Workplace discrimination is a surprisingly pervasive issue in California and all across the U.S. It impacts employees at all levels, from entry-level positions to senior management.
Most people know that discrimination is illegal. However, employees may not fully understand their rights. Employers may not fully recognize their responsibilities.
California’s courts take discrimination very seriously. If your employer discriminates against you, you could be entitled to various forms of compensation.
Before we discuss the specifics, it’s crucial to understand what exactly constitutes discrimination under California law.
California has some of the most comprehensive anti-discrimination laws in the country. The Fair Employment and Housing Act (FEHA) is probably the most important example.
We’ll explore FEHA in detail, outlining the different protected classes that are recognized in California. We’ll also explain what types of employment actions count as discrimination.
Once you understand how the law defines discrimination, you can take stronger action to protect your rights. We’ll conclude with concrete steps to take if you believe your employer is discriminating against you.
California’s Fair Employment and Housing Act (FEHA): Who is Protected in the Workplace
California’s main law against discrimination is the Fair Employment and Housing Act (FEHA). FEHA prohibits illegal discrimination in several key areas, including the workplace. It also covers housing and public accommodations.
FEHA provides broad protections for California workers, but federal anti-discrimination laws created the initial foundation. We’ll briefly review federal laws next before exploring FEHA’s specifics.
Which Federal Laws Prohibit Workplace Discrimination?
Anti-discrimination laws stem from the Civil Rights movement of the 1960s, which led to the landmark Civil Rights Act of 1964. That Act laid the foundation for banning discrimination in many areas of public life. Title VII of the Civil Rights Act specifically tackles workplace discrimination.
These laws legally protect certain groups of people. Individuals in these groups share specific “protected characteristics.” Possessing such a trait makes you part of a legally protected class.
Title VII initially prohibited employment discrimination based on:
Later federal laws like the Age Discrimination in Employment Act, Americans with Disabilities Act, Pregnancy Disability Act, and Genetic Information Nondiscrimination Act expanded these core protections. Discrimination based on these characteristics is also illegal under federal law:
What does it mean for discrimination to be “prohibited”? It means employers must generally treat individuals equally. They can’t base job decisions on protected characteristics. This applies to hiring, firing, pay, promotions, or other terms and conditions of employment. Taking negative (“adverse”) actions based on these traits is illegal.
Federal anti-discrimination laws establish a baseline. It’s the minimum standard required across the country. But individual states can enact their own laws. State laws often provide stronger or broader protections.
California is a prime example of this. Its Fair Employment and Housing Act (FEHA) provides significantly broader coverage than federal law. It protects more characteristics and sometimes offers different or additional remedies. Let’s explore those protections.
Which Protected Classes Are Recognized Under FEHA?
California’s main anti-discrimination law is the Fair Employment and Housing Act (FEHA). FEHA includes the protections found in federal law but goes further, protecting additional groups of people.
FEHA prohibits discrimination against protected employees or job applicants. This applies to hiring, firing, promotions, pay, and all other job terms or conditions.
Under FEHA, employers can’t discriminate based on any of these protected characteristics:
This comprehensive list means broad protection against workplace discrimination in California. It covers job applicants and current employees across nearly all aspects of employment.
Remember local laws too. Some California cities or counties have their own anti-discrimination ordinances. These local laws can sometimes offer even stronger or broader protections than state law.3
Generally, FEHA’s core discrimination rules apply to employers with 5 or more employees. However, harassment based on any protected status is illegal for all California employers, regardless of size.4
What if you face discrimination (like being fired due to race, gender, disability, or age) at a company with fewer than five employees? While FEHA’s direct discrimination statute might not apply, you likely still have strong legal protection.
California has a deeply rooted and fundamental public policy forbidding workplace discrimination based on protected characteristics. Taking negative job actions because of an employee’s protected status violates this public policy.
An example is wrongful termination in violation of public policy, also known as a Tameny claim. See our Guide to Wrongful Termination in California for more details.
Unsure whether your situation might qualify as discrimination? We’re here to help. Contact using the button above (on desktop) or below (on mobile).
What Makes an Employer Action Discriminatory?
Any employment practice treating people unfairly based on a protected characteristic is discrimination. It’s illegal under California law.
Discriminatory practices can occur in many work situations. These include decisions about:
Discrimination isn’t always obvious or intentional. It can be subtle. It might affect one employee or many. Regardless of how it happens, it’s unlawful.
