📋 Overview: California Workplace Discrimination
Workplace discrimination occurs when an employer takes adverse employment action against an employee based on a protected characteristic. California's Fair Employment and Housing Act (FEHA) provides broader protections than federal law, covering more employers and more protected classes.
Who This Guide Serves
I draft these demand letters for two distinct audiences:
For Employees (Senders)
You experienced discrimination at work based on your race, gender, age, disability, religion, or other protected characteristic. You want to demand compensation before filing a lawsuit.
For Employers (Recipients)
You received a discrimination demand letter and need to understand your exposure, evaluate the claim's merit, and determine how to respond strategically.
FEHA Protected Classes
California protects more classes than federal law. Under Government Code Section 12940, employers cannot discriminate based on:
Race, Color, Ancestry
National origin, ethnicity, and associated characteristics including hair texture/styles (CROWN Act)
Sex, Gender, Gender Identity
Sex, gender expression, pregnancy, childbirth, breastfeeding, and related conditions
Sexual Orientation
Heterosexuality, homosexuality, bisexuality, and perceived orientation
Religion, Creed
Religious beliefs, observances, practices, dress, and grooming requirements
Age (40+)
Protects workers 40 and older from discrimination based on age
Disability
Physical disability, mental disability, medical conditions, and genetic information
Marital Status
Married, single, divorced, widowed, or domestic partner status
Military/Veteran Status
Past or present military service, reserve status, or veteran status
Reproductive Health
Reproductive health decision-making (added 2024)
Critical: CRD Filing Prerequisite
Before filing a lawsuit under FEHA, you must first file a complaint with the California Civil Rights Department (CRD, formerly DFEH). You have 3 years from the discriminatory act to file. You can request an immediate "Right to Sue" letter, then have 1 year to file suit.
Types of Discrimination
Disparate Treatment
Intentional discrimination - treating employees differently because of protected characteristic
Disparate Impact
Facially neutral policies that disproportionately harm protected groups without business necessity
Failure to Accommodate
Not providing reasonable accommodations for disability or religious practices
Failure to Prevent
Not taking reasonable steps to prevent discrimination in the workplace
What You Can Recover
- Back pay - Lost wages and benefits from termination/demotion
- Front pay - Future lost earnings if reinstatement isn't feasible
- Emotional distress - Mental anguish, humiliation, anxiety
- Punitive damages - To punish malicious or reckless conduct
- Attorney fees - Recoverable if you prevail
- Reinstatement - Return to your position
💼 For Employers: Responding to Discrimination Claims
If you've received a discrimination demand letter, understand that California juries are employee-friendly and FEHA claims can result in substantial verdicts. A strategic response is essential.
Exposure Assessment
Before responding, calculate your realistic exposure: lost wages + benefits + emotional distress (often $50,000-$500,000) + potential punitive damages (can be multiples of compensatory) + attorney fees. Settlement often makes sense when exposure exceeds defense costs.
Immediate Steps for Employers
- Preserve all evidence - Issue litigation hold for emails, personnel files, performance reviews
- Review the employment file - Document legitimate business reasons for any adverse actions
- Identify witnesses - Who can corroborate your legitimate reasons?
- Assess comparators - How were similarly situated employees treated?
- Evaluate documentation - Is there contemporaneous documentation of performance issues?
- Consult counsel - Get professional assessment before responding
Common Employer Defenses
Legitimate Business Reason
Documented performance issues, policy violations, restructuring, or economic necessity
Same Actor Inference
If the same person hired and fired employee, less likely discriminatory motive
Consistent Treatment
Evidence that similarly situated employees outside protected class were treated the same
BFOQ Defense
Bona fide occupational qualification (very narrow - rarely applies)
Warning Signs of Weak Defense
- Lack of documented performance issues before adverse action
- "Sudden" discovery of problems after complaint or protected activity
- Comments by decision-makers about age, gender, race, etc.
- Statistical disparities in treatment of protected group
- Inconsistent application of policies
⚖ Legal Basis: California FEHA Statutes
The Fair Employment and Housing Act provides the primary legal framework for workplace discrimination claims in California. These statutes form the basis of your demand letter.
Primary California Statutes
Government Code Section 12940(a) - Discrimination Prohibition
Makes it an unlawful employment practice for an employer to refuse to hire, discharge, or discriminate against any person in compensation or terms, conditions, and privileges of employment because of protected characteristics. Applies to employers with 5 or more employees.
