California Employment Discrimination

What is FEHA?

The California Fair Employment and Housing Act (FEHA) is the primary state law prohibiting employment discrimination, harassment, and retaliation. Found in Government Code sections 12940 and following, FEHA provides broader protections than federal law and applies to smaller employers.

Protected Categories Under FEHA

California law prohibits discrimination based on the following protected characteristics:

• Race and Color (Gov. Code § 12940(a))
• Religion and Creed (includes religious dress and grooming)
• Sex, Gender, Gender Identity, Gender Expression
• Sexual Orientation
• Marital Status
• National Origin and Ancestry
• Disability (physical and mental)
• Medical Condition (cancer history, genetic characteristics)
• Genetic Information
• Military and Veteran Status
• Age (40 and over)

Types of Discrimination

1. Disparate Treatment (Direct Discrimination)

Treating an employee or applicant differently because of a protected characteristic. Examples include refusing to hire, promoting, or paying someone based on race, sex, age, etc.

2. Disparate Impact (Indirect Discrimination)

A facially neutral policy that disproportionately harms a protected group without business justification. Example: height requirements that exclude most women without job necessity.

3. Harassment (Gov. Code § 12940(j))

Unwelcome conduct based on a protected characteristic that creates a hostile work environment or results in a tangible employment action (quid pro quo). California imposes strict liability on employers for harassment by supervisors.

4. Retaliation (Gov. Code § 12940(h))

Adverse action against an employee for:

• Opposing discriminatory practices
• Filing a discrimination complaint
• Participating in an investigation or proceeding
• Requesting reasonable accommodation

5. Failure to Accommodate (Gov. Code § 12940(m))

Employers must provide reasonable accommodations for employees with disabilities, pregnancy, religious practices, or other protected needs, unless it creates an undue hardship.

6. Failure to Engage in Interactive Process (Gov. Code § 12940(n))

Employers must engage in a timely, good-faith interactive process to identify reasonable accommodations. Failure to do so is independently actionable.

Available Remedies Under FEHA

If you prevail in a FEHA claim, you may recover:

1. Back Pay

Lost wages from the date of the discriminatory act until trial or settlement. This includes salary, bonuses, commissions, and lost benefits (health insurance, 401(k) contributions, stock options).

2. Front Pay

Future lost earnings if reinstatement is not feasible. Courts typically award 6-24 months of front pay, though longer periods are possible in severe cases.

3. Emotional Distress Damages

Compensation for mental anguish, humiliation, anxiety, depression, and other emotional harm. California has no cap on emotional distress damages under FEHA (unlike the $300,000 federal cap). Awards range from $10,000 to $500,000+ depending on severity.

4. Punitive Damages (Gov. Code § 12965)

Available when the employer acted with malice, oppression, or fraud. No cap under FEHA (unlike federal law). Punitive damages are more common in cases involving:

• Egregious harassment by management
• Deliberate retaliation
• Systematic discrimination
• Ignoring complaints

Punitive damages are often 1-4x compensatory damages but can be much higher for large employers.

5. Attorney Fees and Costs

Prevailing plaintiffs are entitled to reasonable attorney fees and costs under Gov. Code § 12965(c)(6). This is a significant advantage for employees, as fees can exceed damages in some cases.

6. Injunctive Relief

Court orders requiring the employer to change policies, reinstate the employee, promote the employee, or take other corrective action.

The Administrative Process: Filing with CRD

Before filing a lawsuit in court, you must first file a complaint with the California Civil Rights Department (CRD, formerly DFEH) or the federal Equal Employment Opportunity Commission (EEOC).

Step 1: File a Complaint with CRD

Deadline: Generally 1 year from the last discriminatory act. Important: Recent changes have extended this to 3 years for certain claims, but don't rely on the longer period—file within 1 year to be safe.

How to File: Online at calcivilrights.ca.gov, by mail, or in person at a CRD office.

Step 2: CRD Investigation or Right-to-Sue

After you file, CRD may:

• Investigate: CRD will request a response from your employer and may conduct interviews or gather evidence.
• Issue Immediate Right-to-Sue: You can request an immediate right-to-sue letter without waiting for CRD's investigation (common in practice).

Step 3: File a Civil Lawsuit

Once you receive a right-to-sue letter from CRD or EEOC, you have 1 year to file a lawsuit in superior court. Do not miss this deadline—it is strictly enforced.

EEOC vs. CRD: Dual Filing

California has a worksharing agreement with the EEOC. If you file with CRD, it is automatically cross-filed with the EEOC. This preserves your federal claims (Title VII, ADA, ADEA) in case you want to pursue both state and federal remedies.

• EEOC Deadline: 300 days from the last discriminatory act (with CRD cross-filing)
• CRD Deadline: 1 year from the last discriminatory act

Key Differences: FEHA vs. Federal Law

Hostile Work Environment vs. Quid Pro Quo

Hostile Work Environment

Unwelcome conduct based on a protected characteristic that is:

• Severe or pervasive enough to alter the conditions of employment
• Objectively offensive (a reasonable person would find it hostile)
• Creates an intimidating, hostile, or abusive work environment

Examples: racial slurs, sexual comments, displays of offensive material, physical touching, exclusion based on protected characteristics.

Quid Pro Quo Harassment

A supervisor conditions job benefits on submission to sexual advances or other harassment. Examples:

• "Sleep with me or you're fired"
• "Go on a date with me and I'll promote you"

Employer Liability: Employers are strictly liable for quid pro quo harassment by supervisors, even if the employer didn't know about it.

Reasonable Accommodation and Interactive Process

Under Gov. Code § 12940(m), employers must provide reasonable accommodations for:

• Physical or mental disabilities
• Pregnancy, childbirth, and related medical conditions
• Religious beliefs or practices

What is a Reasonable Accommodation?

Modifications or adjustments that enable an employee to perform essential job functions or enjoy equal benefits of employment. Examples:

• Modified work schedule
• Reassignment to a vacant position
• Ergonomic equipment
• Leave of absence
• Modified duties
• Religious dress or grooming exceptions

The Interactive Process (Gov. Code § 12940(n))

When an employee requests accommodation, the employer must engage in a timely, good-faith interactive process to identify effective accommodations. Failure to engage in the interactive process is independently actionable, even if a reasonable accommodation was not possible.

What courts look for:

• Did the employer respond promptly to the request?
• Did both parties communicate in good faith?
• Did the employer explore alternative accommodations?
• Did the employer obtain medical information if needed?

Employer Defenses

Employers may assert defenses such as:

• Legitimate, nondiscriminatory reason: The adverse action was based on performance, not discrimination.
• Business necessity: The policy serves a compelling business need (disparate impact cases).
• Undue hardship: Accommodation would be too difficult or costly.
• After-acquired evidence: Employee engaged in misconduct that would have led to termination anyway (limits back pay, but doesn't defeat liability).

Retaliation: A Separate Claim

Retaliation claims are often easier to prove than the underlying discrimination claim. To establish retaliation, you must show:

1. You engaged in protected activity (complained about discrimination, filed a claim, requested accommodation)
2. Your employer took adverse action against you
3. There was a causal connection between the protected activity and the adverse action

Temporal Proximity: If adverse action occurs shortly after protected activity (e.g., fired 2 weeks after filing a complaint), courts may infer causation.