Discrimination occurs when an employee or job applicant receives less favorable treatment because of a specific characteristic they have. In many cases, employers in California are prohibited by law from engaging in discrimination.1
Discrimination can take many forms. Common examples include:
- Refusing to hire, refusing to promote, demoting, or firing workers because of their protected characteristic or their membership in a protected group.
- Adopting a company policy that disproportionately affects workers who have a certain protected characteristic.
- Refusing to accommodate the religious or disability-related needs of certain employees.
- Permitting employees to be frequently and severely harassed in the workplace.
This article explores these concepts further and explains discrimination under California state and federal laws.
- 1 California’s Legal Framework
- 2 The Two Main Types of Discrimination Cases
- 3 Which Employers Can Be Held Liable?
- 4 Which Workers Are Protected by Anti-Discrimination Laws?
- 5 Which Characteristics Receive Protection?
- 6 Other Types of Unlawful Discrimination
- 7 Consequences of Unlawful Discrimination
- 8 Filing a Discrimination Claim
- 9 Hiring a Lawyer
California’s Legal Framework
There are a variety of laws—both on the state and federal level—that prohibit discrimination in the workplace. Their applicability will usually depend on the kind of discrimination being alleged.
Purpose of Workplace Anti-Discrimination Laws
Anti-discrimination laws are created and enforced for the betterment of society. Both federal and state governments have declared that seeking, obtaining, and holding employment without unlawful discrimination is a civil right.2
The State of California considers the protection against unlawful workplace discrimination to be a matter of public policy.3 Anti-discrimination laws maintain social peace and harmony, keep employers and employees from suffering adverse effects, and help the government progress by being more inclusive so as to attract top talent, from all walks of life.4
California’s Law Protecting Against Discrimination
California has one of the most comprehensive bodies of law protecting classes of individuals from employment discrimination. The Fair Employment and Housing Act (known as “FEHA”) protects California employees from discrimination based on many different factors, including race, religion, gender, disability, sexual orientation, veteran status, and age (if the employee is over 40).5
FEHA’s protections apply generally to employers with five or more employees.6 It is enforced by the Department of Fair Employment and Housing (known as the “DFEH”).7 The DFEH acts as a first resort for many aggrieved employees by providing a process for filing complaints.8
Federal Laws Protecting Against Discrimination
On the federal level, there are several laws that prohibit workplace discrimination. But the number of protected groups under federal law is much narrower than those provided by California law.
- The Civil Rights Act of 1964 prohibits employment discrimination based on race, sex, color, religion, and nationality.9
- The Americans with Disabilities Act specifically protects those with physical and mental disabilities from unfair discrimination.10
- The Equal Pay Act of 1963 prohibits employers from having different rates of pay between the genders for the same work in many situations.11
- The Age Discrimination Act protects against age-related discrimination against older workers.12
- The Genetic Information Nondiscrimination Act of 2008 prohibits employers from using the genetic information of current or prospective employees when making hiring, firing, and other employment decisions.13
Currently, there are no federal laws protecting workers from discrimination based on sexual orientation or gender identity.
The U.S. Equal Employment Opportunity Commission (called the “EEOC”) is a federal agency responsible for enforcing and administering many federal laws governing workplace discrimination.14
Determining Which One Applies
In general, federal anti-discrimination laws do not prevent state or local governments from adopting laws that provide employees with equal or greater protections.15 This means that California employers are required to comply with the law that creates the highest standards.
As such, employees may be protected by both state and federal law in their situation. However, there are a few considerations to keep in mind when deciding between filing a claim in state or federal court.
- Type of discrimination. If the type of discrimination is only covered under state law, then the discrimination claim can only be heard in state court.
- Employer size. California law applies to businesses that employ five or more employees.16 This is much smaller than most federal laws, which usually only cover larger businesses.17
- Location. Location also matters. State courts have jurisdiction on all claims that arise from an occurrence that happened in California. However, all claims on federal property, such as military bases, must be brought into federal court.18
It may seem that filing a lawsuit in federal court is more impressive or intimidating to your opponent. However, as a general practice rule, state courts are friendlier to plaintiffs. Juries in federal civil trials much reach a unanimous verdict.19 But in California state courts, only three-fourths of the jury must agree.20
This article will focus on the rules applicable under FEHA because FEHA provides greater protections to most California employees than does federal law. Unless federal law is specifically mentioned, the law being discussed is FEHA.
The Two Main Types of Discrimination Cases
As mentioned above, discrimination occurs when an employee or job applicant receives less favorable treatment because of a specific characteristic they have, but not all types of discrimination are legally prohibited.
Discrimination claims generally fall into two broad categories:
- Disparate treatment discrimination, and
- Disparate impact discrimination.21
Each of these two types of discrimination are described below.
Disparate Treatment Discrimination
Disparate treatment discrimination happens when an employee is specifically targeted or singled out because of their protected characteristic. In these kinds of cases, the employer’s actions must be motivated by a discriminatory intent.22
Disparate treatment might happen when the employer demotes, refuses to hire, refuses to promote, harasses, or takes some other negative action against the specific employee. Disparate treatment cases represent the most common type of discrimination that employees face.
In general, employees have the burden of proving that they were the victim of discrimination.23 To do this, the employee must present evidence to show that several facts are true. These facts are called “elements” of the claim.
In cases involving disparate treatment discrimination, the elements are as follows:
- The employer was an entity covered by applicable anti-discrimination laws;
- The employer took a negative employment action against the worker, like refusing to hire them, refusing to promote them, or firing them;
- The employee or job applicant’s protected status—for example, their race, religion, gender, or sexual orientation—was a motivating reason for the employer’s negative employment action; and
- The employee suffered some kind of harm because of the employer’s negative employment action.24
If the worker cannot prove one or more of these elements, they probably won’t be able to successfully pursue an action against their employer for disparate treatment discrimination.
Disparate Impact Discrimination
Disparate impact discrimination happens when an employer adopts a policy that applies to all employees, but the policy has a more negative impact on those with a certain protected characteristic than those without it.25
Put another way, disparate impact claims arise when employers adopt policies that are “facially neutral,” in that they don’t appear to discriminate against a protected characteristic. The policy might be unlawful, however, if it nevertheless has a disproportionately adverse impact on employees with a protected characteristic.
In a disparate impact case, the employer can be held liable even if the employer had no discriminatory intent whatsoever.26
To encourage employees to get more exercise, a business owner rewards his employees with five minutes off their shift whenever they take the stairs instead of the elevator. While this policy sounds great, not everyone can participate. Employees who suffer from disabilities might be disparately impacted.
As mentioned above, to successfully prove that an employer has engaged in disparate impact discrimination, the employee has the burden of showing that several facts are true.27 These are called “elements” of the claim.
In cases involving disparate treatment discrimination, the elements are as follows:
- The employer was an entity covered by applicable anti-discrimination laws;
- The employer adopted an employment practice that had a disproportionately-adverse effect on a specific protected group—like members of a specific race, religion, gender, or sexual orientation;
- The employee or job applicant was a member of that specific protected group; and
- The employee or job applicant was harmed by the employment practice.28
If the worker cannot prove one or more of these elements, they probably won’t be able to successfully pursue an action against their employer for disparate impact discrimination.
Which Employers Can Be Held Liable?
California’s anti-discrimination laws apply to several categories of employers.29 Those include:
- People or businesses that regularly employ five or more persons,
- People or businesses that act as an agent of a covered employer, and
- State or local governmental entities.30
There are important exceptions to each of these categories. For example, California’s ban on harassment applies to employers of any size—even those that employ fewer than five people.31
Several other caveats are explained below.