Government Code Section 12940(m) - Failure to Accommodate
Requires employers to make reasonable accommodation for known physical or mental disabilities and for religious beliefs and observances, unless doing so would create undue hardship. Employers must engage in the interactive process.
Government Code Section 12940(n) - Interactive Process
Employers must engage in a timely, good faith interactive process with employees who request accommodation to determine effective reasonable accommodations. Failure to engage is independently actionable.
Government Code Section 12940(k) - Failure to Prevent
Employers must take all reasonable steps necessary to prevent discrimination and harassment. This includes implementing policies, training supervisors, and promptly investigating complaints. Failure to prevent is a separate cause of action.
Government Code Section 12940(h) - Retaliation
Prohibits retaliation against employees who oppose discrimination, file complaints, or participate in investigations. Retaliation is actionable even if the underlying discrimination claim is unsuccessful.
Government Code Section 12965 - Administrative Prerequisite
Before filing a civil action, an employee must file a verified complaint with CRD within 3 years and obtain a Right to Sue letter. The lawsuit must be filed within 1 year of receiving the Right to Sue.
FEHA vs. Federal Law Comparison
| Feature | California FEHA | Federal (Title VII/ADA/ADEA) |
|---|---|---|
| Employer Size | 5+ employees | 15+ employees (20+ for ADEA) |
| Filing Deadline | 3 years to file with CRD | 180/300 days to file with EEOC |
| Damages Cap | No cap (private employers) | Capped based on employer size |
| Protected Classes | More expansive list | More limited |
| Disability Definition | Broader - limits major life activity | Narrower - substantially limits |
Strategic Note
I always recommend filing under FEHA rather than federal law when possible. California's broader protections, longer filing deadlines, and uncapped damages make it the stronger vehicle for discrimination claims. Dual-filing with EEOC preserves federal options while pursuing the state claim.
📝 Elements of a FEHA Discrimination Claim
To succeed on a discrimination claim under FEHA, I establish a prima facie case, then show the employer's stated reason is pretextual.
Prima Facie Elements (Disparate Treatment)
- Protected Class Membership - Employee belongs to a protected class under FEHA
- Qualified for Position - Employee was performing competently or meeting legitimate job expectations
- Adverse Employment Action - Employee suffered termination, demotion, denial of promotion, or other material harm
- Circumstances Suggesting Discrimination - Evidence connecting the adverse action to protected characteristic
Adverse Employment Actions
Termination
Firing, layoff, forced resignation, or constructive discharge
Demotion
Reduction in title, responsibility, authority, or pay grade
Compensation Reduction
Pay cuts, reduced hours, loss of commission opportunity, or benefits
Denial of Opportunity
Failure to promote, denial of training, exclusion from projects
Unfavorable Transfer
Reassignment to less desirable position, shift, or location
Discipline
Written warnings, suspension, or negative performance reviews
The McDonnell Douglas Burden-Shifting Framework
Step 1: Employee's Prima Facie Case
Employee shows: (1) protected class, (2) qualified, (3) adverse action, (4) circumstances suggesting discrimination. This creates presumption of discrimination.
Step 2: Employer's Legitimate Reason
Employer must articulate (not prove) a legitimate, non-discriminatory reason for the adverse action. Common reasons: performance, policy violation, restructuring.
Step 3: Employee Shows Pretext
Employee must prove the employer's stated reason is a pretext for discrimination - either false, not the actual reason, or insufficient to motivate the decision.
Evidence of Pretext
- Timing - Adverse action shortly after protected activity or characteristic becomes known
- Shifting explanations - Employer gives different reasons at different times
- Inconsistent treatment - Others outside protected class treated more favorably
- Deviation from policy - Employer didn't follow normal procedures
- Comments/statements - Remarks by decision-makers reflecting bias
- Statistics - Patterns showing disparate treatment of protected group
- Inadequate investigation - Employer acted without proper review
Circumstantial Evidence is Sufficient
Direct evidence of discrimination (e.g., "I'm firing you because you're too old") is rare. Most cases rely on circumstantial evidence. California courts recognize that discrimination can be proven through inference from all relevant facts and circumstances.