Employer awareness doesn’t always determine liability. An employer can be held responsible even if they didn’t intend to discriminate.
A company policy might seem neutral on its face. But it could still be illegal if it disproportionately harms people in a protected class. This is known as disparate impact.
Employers can be held responsible for discrimination by their employees too. The rules regarding managers and supervisors are especially important.
When a supervisor takes a discriminatory employment action, the employer company is generally liable for that action. This liability occurs because the supervisor is acting as the employer’s agent. Their decisions made within their job authority are considered actions by the company itself.
Therefore, the company is responsible, even if higher management didn’t know about the specific decision beforehand. Subsequent corrective action against the supervisor doesn’t erase the company’s liability.
What if a disability affects job duties? An employer can’t automatically assume termination is justified. They must first engage in the good faith interactive process.
This means discussing potential reasonable accommodations with the employee. Failing to participate properly in this process can itself be grounds for a discrimination claim.
What Employer Actions Qualify as Discrimination in California?
California law forbids discrimination in nearly all aspects of employment. Key examples of illegal discriminatory actions include:
Discrimination in Job Advertisements
Ads can’t discourage applications based on protected traits. They also can’t state biased preferences (e.g., targeting “recent grads” could be age discrimination).
Discrimination in Job Recruitment, Application & Hiring
Employers can’t favor or reject candidates based on protected characteristics. This applies throughout the hiring process, including sourcing, screening, interviewing, and final selection.
Discrimination in Job Referrals
Referrals by employers, agencies, or unions must be based on qualifications, not protected traits.
Discrimination in Job Assignments & Promotions
Decisions about who gets which tasks, projects, or promotions can’t be based on protected status. Segregating employees based on protected characteristics is also illegal discrimination. Examples include unfairly keeping certain groups away from customer/client interactions or executive visibility.
Discrimination in Pay And Benefits
Paying employees differently, giving different groups different earning opportunities, or offering different benefits based on protected traits is illegal. This is known as wage discrimination. It includes salary, overtime, bonuses, commissions, insurance benefits, retirement plans, and paid time off.
Discrimination in Discipline & Discharge
Employers can’t discipline or fire employees based on protected characteristics. Termination for illegal discriminatory reasons is wrongful termination. See our Guide to Wrongful Termination in California.
Discrimination in Employment References
It’s illegal to give a negative/false reference or refuse to give one because of an employee’s protected status.
Disability Discrimination and the Requirement for Reasonable Accommodation
Employers generally must provide reasonable accommodations for known disabilities, religious practices, and pregnancy-related conditions. This requires participating in a timely, good faith interactive process with the employee. Refusing to accommodate or engage in this process (absent undue hardship) can be discrimination.
Here are examples of situations where an employer must engage in an interactive process:
Pregnancy Discrimination and the Requirement for Reasonable Accommodation
Employers must also provide reasonable accommodations for pregnancy or pregnancy-related conditions, including childbirth. Employers can’t take adverse actions against an employee or job applicant because of conditions related to pregnancy or childbirth.
Religious Discrimination and the Requirement for Reasonable Accommodation
Employers must make reasonable accommodations for employees’ religious beliefs and practices, absent undue hardship.
Potential examples include flexible scheduling, job reassignments, modifications to workplace policies or practices, or offering a space for religious observances.
Discrimination in Training & Apprenticeship Programs
Employers can’t deny access to training or apprenticeship programs based on an individual’s protected characteristics.
Discriminatory Harassment
Creating a hostile work environment based on protected characteristics is illegal harassment (a form of discrimination). We’ve covered harassment in our How to Deal With Workplace Harassment guide.
Retaliation for reporting harassment or discrimination is also illegal. See our Guide to Employer Retaliation in California for more detail.
Discrimination in Pre-Employment Inquiries
Employers usually can’t ask applicants about protected status before making a job offer. Questions about disability or required medical exams are strictly limited even post-offer. They must be job-related and consistent with business necessity.
Discriminatory Dress Codes
Workplace dress codes must apply fairly. These codes can’t discriminate based on protected traits (e.g., targeting certain ethnic dress). Employers must reasonably accommodate religious dress and grooming practices, unless it would cause undue hardship.
Constructive Discharge
Constructive discharge occurs when a work environment becomes so intolerable that a reasonable person would be forced to quit. This can be treated legally as a discriminatory firing.