Employers with Five or More People
Although California law seeks to eliminate discrimination from the workplace, it does not apply to very small employers.32
Employees of businesses that employ fewer than five people will have little recourse for discriminatory practices.33 California law gives each of these phrases a specific meaning.
- Employer A employer for these purposes includes individuals as well as different types of businesses, corporations, associations, and other legal entities that have employees.34
- “Regularly Employs.” An employer regularly employs five or more individuals when, during either of the most recent two calendar years, there was a period of 20 consecutive weeks where they employed five or more people during each working day of the week.35
- “Five or More.” An employer employs five or more individuals when five or more people are under the direction and control of an employer under any employment contract, appointment, or apprenticeship.36 The employment contract can be express or implied, oral or written.37
Federal Law Distinguished
Under the Americans with Disabilities Act, a person is an employer under federal law only if they have 15 or more employees.40
Certain religious nonprofit associations and corporations are not considered “employers” for these purposes. Those religious employers are thus not subject to many of California’s anti-discrimination laws.41
But, if the religious organization has a subdivision that is for-profit (meaning, it is subject to state or federal income taxes), that subdivision would not be exempt from California’s anti-discrimination laws.42
Likewise, religious nonprofits that provide certain educational or health care services can sometimes be held liable as “employers” under California law.43
This exception does not apply to non-religious entities, even if they are nonprofit. So, most nonprofit corporations and nonprofit associations are considered “employers” under California law.44
Agents of Covered Employers
As such, agents of an employer can be held responsible for their acts of discrimination or retaliation.47 And, in many cases, employers are responsible for what their agents do while representing the employer, including any discriminatory acts.
To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them.48 If the employer controls the way a person or business accomplishes its tasks, a court might find them to be an agent of the employer.49
Of note, a franchisor is usually not considered an employer or an agent under California law. But a franchisor can be held liable for unlawful activities if they exercise control over the day-to-day operations of the franchised location.50
Supervisors Usually Not Personally Liable
Many supervisors and coworkers are technically “agents” of an employer. But, in general, employees cannot file a lawsuit directly against their supervisors or coworkers for discrimination or retaliation.51
This isn’t always a bad thing, because supervisors often do not have enough assets to remedy damages from discrimination the way an employing company may. However, a supervisor may be liable for civil or criminal harassment or other legal violations because harassment is personal and unrelated to the job or job duties.52
It is also important to remember that California law still protects employees who have been victimized by coworkers and supervisors. Employers can often be held liable for the actions of their employees.53 So, even though the employee cannot sue the supervisors personally for their discriminatory and retaliatory conduct, they can often still sue their employer.
State and Local Governments
The State of California is an “employer” for the purposes of California’s anti-discrimination laws. This means that people who work for the state can sue for any unlawful discrimination or retaliation they suffer.54
Along these same lines, the word “employer” includes any subdivisions of the State of California, county governments, city governments, local agencies, and special districts.55
In general, coworkers do not have authority to take adverse employment actions against employees. Otherwise, they would be considered supervisors. So, lawsuits against coworkers are generally limited to claims of harassment.
A coworker can be held personally liable for harassing an employee on the basis of their protected characteristic.56 Similarly, the employer can be held liable if:
- The employer or any supervisors knew (or should have known) about the coworker’s harassing conduct, and
- The employer failed to take immediate and appropriate action to correct the harassment.57
This is essentially a “negligence” theory of liability. Meaning, an employer will be liable if it negligently permits an employee with a protected characteristic to be harassed by coworkers.58
Which Workers Are Protected by Anti-Discrimination Laws?
The California Fair Employment and Housing Act (“FEHA”) states that it is unlawful to discriminate against “any person” because of their protected characteristic.59 In reality though, the protections of this part of the law are limited to the employment context.60 The result is that only certain groups of workers can benefit from California’s legal protections.
For the most part, a person must be an employee to be protected against discrimination under California law—at least in the context we’re talking about in this article.61 An employee is someone who is both:
- A person who works under the direction and control of the employer, and
- A person whom the employer has agreed to hire.62
The employer’s agreement to hire the employee does not necessarily need to be made in writing (although that often helps). It can be made orally, or even just implied by the actions of the employer and worker.63
If the employer has not agreed to hire the person, they might still be considered an “employee” if they are working under an appointment or as an apprentice.64
California law expressly extends its anti-discrimination protections to applicants for employment positions.65 Specifically, California makes it unlawful for an employer to refuse to hire a person or refuse to select the person for training that might lead to employment based on their protected characteristic (like the color of the skin, their gender, or their sexual orientation).66
An applicant is someone who files a written application with an employer. If the employer does not provide a written application form, then a person is an applicant if they express a specific desire to the employer to be considered for employment.67
In some cases, a person can be considered an “applicant” even if they haven’t actually applied for a job. If they were deterred from applying for the position because of the employer’s discriminatory practices, they may still have rights under California law.68
Importantly, California’s protections do not extend to under-qualified applicants. An employer has the right to reject an applicant if they are less qualified for a position than the person ultimately selected.69
Independent Contractors (Harassment Only)
Under California law, an independent contractor is someone who performs a specific service for a specific price.70 The person or business paying the independent contractor can control the result they want, but generally has no authority to control the way the independent contractor achieves the result.71
Independent contractors are not employees,72 since they don’t work under the direct control and supervision of the employer.73 They therefore are not protected from workplace discrimination. They are, however, protected against harassment under FEHA.74
Immediate Family Members
Individuals employed by their parents, spouse, or child are not protected by California’s anti-discrimination laws.75
Harassment of spouses and family members, however, may constitute criminal domestic violence.
Temporary Employees (Temps)
Temporary employees (sometimes called temps) are generally protected by California’s anti-discrimination and anti-harassment laws.76
If the temp was hired by an agency and the agency assigned them to work for a business, the temp will sometimes be an employee of both the agency and business. Meaning, they can hold both the temp agency and the business responsible for unlawful discrimination.77
A temp does not have to be compensated directly by a temp agency or a business to be considered an employee. Rather, courts look at the amount of control the temp agency or business exercises over the worker.78
Unpaid interns work for an employer in exchange for college or school credit or professional experience. Unpaid interns are generally not considered employees because the employer has not agreed to hire them.79
Nevertheless, as of 2015, California law protects unpaid interns from discrimination and harassment to the same extent as employees.80 Unpaid interns represent one of the few positions in which a worker will have the right to be free from discrimination despite not being an employee.
A volunteer is a person who offers labor without pay and without expectation of pay. Volunteers aren’t employees, and therefore not protected from discrimination under California’s anti-discrimination laws.81 Volunteers are, however, protected from harassment.82
Certain Nonprofit Employees
Employees who work for a non-profit sheltered workshop or a rehabilitation facility are sometimes not considered “employees” under California’s anti-discrimination laws.83 To qualify under this exemption, the employee must be employed under a special license issued by the Division of Labor Standards Enforcement.84 These places are specifically reserved for the disabled.
Despite this exemption, the employee might have a right to sue the employer if the employer engages in discriminatory or harassing activity that is not necessary to serve employees with disabilities.85
Which Characteristics Receive Protection?
Age discrimination occurs when an employee or job applicant over the age of 40 receives less favorable treatment because of their age.86 Both state and federal law prohibit covered employers from discriminating against an employee or applicant because of his or her age, so long as the employee is over the age of 40.87
This means that covered employers may not refuse to hire older workers who are equally or more qualified than other candidates simply because of their age, nor may covered employers fire employees once they reach a certain age.
