The California Fair Employment and Housing Act (FEHA), declares that it is each person’s civil right to have “the opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.” These enumerated bases often are referred to as “protected bases” or “protected classes or classifications.”
Below are frequently asked questions about the state laws prohibiting employment discrimination in California and how to redress violations of these laws.
- Which employers are covered by California’s employment discrimination laws?
- How is employment discrimination established?
- What can I do if I think I am being discriminated against on a protected basis,?
- Do I need to do anything before filing a lawsuit in court?
- Are there any deadlines for filing a DFEH complaint?
- If I already left my job, can I still take action against my former employer for unlawful discrimination?
- Are there other protections for employees in addition to the discrimination provisions of FEHA,?
Which employers are covered by California’s employment discrimination laws?
Employers with five or more employees are prohibiting from discriminating against people on the bases enumerated in the FEHA. For harassment complaints, an employer is covered if it has at least one employee. However, religious entities generally are not employers within the meaning of the state law.
How is employment discrimination established?
Discrimination is established by showing that an employer either treats an employee differently based on an employee’s protected classification, or maintains a practice that has an adverse impact on a protected class. The first is known as “disparate treatment” or “intentional discrimination,” and the second is known as “adverse impact.” Discrimination may sometimes be proved by anecdotal evidence of intentional discrimination, for example when a supervisor is caught making a blatantly discriminatory statement about someone he has just fired. But usually discrimination is more subtle and is proved by showing examples of an employer treating some employees worse than other similarly situated employees due to one of the “protected bases.” “Adverse impact” comes into play if your employer has an employment practice that seems neutral on its face but actually impacts one protected class more negatively than others. Be aware that not all discrimination is illegal. Your employer’s actions may be grossly unfair, but that doesn’t necessarily mean they are illegal. To be actionable, there must be a causal connection between the adverse employment action and one of the “protected bases” listed in the law.
What can I do if I think I am being discriminated against on a protected basis?
If you are still employed and your employer has a internal complaint procedure, you might first try to rectify the problem that way. If your employer has an employee handbook, it may include a specific complaint procedure. If following internal procedures doesn’t help, or you are no longer working for the employer, we suggest you call one of our offices for a consultation.
Do I need to do anything before filing a lawsuit in court?
Yes. Before going to court on a claim alleging employment discrimination or harassment, the law requires that you first file an administrative complaint with the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC). Because a complaint filed with one agency is usually automatically cross-filed with the other, it often makes no difference which agency you file with. But sexual orientation, for example, is not covered by the federal law, so you must file with DFEH. Under state law, you have one year from the date you receive a Right-to-Sue Notice from DFEH to file a lawsuit in court.
Are there any deadlines for filing a DFEH complaint?
As with all legal claims, a statute of limitations applies. For claims of discrimination, you must file a complaint with DFEH within one year of the date the discrimination occurred. If you file with EEOC, the deadline is 300 days. When the statute of limitations begins to run is not always clear. For example, if you were fired because your employer wanted to hire someone younger, the deadline might run from the date you learned that a younger employee had been hired, or from when you were informed that your boss made an “off the record” comment at a staff meeting admitting he let you go because you were too old. If you were denied accommodation, the one year statute likely would run from the date you received notice of the denial. Sometimes, it isn’t clear when discrimination occurred, especially if it is of a continuing nature. If even one incident among a series of discriminatory acts occurred during the limitations period, you may be able to recover for the earlier acts because the employer’s conduct is considered a “continuing violation.”
If I already left my job, can I still take action against my former employer for unlawful discrimination?
It depends on whether the statute of limitations has run, as explained above. Assuming that your claim isn’t barred by the statute of limitations, the fact that you quit your job will not prevent you from taking legal action against your employer. If it is shown that an employee quit a job because of unlawful discrimination, the employee not considered to have voluntarily resigned. Instead, the separation is considered a “constructive discharge,” for which relief can be sought.
Are there other protections for employees in addition to the discrimination provisions of FEHA,?
Family leave: The California Family Rights Act (CFRA), which is similar to the more widely-known federal law, FMLA, makes it unlawful for an employer to deny you an unpaid leave up to 12 weeks in length because of the arrival of a newborn, adopted or foster child, your own serious medical condition, or because you need to take care of a child, spouse or parent who has a serious medical condition. The CFRA also gives you the right to return to your same or comparable position at the end of the leave.
Pregnancy Disability leave: FEHA prohibits an employer from denying a female employee up to four month’s leave if she is disabled because of a pregnancy-related condition. Both this law and CFRA operate together and mean that employees who become pregnant may be entitled to leave for up to seven months.
Reasonable Accommodation for Disability: If you are having trouble performing your job due to a physical or mental disability, FEHA requires your employer to engage in an interactive process with you and/or your representative to determine if there are any reasonable accommodations that will enable you to perform the essential functions of your job. It is unlawful for your employer to refuse to engage in an interactive process or to do so in less than good faith. It also is unlawful for your employer to refuse to provide an effective reasonable accommodation if you have requested one. However, an employer is not required to provide an accommodation that would create an undue hardship, and an employer is not required to give you the exact accommodation you request if another reasonable accommodation is also available.