Discrimination in the Terms & Conditions Of Employment
FEHA’s protection is broad. It prohibits discrimination impacting any term or condition of employment. This includes things like training access, leave approval, work schedules, or workstation assignments.
Proving Workplace Discrimination in California
Proving discrimination isn’t always straightforward.
Sometimes the evidence is obvious. Think discriminatory comments in emails or biased written policies.
Often, however, it’s more subtle. The circumstances surrounding an action might suggest discrimination. Example: You have a strong performance record but get fired shortly after revealing a disability and requesting accommodation.
Employers rarely admit to illegal motives. They might invent a false reason for their actions (pretext). They might offer no reason at all. But even with a stated reason, you can potentially prove discrimination was the true cause.
How do you legally establish a discrimination claim? You start by showing a prima facie case.
This means presenting basic facts suggesting discrimination was likely a factor. The specific criteria differ depending on the nature of the case.
If you succeed, the legal burden shifts. Your employer must now provide a legitimate, non-discriminatory reason for the adverse action.
What happens after the employer states a reason? If they can’t offer a valid, non-discriminatory reason, you may prevail. But even if they do offer a reason, you can still win by proving that reason is likely pretext.
Showing the employer’s stated reason is probably a cover-up for discrimination can establish liability. Evidence of disparate treatment or inconsistent application of rules often helps show pretext.
Sometimes cases involve mixed-motives. Discrimination might be one reason among potentially legitimate ones.
These cases can be complex. Your employer may succeed if they prove they would have made the same decision (e.g., termination) even without the discriminatory motive. It’s important to consult with an employment lawyer for greater clarity on your specific situation.
What To Do If Your California Employer Discriminates Against You
If you believe you’re facing workplace discrimination, it’s important to take action to protect your rights. Here are some steps you can take.
Start by carefully documenting everything and gathering potential evidence. Key information includes:
Think you might be fired due to potential discrimination?
Termination often means immediate loss of work email and system access. Try to preserve evidence before being terminated if you suspect it’s coming. In general, start keeping detailed records as soon as you suspect discrimination.
Even without perfect or complete records, employers must preserve potential evidence. You likely still have legal options. An experienced attorney can often help investigate and build your case using available information.
Many lawyers offer a free initial consultation. This allows you to discuss your situation confidentially. There’s typically no obligation to hire the firm afterward. It’s primarily a way for you to get informed legal advice and plan your next steps.
If you’re considering working with an attorney, ask if they’ll work on contingency. This means they only get paid if you win or settle your case.
Be aware that strict legal deadlines apply to discrimination claims. These are called statutes of limitations.
For claims under FEHA, you generally must file a complaint first with the California Civil Rights Department (CRD). An attorney can help. The deadline is typically 3 years from the date the discrimination occurred or when you reasonably discovered it, though very limited filing extensions are sometimes possible.
The CRD might investigate or offer mediation services. You can also request a “right-to-sue” notice from the CRD. Once it’s issued, you usually have 1 year to file a lawsuit in civil court.
How far back can a claim reach? The 3-year CRD filing deadline generally applies to discriminatory acts occurring within 3 years before you file. Sometimes, related older acts might be considered too (under the continuing violation doctrine), but this is complex and requires legal analysis.
There’s good news for government employees filing FEHA claims: you don’t need to file a separate claim under the Government Tort Claims Act first, unlike most actions against public employers. You can file directly with the CRD.
But be careful. If you have other, non-FEHA legal claims against a public employer, those claims might still require following the Government Tort Claims Act. Those deadlines can be much shorter (sometimes 6 months or 1 year). Consulting a lawyer is essential for government employees considering legal action.
Damages and Compensation for Victims of Workplace Discrimination in California
Have you experienced workplace discrimination in California? If so, you may be entitled to various forms of compensation. California’s courts aim for fair outcomes for those impacted by discrimination. This includes compensating for both financial and emotional harm suffered.
Here are damages commonly recovered in California discrimination cases:
Sometimes, punitive damages might also be awarded. These damages aren’t primarily to compensate you. They are intended to punish the employer for particularly egregious conduct. They also aim to deter future discrimination by that employer and others.
Punitive damages require showing the employer acted with malice, oppression, or fraud. It’s a high legal standard. A key point about California’s FEHA: it generally doesn’t place caps on punitive damage amounts, unlike some federal laws.
We’re here to answer your questions about any aspect of workplace discrimination. If you’re facing related issues, schedule a free consultation using the button above (on desktop) or below (on mobile).