Race, Color, National Origin, or Ancestry
It is unlawful in California for employers to discriminate against employees or job applicants based on their race, the color of their skin, their national origin, or their ancestry.88 It is also unlawful for employers to discriminate on the basis of an employee’s association with members of other races, skin colors, national origins, or ancestries.89
Employees are protected even if they are members of racial groups that have not been traditionally discriminated against (like caucasian employees).90 Some people refer to these types of claims as “reverse discrimination” claims.
Of course, an employee’s ethnicity will not always be readily known by the employer. California has therefore extended its protections against discrimination to employees that are perceived to be of a certain race, color, national origin, or ancestry (or perceived to associate with these groups).91
So even if the employee isn’t actually a member of a protected class, it is still unlawful for an employer who believes them to be a member of that group to discriminate on that basis.
It is unlawful to discrimination against someone for their religious beliefs.92 Additionally, if an employee has a genuine religious belief or observance that interferes with their job duties or work schedule, the employer must try to accommodate it.93
The phrase religious belief is a broad term that includes all aspects of religious practices.94 Specifically, in can include the following:
- Religious belief: An actual religious belief or perceived belief. A belief in a god, supreme being, or a deity is not required to be considered religious, but something more than a philosophy or way of life is required.95
- Profession of religious belief: Identifying as a believer or practitioner of a particular faith.
- Outward signs of a particular religious belief of practice, including rituals, customs, and manner of dress.96
The test to determine whether a religious belief is a “genuine” one is whether it is sincerely held by the employee.97 It is usually up to the employee—not their employer or a court—to decide what is a tenet of their religious belief, what practices are necessary, or what constitutes religious observation.98
These protections, however, are sometimes limited. An employer does need not accommodate a religious belief that would keep the employee separated from other employees or the public, or if it would cause violation of another civil right.99
A religious employee states that it is a sin for him to be alone in the same room with a woman who isn’t his wife or a relative. He therefore requests that the employer separate him from female employees in the workplace. This accommodation is not reasonable because it would keep the employee separated from other employees or the public.100
Physical disabilities are the most common type of disability in the workplace. In most cases, a physical disability is any bodily condition, cosmetic disfigurement, or anatomical loss that affects one or more of the body’s major systems and limits a major life activity.101
In general, both employees and job applicants have a right to be free from discrimination on the basis of their physical disability.102
There are several ways an employee can show that they suffer from a physical disability. The most common way is to show three things:
- Physical impairment. The employee has an anatomical loss, cosmetic disfigurement, physiological disease, disorder, or condition.
- Major bodily system. The physical impairment affects at least one of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
- Limited Life Activity. The condition limits a major life activity.103
A condition limits a major life activity if it makes the achievement of that activity difficult.104 The phrase “major life activity” is treated broadly. It includes normal social activities, basic life functions (walking, eating, sleeping, etc.), and working.105
A worker can also establish that they have a physical disability by showing:
- That they have any health impairment that requires special education or related services;106
- That they have a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment;107 or
- That their employer has a mistaken belief that the worker has or had a physical disability.108
In addition to the general test described above, California law has specifically included certain conditions as being within the definition of physical disability:
- Missing limbs (whether partial or complete),
- Mobility impairments requiring the use of a wheelchair,
- Cerebral palsy, and
- Chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis, and heart and circulatory disease.109
An employee does not have a qualified disability if their condition is mild and temporary.110 Mild conditions are determined on a case-by-case basis. They include conditions that have little or no long-term effects.111 Examples include:
- The common cold,
- Seasonal or common influenza,
- Minor cuts or abrasions,
- Muscle aches,
- Non-migraine headaches, and
- minor and non-chronic gastrointestinal disorders.112
A mental disability, for these purposes, is any mental or psychological condition that limits a major life activity.113
In general, both employees and job applicants have a right to be free from discrimination due to their mental disability.114 Likewise, an employer also may not discriminate based on a perception that an employee or applicant has a mental disability, whether or not the belief is correct.115
Common examples of qualified mental disabilities include:
- Emotional illnesses,
- Mental illnesses,
- Intellectual or cognitive disability,
- Certain learning disabilities,
- Autism spectrum disorders,
- Clinical depression,
- Bipolar disorder,
- Post-traumatic stress disorder, and
- Obsessive compulsive disorder.116
Importantly, California law specifically excludes certain behavioral problems, even though many of them are arguably mental disabilities:
- Compulsive gambling,
- Substance abuse disorders resulting from the current unlawful use of drugs, and
- Certain sexual behavior disorders, like pedophilia, exhibitionism, and voyeurism.117
Notably, transsexual or transgender persons do not have an excluded sexual behavior disorder. California law protects their right to appear or dress consistently with the employee’s gender identity or gender expression.118
A medical condition is defined as any genetic characteristic associated with a disease or a health impairment related to a cancer diagnosis.119 Medical conditions are often an issue with employees who have an increased risk of future health problems.
California law protects employees with medical conditions.120 This means that even though an employee is not currently experiencing symptoms, their employer may not discriminate against them.
The existence of a medical condition that exposes the employee to an increased risk of future medical problems renders them legally “disabled” for these purposes, and entitles them to protection.
In California, employer may not collect genetic information from an employee or prospective employee to make any decisions regarding that individual’s employment.121
Genetic information may not be acquired from:
- The results of an individual’s genetic test,
- The results of the genetic tests of the individual’s family members,
- The knowledge that a genetic disease has manifested in the individual or a family member,
- Requests to undergo genetic testing or to have a family member go through genetic testing.122
The phrase genetic characteristics refers to:
- A gene, chromosome, or combination of genes known to cause a certain disease or to greatly increase the risk of it, but hasn’t manifested into actual disease,
- Inherited characteristics of a disease or disorder, or a characteristic that makes an individual more likely to develop a disease but hasn’t manifested into disease yet.123
An employer may not fire an employee whose mother has Huntington’s Disease under the assumption that the employee has inherited the disease.
An employer does not have the right to discriminate against a worker for being single, married, separated, divorced, or widowed.124 Employers are also prohibited from adopting outright bans on hiring married workers at the same place of employment.125
It is not, however, considered discriminatory to regulate married coworkers in the same department to minimize any problems that may occur.126 It is also not discriminatory to offer bigger benefits packages to those employees with more dependents, such as spouses.127
In California, an employer may not favor or discriminate against persons based on their sex.128 Sex normally refers to whether a person is biologically a male and female.
But the word “sex” in this context is broader than how it is normally used. It can include discrimination based on:
- Pregnancy or medical conditions related to pregnancy,
- Childbirth or medical conditions related to childbirth,
- Breastfeeding or medical conditions related to breastfeeding,
- Physical gender (male, female, intersexed),
- Gender identity, and
- Gender expression.129
In California, it is unlawful for an employer to discriminate against a pregnant employee on the basis of their pregnancy.130 Pregnancy discrimination by a qualified employer is always prohibited, regardless of whether the employee is disabled from the pregnancy.
In some cases, pregnant women receive protection from discrimination based on both: their pregnancy, and their pregnancy-related disability. If pregnant women are disabled by their pregnancy, they are entitled to a reasonable accommodation unless it would cause the employer an undue hardship.131
Reasonable accommodations can be important for female employees because an employer will sometimes be required to grant extended family leave.132 Additionally, a reasonable accommodation may be necessary to modify the employee’s work conditions and permit the employee to work in comfort.
To be eligible for these types of accommodations, the employee would need to be legally “disabled” by their pregnancy, meaning the employee would need to show her pregnancy has limited a major life activity.133
Gender, Gender Identity, or Gender Expression
Qualified employers are prohibited from discriminating against employees on the basis of their gender, gender identity, or gender expression.134
These terms are broad and include a person’s gender-related appearance and behavior, even if that isn’t stereotypically associated with the person’s assigned sex at birth.135 Thus, people who are transgender, genderqueer, and gender-fluid are protected against employment discrimination in California.