💰 Damages and Penalties
FEHA provides comprehensive remedies for discrimination victims. Unlike federal law, California has no cap on damages against private employers.
| Damage Type | Description | Typical Range |
|---|---|---|
| Back Pay | Lost wages and benefits from adverse action to judgment/settlement | $20,000 - $500,000+ |
| Front Pay | Future lost earnings when reinstatement isn't feasible | 1-5 years wages |
| Emotional Distress | Mental anguish, humiliation, anxiety, depression, loss of enjoyment | $50,000 - $500,000+ |
| Punitive Damages | To punish malicious, fraudulent, or oppressive conduct | Often 1-3x compensatory |
| Attorney Fees | Prevailing plaintiff recovers reasonable fees | $50,000 - $300,000+ |
| Interest | Prejudgment interest on economic damages | 10% per year (CA rate) |
📊 Sample Damages Calculation
Example: Age Discrimination Termination (55-year-old manager, $120,000 salary)
My Fee Structure
I draft demand letters at $240/hour or $450 flat fee for standard discrimination demand letters. This includes the demand letter, one round of revisions, and brief strategic consultation. Complex cases involving multiple claims or extensive documentation may require additional time.
Punitive Damages Require Malice, Fraud, or Oppression
To recover punitive damages under Civil Code 3294, I must show the employer acted with:
- Malice - Intent to injure or despicable conduct with willful disregard
- Oppression - Despicable conduct subjecting employee to cruel treatment
- Fraud - Intentional misrepresentation or concealment
Corporate employer liability requires that an officer, director, or managing agent authorized or ratified the conduct.
📂 Evidence Checklist
Gather these documents and evidence before sending your demand letter. Strong documentation significantly increases settlement value.
📄 Employment Documents
- ✓ Offer letter, employment contract, job description
- ✓ Employee handbook and anti-discrimination policy
- ✓ All performance reviews and evaluations
- ✓ Pay stubs, W-2s, benefits statements
- ✓ Termination letter or separation documents
📩 Discrimination Evidence
- ✓ Emails, texts, or messages showing bias or discriminatory comments
- ✓ Written notes of discriminatory statements (dates, witnesses)
- ✓ Evidence of how comparators were treated differently
- ✓ Timeline of events showing suspicious timing
📣 Complaints and Reports
- ✓ Written HR complaints and employer responses
- ✓ Investigation reports and findings
- ✓ Requests for accommodation and employer responses
- ✓ CRD/DFEH or EEOC complaint (if filed)
💊 Damages Evidence
- ✓ Medical records, therapy records, prescriptions
- ✓ Documentation of job search efforts
- ✓ Evidence of unemployment benefits received
- ✓ Journal documenting emotional impact
Preserve Evidence Immediately
Forward work emails to personal email before losing access. Screenshot messages. Keep originals in a safe place. If you believe employer may destroy evidence, consider sending a litigation hold letter. Spoliation of evidence can result in adverse inference at trial.
📝 Sample Language
Copy and customize these paragraphs for your discrimination demand letter.
🚀 Next Steps
After sending your demand letter, follow this timeline and process.
Expected Timeline
Days 1-7
Employer receives and reviews letter with legal counsel
Days 7-21
Internal assessment, investigation, response preparation
Days 21-30
Response with settlement offer, counteroffer, or denial
CRD Filing Process
-
File Complaint with CRD
File online at calcivilrights.ca.gov within 3 years of the discriminatory act. You can request an immediate Right to Sue letter or allow CRD to investigate.
-
Receive Right to Sue Letter
If you request immediate Right to Sue, CRD will issue it promptly. This satisfies the administrative prerequisite for filing suit.
-
File Lawsuit Within 1 Year
You must file your civil lawsuit in Superior Court within 1 year of receiving the Right to Sue letter.
Critical Deadline
The 3-year deadline to file with CRD is an absolute bar. If you miss this deadline, your FEHA claim is lost forever. For continuing violations, the deadline runs from the last discriminatory act. I recommend filing early to preserve all options.
If Settlement Fails
-
Consult an Employment Attorney
Many employment attorneys handle discrimination cases on contingency (no fee unless you win). FEHA fee-shifting makes these cases attractive to plaintiff attorneys.
-
File CRD Complaint
If not already filed, file immediately to preserve your rights and obtain Right to Sue.
-
Litigation
Discrimination cases are filed in Superior Court. Discovery often reveals additional evidence, and many cases settle during litigation.
Ready to Move Forward?
I draft professional discrimination demand letters that maximize settlement value. Get started with a consultation to evaluate your case.
California Resources
- Civil Rights Department (CRD): calcivilrights.ca.gov - File complaints, resources
- CRD Hotline: 1-800-884-1684 (voice) / 1-800-700-2320 (TTY)
- EEOC: eeoc.gov - Federal dual-filing option
- State Bar Lawyer Referral: calbar.ca.gov
- Legal Aid at Work: legalaidatwork.org