An employer with no policy, no training, and no complaint procedure has an independent problem.

How to File

Before suing under FEHA, an employee must file a complaint with the Civil Rights Department and obtain a right-to-sue notice. Under Cal. Gov. Code § 12960(e), the complaint must be filed within three years of the last act of discrimination, harassment, or retaliation. That is a much longer window than federal law provides.

An employee may request an immediate right-to-sue notice without a CRD investigation, which is what most represented employees do. Once the right-to-sue notice issues, the employee has one year to file a civil action. See § 12965(c)(1)(C).

What You Can Recover

FEHA remedies are substantially broader than under federal law, which caps compensatory and punitive damages based on employer size. FEHA has no such caps. A prevailing employee may recover:

• Back pay — lost wages and benefits from the adverse action to the date of judgment
• Front pay — future lost earnings where reinstatement is not feasible
• Emotional distress damages for the anxiety, humiliation, and mental suffering caused by the conduct
• Punitive damages where the employer acted with malice, oppression, or fraud
• Attorney's fees and costs under § 12965(c)(6), which the court awards to a prevailing employee as a matter of course
• Injunctive relief, including reinstatement and policy changes

What to Do

• Write down what happened, when, who was involved, and who witnessed it, as close in time to the events as possible.
• Save every email, text, performance review, and written communication related to the conduct and to any complaint you made.
• If your employer has a complaint procedure, consider using it and keep a record that you did. Internal complaints are protected activity, and an employer's response to them is often revealing.
• Do not rely on the employer's HR department to protect your interests. Its job is to protect the company.
• Be mindful of the three-year deadline to file with the CRD.

The Bottom Line

FEHA protects nearly every California worker from discrimination, harassment, and retaliation based on a long list of characteristics, applies to employers as small as five people, allows three years to file, and provides for uncapped damages plus attorney's fees. If you were treated differently because of who you are, or punished for speaking up, the law is on your side.