In California, it is unlawful for an employer to discriminate against a person for their sexual orientation.136 The phrase sexual orientation refers specifically to whether a person is heterosexual, homosexual, or bisexual.137
Employers are also prohibited from discriminating against employees for their perceived sexual orientation.138
An employer covered under the Fair Employment and Housing Act fires a male employee because he “acts gay.” That employer has engaged in unlawful sexual orientation, regardless of whether the employee is actually gay.139
Military or Veteran Status
It is illegal to discriminate against active and veteran military service members.140
California’s anti-discrimination protections apply to active military service members and veterans of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.141
Other Types of Unlawful Discrimination
As mentioned above, California’s primary anti-discrimination law is called the California Fair Employment and Housing Act (“FEHA”).142 It protects the groups of people listed above from discrimination.
But throughout California’s labor laws, there are other types of prohibited acts that might constitute unlawful discrimination. Many of which are addressed in this section.143
Failure to Accommodate a Disability
California law requires employers to make reasonable accommodations for employees with disabilities.144 This duty arises as soon as the employer knows of the disability.145 An employer does not have this duty, however, if the accommodation would cause the employer an undue hardship.146
A reasonable accommodation is an adjustment to the employee’s work environment that can enable the employee to perform the essential functions of the job.147 The type of adjustment will vary depending on the employee’s job and the nature of the disability. Whether a proposed accommodation is reasonable is a question of fact, and can be the subject of much debate.148
Common examples of accommodations for disabilities include:
- Rearranging the employee’s work space to make it accessible for people with disabilities.149
- Permitting the employee time off to see a medical professional.150
- Permitting an employee to work from home.151
- Changing the time in which the duties of the employee’s position must be completed.
- Allowing the employee to bring an assistive animal to the workplace.152
There are, of course, many other types of accommodations to which an employee may have a right. The most appropriate type of accommodation will depend on the employee’s specific situation.
If you would like to learn more about reasonable accommodations for disabilities in California, please review our article: Reasonable Accommodation Laws in the California Workplace.
Failure to Accommodate a Religious Preference
Likewise, an employer must make reasonable accommodations for employee’s religious preferences.153 Once an employee has shown that he or she sincerely believes and follows a religion, the burden is on the employer to make reasonable accommodations so the employee can observe the religion and work if requested.154
Three things must be established before there is a duty to accommodate the employee’s religious prefences:
- The employee must have a bona fide religious belief,
- The employer must be aware of that religious belief, and
- The belief must conflict with the employee’s job in some way.155
Once these elements are established, the employer must respect the employee’s religious tenets and accommodate the observance of the employee’s religious practices.156
An observant Jew cannot work on the Sabbath, so his employer does not require him to work on Saturdays and holidays. However, the Sabbath begins on Friday at sundown. In the winter, sundown begins before the employer’s business closes in the evening.
The employer might accommodate the employee’s religious practices by allowing him to start work earlier on Friday so as to get home before sundown.
As you can see, the available types of accommodations will depend on the individual employee’s religious beliefs, practices, and observances.157
However, the employer need not accommodate an employee’s religious beliefs if doing so would cause the employer to experience an “undue hardship.”158 An employer is subject to an undue hardship if the accommodation would require significant difficulty or expense.159
Employers must explore every reasonable option available before determining that no accommodation can be made.160
Failure to Accommodate a Lactation Break
A lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump). Both state and federal laws require California employers to provide lactation breaks.161
But the right to a lactation break does not apply if it would seriously disrupt the operations of the employer.162 This exception is hard to meet, however, and employers should be cautious before invoking it.
Importantly for the purposes of this article, employers are prohibited from discriminating against employees who request a lactation accommodation or who attempt to express breast milk.163
If you would like to learn more about lactation break laws in California, please review our article: Workplace Breastfeeding Laws in California, Made Easy.
All persons, regardless of their immigration status, are protected by California’s employment laws.164 That does not mean, however, that immigration-based discrimination is unlawful. It merely means that non-citizens are protected against discrimination to the same extent as United States citizens.165
In fact, employers are prohibited by law from hiring or continuing to employ undocumented immigrants.166 So, to some extent, employers are required to consider an employee’s immigration status.
The employer’s ability to investigate their employees’ legal status is limited, however. They may not request more or different documents than are required by the federal government.167 Nor may they refuse to honor immigration-related documents that reasonably appear to be genuine.168
And, if the employee is present in the United States legally, and the employer nevertheless discriminates against them on the basis of their status as an immigrant, the employer may have engaged in national origin discrimination.
It is unlawful for employers to discriminate against an employee based on their national origin.169 National origin discrimination can include discrimination against those holding the type of driver’s license that California gives to non-citizens.170
Additionally, employers are prohibited from reporting or threatening to report their employees’ citizenship or immigration status in retaliation for the employee’s exercise of an employment-related right.171
In general, it is unlawful for employers to limit or prohibit the use of any language in any workplace.172 These issues commonly arise when an employer adopts an English-only requirement in their workplace.
The purpose of rule prohibiting language discrimination is to prevent employers from adopting policies that effectively discriminate against employees based on national origin.173
As with many laws, there is an important exception to the rule prohibiting language discrimination. An employer may limit or prohibit the use of a language in the workplace if:
- The language restriction is justified by a business necessity,
- The employer has notified its employees of when the language restriction is required to be observed,
- The employer has notified its employees of the consequences of violating the language restriction, and
- There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.174
A language restriction is considered a business necessity when it is needed to ensure the safe and efficient operation of the business. The language restriction must also effectively fulfills the business purpose it is supposed to serve.175
California law prohibits employers from controlling their employees’ political activities.176 This means that an employer may not punish an employee for being a member of a specific political party. Nor may employers forbid employees from going to political rallies or becoming candidates for public office.
Employers are also prohibited from trying to coerce or influence their employees to take any sort of political action.177 And employers are prohibited from retaliating against employees who oppose such practices.178
Political discrimination can be serious. In some cases, it is criminally punishable as a misdemeanor.179 There are also fines, fees, and civil damages that can be imposed against the employer (and sometimes recovered by the employee).180
Failure to Prevent Discrimination
If an employer becomes aware that discrimination in the workplace is occurring, they have a duty to put a stop to it and to take all reasonable steps necessary to prevent it in the future.181
As mentioned above, employees have the burden of proving that they were the victim of discrimination.182 This burden extends to cases in which the employee is alleging that the employer unlawfully failed to prevent workplace discrimination.183
To meet this burden, the employee must present evidence to show that several facts are true. These facts are called “elements” of the claim. The elements of a failure-to-prevent-discrimination claim are as follows:
- The employee was subject to discrimination, harassment, or retaliation;
- The employer knew or should have known about the discrimination, harassment, or retaliation;
- The employer did nothing (or not enough) to prevent the discrimination, harassment, or retaliation from happening; and
- The employee was harmed by the discrimination, harassment, or retaliation.184
These types of claims commonly arise when an employee wants to sue their employer for the actions of other people in the workplace who may or may not be personally liable for discrimination.
The California Fair Employment and housing Act (“FEHA”) prohibits employers from harassing any employee on the basis of one of the protected characteristics listed above (e.g., race, gender, sexual orientation, disability, religion, etc.).185 This rule applies to employers, supervisors, and coworkers.186
Harassment occurs when a work environment is made to be hostile, offensive, oppressive, or intimidating.187 Harassment is unlawful when it is motivated by a protected characteristic.188 This kind of environment deprives its victim of their statutory right to work in a place free of discrimination.189
Harassment can take a variety of forms. The harassment may involve physical, oral, or written conduct that is offensive or derogatory—so long as it is motivated by the employee’s protected characteristic.192 Common examples of harassment include frequent or severe:
- Offensive jokes,
- Derogatory comments about the employee’s appearance, or
- Inappropriate touching.193
Unlike normal discrimination claims, the law does not require employees to be damaged or harmed in any way by the offending conduct. A claim of unlawful harassment is complete simply by the harassment itself.194
Additionally, even small employers (those who employ one or more employees) are prohibited from engaging in unlawful workplace harassment.195 This differs from discrimination claims, which generally only apply to employers of five or more people.196 So, harassment claims are sometimes easier to prove than normal discrimination claims.
Consequences of Unlawful Discrimination
Employers who unlawfully discriminate are subject to civil damages and penalties. Among other consequences, employers could be subject to the following:
- Paying the employee backpay, contributing to the employee’s retirement funds, or giving the employee other amounts that are meant to compensate them for all the harm caused by the employer’s unlawful acts;197
- Paying damages equal to the amount of money the employee may have lost from: an unfair firing, the refusal to promote the employee, or unequal pay;198
- Repaying the employee’s attorney fees;199
- Repaying the employee’s litigation expenses or expert witness fees;200
- Reinstatement of the employee in their job, or paying the employee’s future projected earnings if reinstatement isn’t feasible;201
- Interest on the amounts won as a result of a lawsuit;202
- Compensation for the employee’s emotional pain or suffering;203 and
- Punitive damages meant to punish the employer for their wrongdoing.204
These types of damages are the most common seen in employment cases. If specific facts merit, there may be other types of remedies the employee can pursue.
Filing a Discrimination Claim
Claims Start with a Government Agency
When an employee decides to sue their employer, they must first file a written complaint with an administrative agency.205 Employees pursuing a discrimination claim can’t go straight to court with a lawsuit.206 They must first have any administrative hearing, a process referred to as “exhausting” the employee’s administrative remedies.
If the employee is bringing claims under state law only, the complaint should be filed with California’s Department of Fair Employment and Housing (the DFEH).207 We have provided a more in-depth explanation of the process in our article: How to File a Work Discrimination Complaint with California’s DFEH.
If the employee is bringing claims under federal law, the complaint can be filed with either the DFEH or the U.S. Equal Employment Opportunity Commission (the EEOC). When a complaint is filed with the DFEH, courts consider it to have also been filed with the EEOC.208
Filing the complaint in either agency satisfies the employee’s obligations in this regard. If the employee chooses to file with the EEOC, they can find more information about the process here.
If, after a complaint is filed with the appropriate administrative agency, the claim is not resolved by either the EEOC or the DFEH, the employee will be issued a document called a right-to-sue letter.209 The employee may then pursue their case by bringing a lawsuit in court.
The Deadline to File (Statute of Limitations)
Employees are up against strict deadlines when pursuing relief for work discrimination. If the employee is bringing claims under state law, they must file a complaint against the employer with California’s Department of Fair Employment and Housing (the DFEH) no later than one year from the date of the alleged discriminatory act.210
If the employee has gone through the administrative process and has been issued a right-to-sue letter from the DFEH, the employee will then have one year to file a lawsuit in civil court against the employer.211 This one-year clock starts ticking on the date the right-to-sue letter is issued.
If the employee is pursuing federal relief, they must file a complaint with either the DFEH or the U.S. Equal Employment Opportunity Commission (the EEOC) within 300 days of the alleged discriminatory act.212 If either agency issues a right-to-sue letter, the employee will have 90 days to file a lawsuit in court based on federal claims.213
There are, of course, exceptions to these time limits. You should speak with a lawyer immediately if you are unsure whether your claim is time-barred.
Retaliation is Prohibited
Employees are often worried about the consequences of pursuing a discrimination claim against their employer. However, it’s important to understand that employers may not terminate or take adverse employment actions against their employees simply because the employee opposed the employer’s discriminatory policies.214
Similarly, an employee who has suffered discrimination has a right to file a complaint, testify, or assist in any proceeding in a discrimination claim against their employer. The employer may not retaliate against them for doing so.215
Hiring a Lawyer
Employees are not required to have a lawyer to file a claim against their employer, but it’s often a good idea to have one.
The law can be complex and very few cases are straightforward. Even if the facts are strong in an employee’s case, an experienced employment law attorney can sometimes help by:
- Collecting all legally-relevant information,
- Applying the law to the evidence and related facts in a compelling way,
- Avoiding the strategic pitfalls many nonlawyers are unfamiliar with, and
- Maximizing the financial damages the employee receives.
Of course, there is no guarantee that a lawyer will be able to accomplish these things. But when employees handle their legal disputes without representation, there is sometimes an increased risk that they will lose or severely harm their case due to legal missteps that a lawyer would have avoided.
If the employer contests the employee’s claim—which happens often—legal arguments will have to be made and evidence might need to be presented. This might occur in court or with an administrative agency, sometimes according to complicated legal procedures. It can be a good idea to have a lawyer who is familiar with navigating these systems.
In many cases, attorneys are willing to work with no upfront costs on the part of the employee. Instead, they will take a percentage of what the employee wins at the end of the case.
It is also possible that the employer will be required to pay the employee’s legal fees at the end of the case. Some laws place the burden of those expenses on the employer because it’s easier for them to afford it.216
So, although there is no legal requirement that an employee must have an attorney, navigating the claims process can be much easier if the employee has one.
If you are interested in having a lawyer review your case, give our California lawyers a call at (310) 340-7677.
Gov. Code, § 12940.Footnote 1
See, e.g., 42 U.S.C. § 2000e–2000e-17 [Civil Rights Act of 1964]; Gov. Code, § 12921.Footnote 2
Gov. Code, § 12920 [“It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account 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, sexual orientation, or military and veteran status.”].Footnote 3
Gov. Code, § 12920.Footnote 4
Gov. Code, § 12940, subd. (a); Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 638 [“The broad purpose of the FEHA is to safeguard an employee’s right to seek, obtain, and hold employment without experiencing discrimination on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.”].Footnote 5
Gov. Code, § 12926, subd. (d).Footnote 6
Gov. Code, §§ 12925, subd. (b), 12930.Footnote 7
Gov. Code, § 12960, subd. (b); Cal. Code Regs., tit. 2, §§ 10002–10034.Footnote 8
42 U.S.C. § 2000e–2000e-17 [Civil Rights Act of 1964].Footnote 9
42 U.S.C. § 12101(b)(2). The ADA has since been modified by the ADA Amendments Act of 2008, which kept the ADA’s original purpose but expanded the rights it provided. (Pub.L. No. 110-325, § 2, 122 Stat. 3553.)Footnote 10
29 U.S.C. § 206(d).Footnote 11
29 U.S.C. § 621(b).Footnote 12
This act amended 29 U.S.C. §§ 216, 1132, 1182, 1191b, 300gg-1, 300gg–21, 300gg–51, 300gg–61, 300gg–91, 1395ss.Footnote 13
42 U.S.C. §2000e-5.Footnote 14
California Federal Sav. & Loan Ass’n v. Guerra (1987) 479 U.S. 272, 281 [“Congress has explicitly disclaimed any intent categorically to pre-empt state law or to “occupy the field” of employment discrimination law.”]; see, e.g., 42 U.S.C. § 2000e-7; 29 C.F.R. § 1630.1(d) [“This part does not invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than is afforded by this part.”].Footnote 15
Gov. Code, § 12926, subd. (d).Footnote 16
See, e.g., 29 U.S.C. § 630(b); 42 U.S.C. § 12111(5).Footnote 17
See Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 481 [“A federal enclave is land over which the federal government exercises legislative jurisdiction.”].Footnote 18
Fed. R. Civ. Proc., rule 48(b) [“Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.”].Footnote 19
Cal. Const. Art. I, § 16; Code of Civ. Proc., § 618.Footnote 20
Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128 [“In general, there are two types of illegal employment discrimination under the ADA and the FEHA: disparate treatment and disparate impact.”].Footnote 21
Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195 [“In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.”].Footnote 22
Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307; Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.Footnote 23
CACI No. 2500 [Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))].Footnote 24
Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129 [“To prevail on a theory of disparate impact, the employee must show that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on certain employees because of their membership in a protected group.”].Footnote 25
Int’l Bhd. of Teamsters v. United States (1977) 431 U.S. 324, 335, fn. 15 [97 S.Ct. 1843, 1854] [“Claims of disparate treatment may be distinguished from claims that stress ‘disparate impact.’ The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. [Citations.] Proof of discriminatory motive, we have held, is not required under a disparate-impact theory.”].Footnote 26
Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307; Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.Footnote 27
CACI No. 2502 [Disparate Impact – Essential Factual Elements (Gov. Code, § 12940(a))].Footnote 28
Gov. Code, §§ 12926, subd. (d), 12940, subd. (a).Footnote 29
Gov. Code, §§ 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d).Footnote 30
Gov. Code, § 12940, subd. (j)(4)(A) [defining “employer” to include “any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract,” for the purposes of harassment]; Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1217 [“FEHA’s prohibition against harassment is not limited to employers of five or more persons. Rather, FEHA expressly makes the harassment prohibition applicable to employers of ‘one or more persons.'”].Footnote 31
Gov. Code, §§ 12920, 12926, subd. (d).Footnote 32
Gov. Code, § 12926, subd. (d).Footnote 33
Gov. Code, § 12925, subd. (d).Footnote 34
Cal. Code Regs., tit. 2, § 11008, subd. (d)(1).Footnote 35
Cal. Code Regs., tit. 2, § 11008, subds. (c), (d).Footnote 36
Cal. Code Regs., tit. 2, § 11008, subds. (c), (d).Footnote 37
Cal. Code Regs., tit. 2, § 11008, subd. (d)(2).Footnote 38
Cal. Code Regs., tit. 2, § 11008, subd. (d)(2).Footnote 39
42 U.S.C. § 12111(5)(A); 29 C.F.R. § 1630.2(e)(1).Footnote 40
Gov. Code, § 12926, subd. (d).Footnote 41
Cal. Code of Regs., tit. 2, § 11008, subd. (d)(5) [“A religious association or religious corporation not organized for private profit is not an employer under the meaning of this Act; any non-profit religious organization exempt from federal and state income tax as a non-profit religious organization is presumed not to be an employer under this Act. Notwithstanding such status, any portion of such tax exempt religious association or religious corporation subject to state or federal income taxes as an unrelated business and regularly employing five or more individuals is an employer.”].Footnote 42
See Gov. Code, § 12926.2.Footnote 43
Cal. Code of Regs., tit. 2, § 11008, subd. (d)(6) [“‘Employer’ includes any non-profit corporation or non-profit association other than that defined in subsection (5).”].Footnote 44
Civ. Code, § 2295.Footnote 45
Gov. Code, § 12926, subd. (d); Cal. Code of Regs., tit. 2, § 11008, subd. (d)(3) [“Any person or individual acting as an agent of an employer, directly or indirectly, is also an employer.”].Footnote 46
Gov. Code, § 12940, subd. (a).Footnote 47
Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492 [“The Court of Appeal in Nichols identified the ‘right to control’ as a significant factor in defining an agency relationship.”]; see also Laird v. Capital Cities/Abc (1998) 68 Cal.App.4th 727, 741.Footnote 48
Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 493.Footnote 49
Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 503 [“A franchisor will be liable if it has retained or assumed the right of general control over the relevant day-to-day operations at its franchised locations that we have described, and cannot escape liability in such a case merely because it failed or declined to establish a policy with regard to that particular conduct.”].Footnote 50
Reno v. Baird (1998) 18 Cal.4th 640, 645 [holding that only the employer, and not individual supervisors, may be sued and held liable under FEHA’s prohibition against discriminatory hiring, firing, and personnel practices]; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173; Le Bourgeois v. Fireplace Mfg. (1998) 68 Cal.App.4th 1049, 1054–1055.Footnote 51
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 62–63 [“[I]t was the intent of the Legislature to place individual supervisory employees at risk of personal liability for personal conduct constituting harassment, but that it was not the intent of the Legislature to place individual supervisory employees at risk of personal liability for personnel management decisions later considered to be discriminatory. We conclude that the Legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance, and business or personnel management decisions—which might later be considered discriminatory—as inherently necessary to performance of a supervisor’s job. As a foundational step in our analysis, therefore, we distinguish harassment from discrimination.”].Footnote 52
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 77 [“The fact that the employer is liable via the respondeat superior effect of the ‘agent’ language provides protection to employees even if individual supervisors are not personally liable. Hence we do not find this consideration to compel a conclusion that the Legislature must have intended to impose personal liability on individual supervisory employees.”].Footnote 53
Gov. Code, § 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d)(4).Footnote 54
Gov. Code, § 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d)(4) [“‘Employer’ includes the State of California, any political or civil subdivision thereof, counties, cities, city and county, local agencies, or special districts, irrespective of whether that entity employs five or more individuals.”].Footnote 55
Gov. Code, § 12940, subd. (j)(3).Footnote 56
Gov. Code, § 12940, subd. (j)(1) [“Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”].Footnote 57
Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 [“When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).”].Footnote 58
Gov. Code, § 12940, subd. (a).Footnote 59
See generally Gov. Code, § 12940.Footnote 60
Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842 [“In order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee.”].Footnote 61
Gov. Code, § 12926, subd. (c); Cal. Code of Regs., tit. 2, § 11008, subd. (c) [“‘Employee.’ Any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.”]; but see Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842 [“[T]he FEHA does not define an employer, employee, or what constitutes employment.”].Footnote 62
Cal. Code of Regs., tit. 2, § 11008, subd. (c).Footnote 63
Cal. Code of Regs., tit. 2, § 11008, subd. (c); Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 633 [“[T]the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices.”]; but see Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 155 [person appointed to a volunteer position by a city was not an “employee” because he served without pay].Footnote 64
Gov. Code, § 12940; Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.Footnote 65
Gov. Code, § 12940, subd. (a).Footnote 66
Cal. Code of Regs., tit. 2, § 11008, subd. (a) [“‘Applicant.’ Any individual who files a written application or, where an employer or other covered entity does not provide an application form, any individual who otherwise indicates a specific desire to an employer or other covered entity to be considered for employment.”].Footnote 67
Cal. Code of Regs., tit. 2, § 11008, subd. (a) [“Except for recordkeeping purposes, “Applicant” is also an individual who can prove that he or she has been deterred from applying for a job by an employer’s or other covered entity’s alleged discriminatory practice.”].Footnote 68
Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 153 [“The Act does not prohibit an employer from rejecting a job applicant because she is less qualified than the person selected.”].Footnote 69
Labor Code, § 3353.Footnote 70
Labor Code, § 3353.Footnote 71
Cal. Code of Regs., tit. 2, § 11008, subd. (c)(1).Footnote 72
Gov. Code, § 12940, subd.(j)(5).Footnote 73
Gov. Code, § 12940, subd.(j)(1).Footnote 74
Gov. Code, § 12926, subd. (c); Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].Footnote 75
Cal. Code of Regs., tit. 2, § 11008, subd. (c)(5) [“An individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency is an employee of that employer for such terms, conditions and privileges of employment under the control of that employer. Such an individual also is an employee of the temporary service agency with regard to such terms, conditions and privileges of employment under the control of the temporary service agency.”].Footnote 76
Cal. Code of Regs., tit. 2, § 11008, subd. (c)(5); see also Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 [“The possibility of dual employment is well recognized in the case law. ‘Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers — his original or “general” employer and a second, the “special” employer.'”], quoting Miller v. Long Beach Oil Dev. Co. (1959) 167 Cal.App.2d 546, 549.Footnote 77
Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1625-1626 [“[T]he employment relationship for FEHA purposes must be tied directly to the amount of control exercised over the employee. . . . The law has long recognized that a contracting employer acts as an ’employer’ for purposes of applying state and federal antidiscrimination laws.”].Footnote 78
See Gov. Code, § 12926, subd. (c); Cal. Code of Regs., tit. 2, § 11008, subd. (c); but see Cal. Code of Regs., tit. 2, § 11008, subd. (k) [“Unpaid interns and volunteers may or may not be employees.”].Footnote 79
Gov. Code, § 12940, subds. (c), (j), & (l).Footnote 80
See Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 155 [unpaid volunteer found to not be an employee within the meaning of FEHA].Footnote 81
Gov. Code, § 12940, subds. (j), as amended by Stats. 2014, ch. 302, § 1, eff. Jan. 1, 2015.Footnote 82
Gov. Code, § 12926.05, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (c)(1) [“‘Employee’ does not include any individual employed under special license in a non-profit sheltered workshop or rehabilitation facility.”].Footnote 83
Gov. Code, § 12926.05; Labor Code, §§ 1191, 1191.5.Footnote 84
Gov. Code, § 12926.05, subd. (b)(2).Footnote 85
29 U.S.C. §§ 623, 631(a); Gov. Code, §§ 12926, subd. (b) [“‘Age’ refers to the chronological age of any individual who has reached his or her 40th birthday.”], 12940, subd. (a) [employer may not refuse to hire a candidate or discriminate an employee on the basis of race, skin color, national origin, religion, disability, gender, sexual orientation, or age].Footnote 86
Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 766 [“Both California and federal law prohibit employers from unlawfully discriminating against employees on the basis of their age.”]; 29 U.S.C. §§ 621–634; Gov. Code, § 12900, et seq.Footnote 87
Gov. Code, § 12940, subd. (a).Footnote 88
Gov. Code, §§ 12926, subd. (o), 12940, subd. (a).Footnote 89
McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273, 280 [96 S.Ct. 2574, 2579] [“Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they [non-white] . . . .”].Footnote 90
Gov. Code, § 12926, subd. (o) [“Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status’ includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.”].Footnote 91
Gov. Code, § 12940, subd. (a).Footnote 92
Gov. Code, § 12940, subd. (l)(1).Footnote 93
Gov. Code, § 12926, subd. (q) [“‘Religious creed,’ ‘religion,’ ‘religious observance,’ ‘religious belief,’ and ‘creed’ include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. ‘Religious dress practice’ shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. ‘Religious grooming practice’ shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.”].Footnote 94
Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39, 49 [“A belief in a Supreme Being is not required. [Citations.] But, something more than a philosophy or way of life is required.”].Footnote 95
Gov. Code, § 12926, subd. (q).Footnote 96
California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1013 [“The relevant inquiry is the sincerity, not the verity of the employee’s religious beliefs.”].Footnote 97
California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1014; Fowler v. Rhode Island (1953) 345 U.S. 67, 70 [73 S.Ct. 526, 527] [“it is no business of courts to say that what is a religious practice or activity for one group is not religion”].Footnote 98
Gov. Code, § 12940, subds. (l)(2), (l)(3)Footnote 99
Gov. Code, § 12940, subd. (l)(2) [“An accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.”].Footnote 100
Gov. Code, § 12926, subd. (m)(1); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584; Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1026.Footnote 101
Gov. Code, § 12940, subd. (a).Footnote 102
Gov. Code, § 12926, subd. (m)(1).Footnote 103
Gov’t. Code, § 12926, subd. (m)(1)(B)(ii) [“A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.”].Footnote 104
Gov. Code, § 12926, subd. (m)(1)(B)(iii) [“‘Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.”]; Cal. Code Regs., tit. 2, § 11065, subd. (l)(1) [“Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”].Footnote 105
Gov. Code, § 12926, subd. (m)(2).Footnote 106
Gov. Code, § 12926, subd. (m)(3).Footnote 107
Gov. Code, § 12926, subds. (m)(4), (m)(5).Footnote 108
Cal. Code Regs., tit. 2, § 11065, subd. (d)(2)(C).Footnote 109
Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).Footnote 110
See, e.g., Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431, 440–444 [no disability found where employee suffered from a mere temporary anxiety disorder].Footnote 111
Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B) [“‘Disability’ does not include: . . . conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.”].Footnote 112
Gov. Code, § 12926, subd. (j)(1); Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).Footnote 113
Gov. Code, § 12940, subd. (a).Footnote 114
Gov. Code, § 12940, subd. (j)(4), (j)(5).Footnote 115
Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).Footnote 116
Gov. Code, § 12926, subd. (j)(5); Cal. Code Regs., tit. 2, § 11065, subds. (d)(9)(A) [“‘Disability’ does not include: . . . compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs, and “sexual behavior disorders . . . .”], (q).Footnote 117
See Gov’t Code, § 12949.Footnote 118
Gov. Code, § 12926, subd. (i); Cal. Code Regs., tit. 2, § 11065, subd. (d)(7).Footnote 119
Gov. Code, § 12940, subd. (a).Footnote 120
Gov. Code, § 12940, subd. (o) [“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.”].Footnote 121
Gov. Code, § 12926 subds.(g)(1)–(4); Gov. Code, § 12940, subd. (o).Footnote 122
Gov. Code, § 12926, subd. (g), (i).Footnote 123
Gov. Code, § 12940, subd. (a) [prohibiting discrimination on the basis of marital status].Footnote 124
Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719, 724 [“[R]egulations governing California’s marital status antidiscrimination laws are clear that marriage between two coworkers is not ipso facto a reason to get rid of one of them.”]; see also id. at p. 743 [“the state civil rights statute impliedly provides that employers cannot have an a priori or automatic rule against married coworkers”].Footnote 125
Gov. Code, § 12940, subd. (a)(3)(A).Footnote 126
Gov. Code, § 12940, subd. (a)(3)(B).Footnote 127
Gov. Code, § 12940, subd. (a).Footnote 128
Gov. Code, § 12926 subd. (r).Footnote 129
Gov. Code, §§ 12926, subd. (r)(1)(A), 12940, subd. (a), 12945.Footnote 130
Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1339 [“Under section 12940, a woman disabled by pregnancy is entitled to the protections afforded any other disabled employee—a reasonable accommodation that does not impose an undue hardship on her employer.”]; Cal. Code of Regs., tit. 2, § 11068, subd. (a).Footnote 131
Gov. Code, § 12945, subd. (b).Footnote 132
Gov. Code, § 12926, subd. (m)(1).Footnote 133
Gov. Code, § 12940, subd. (a).Footnote 134
Code, § 12926, subd. (r)(2) [“‘Sex’ also includes, but is not limited to, a person’s gender. ‘Gender’ means sex, and includes a person’s gender identity and gender expression. ‘Gender expression’ means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”].
Gov. Code, § 12940, subd. (a).Footnote 136
Gov. Code, § 12926, subd. (s) [“‘Sexual orientation’ means heterosexuality, homosexuality, and bisexuality.”].Footnote 137
Gov. Code, § 12926, subd. (o).Footnote 138
Gov. Code, §§ 12926, subd. (o), 12940, subd. (a).Footnote 139
Gov. Code, § 12940, subd. (a) [prohibiting employers from discriminating on the basis of the “military and veteran status of any person”].Footnote 140
Gov. Code, § 12926, subd. (k).Footnote 141
Gov. Code, § 12940, subd. (a).Footnote 142
Please note that this article is not intended to be comprehensive. There may be types of unlawful discrimination not covered here.Footnote 143
Gov. Code, § 12940, subd. (a), (m); Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [“In addition to a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an applicant’s or employee’s known disability.”].Footnote 144
Cal. Code of Regs., tit. 2, § 11068, subd. (a).Footnote 145
Cal. Code of Regs., tit. 2, § 11068, subd. (a).Footnote 146
Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.Footnote 147
Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. 11 [“the reasonableness of an accommodation is generally a factual question”].Footnote 148
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(A).Footnote 149
Cal. Code Regs., tit. 2, §§ 11065, subd. (p)(2)(M), 11068, subd. (c).Footnote 150
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(L).Footnote 151
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(B).Footnote 152
Gov. Code, § 12940, subd. (l).Footnote 153
Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345, 370 [“Once the employee establishes a prima facie case, then the employer must establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship.”].Footnote 154
Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345, 370 [“In evaluating an argument the employer failed to accommodate an employee’s religious beliefs, the employee must establish a prima facie case that he or she had a bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement.”].Footnote 155
California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1013 [“Under California law, an employer is required to accommodate not just a religious belief, but also a religious observance, if reasonably possible without undue hardship. (§ 12940, subd. (l).) There is nothing in the language of the statute that obligates an employer to accommodate only those religious practices that are required by the tenets of the employee’s religion, or that amount to a “temporal mandate” of the religion.”].Footnote 156
California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1017 [“an individual’s religious beliefs must be accommodated even where it means making an exception to a rule which is reasonably applied to other individuals with different beliefs.”].Footnote 157
California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1013 [18 Cal.Rptr.3d 906].] [“Under California law, an employer is required to accommodate not just a religious belief, but also a religious observance, if reasonably possible without undue hardship.”].Footnote 158
Gov. Code, § 12926, subd. (u) [“‘Undue hardship’ means an action requiring significant difficulty or expense . . . .”].Footnote 159
Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1159 [“FEHA forbids ‘an employer . . . to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance.”].Footnote 160
Labor Code, §§ 1030–1033; 29 U.S.C. § 207(r) [applying only to employers with 50 or more employees if such requirements would impose an undue hardship].Footnote 161
Labor Code, § 1032 [“An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.”]; see also 29 U.S.C. 207(r)(3) [“An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”].Footnote 162
Labor Code, §§ 1031–1033.Footnote 163
Lab. Code, § 1171.5, subd. (a).Footnote 164
Lab. Code, § 1171.5, subd. (a).Footnote 165
8 U.S.C. § 1324a(a).Footnote 166
Lab. Code, § 1019.1, subd. (a)(1).Footnote 167
Lab. Code, § 1019.1, subd. (a)(2).Footnote 168
Gov. Code, § 12940, subd. (a).Footnote 169
Gov. Code, § 12926, subd. (v); Veh. Code, § 12801.9.Footnote 170
Labor Code, § 244.Footnote 171
Gov. Code, § 12951, subd. (a).Footnote 172
Turner, Public Entities, Officers, and Employees: Chapter 295: Codification of California’s Fair Employment and Housing Commission Regulations Governing Workplace Language Policies (2002) 33 McGeorge L.Rev. 433, 439.Footnote 173
Gov. Code, § 12951.Footnote 174
Gov. Code, § 12951, subd. (b).Footnote 175
Labor Code, §§ 1101, 1102; see also Labor Code, § 96, subd. (k).Footnote 176
Labor Code, § 1102.Footnote 177
Labor Code, § 1102.5.Footnote 178
Labor Code, § 1103 [“An employer or any other person or entity that violates this chapter is guilty of a misdemeanor punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine not to exceed one thousand dollars ($1,000) or both that fine and imprisonment, or, in the case of a corporation, by a fine not to exceed five thousand dollars ($5,000).”].Footnote 179
Labor Code, §§ 1102.5–1105.Footnote 180
Gov. Code, § 12940, subd. (k) [“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”].Footnote 181
Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307; Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.Footnote 182
Alejandro v. ST Micro Elecs., Inc. (N.D.Cal. 2015) 129 F.Supp.3d 898, 913.Footnote 183
Alejandro v. ST Micro Elecs., Inc. (N.D.Cal. 2015) 129 F. Supp. 3d 898, 913Footnote 184
Gov. Code, § 12940, subd. (j).Footnote 185
Gov. Code, § 12940, subd. (j)(3).Footnote 186
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.Footnote 187
Gov. Code, § 12940.Footnote 188
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608; Gov. Code, § 12940.Footnote 189
McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1113 [“In evaluating the objective hostility of a work environment, the factors to be considered include the ‘frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'”], quoting Nichols v. Azteca Rest. Enters. (9th Cir. 2001) 256 F.3d 864, 872.Footnote 190
Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 [118 S.Ct. 2275, 2283]; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519 [“This determination requires judges and juries to exercise ‘[c]ommon sense, and an appropriate sensitivity to social context’ in order to evaluate whether a reasonable person in the plaintiff’s position would find the conduct severely hostile or abusive.”].Footnote 191
Cal. Code of Regs., tit. 2, §§ 11019, subd. (b), 11034, subd. (f)(1).Footnote 192
Cal. Code of Regs., tit. 2, §§ 11019, subd. (b), 11034, subd. (f)(1).Footnote 193
Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1352 [“for FEHA purposes, no loss of tangible job benefits is necessary to establish harassment.”].Footnote 194
Gov. Code, § 12940, subd. (j)(4)(A) [defining “employer” to include “any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract,” for the purposes of harassment]; Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1217 [“FEHA’s prohibition against harassment is not limited to employers of five or more persons. Rather, FEHA expressly makes the harassment prohibition applicable to employers of ‘one or more persons.'”].Footnote 195
Compare Gov. Code, § 12926, subd. (d), with Gov. Code, § 12940, subd. (j)(4)(A).Footnote 196
Civ. Code, § 3333 [“For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”].Footnote 197
Civ. Code, § 3333.Footnote 198
Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 199
Gov. Code, § 12965, subd. (b).Footnote 200
Pollard v. E. I. du Pont de Nemours & Co. (2001) 532 U.S. 843, 846 [121 S.Ct. 1946, 1948, 150 L.Ed.2d 62, 67] [“In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement.”].Footnote 201
Civ. Code, § 3287, subd. (a).Footnote 202
42 U.S.C. § 1981a(b)(3).Footnote 203
Civ. Code, § 3294, subd. (a) [“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”].Footnote 204
Gov. Code, § 12960, subd. (b).Footnote 205
Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 [“Under California law ‘an employee must exhaust the . . . administrative remedy’ provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) . . . .”]; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90 [“Before a person may file a civil complaint alleging a violation of this statute, he or she must first file an administrative claim with the DFEH.”].Footnote 206
Gov. Code, § 12960, subd. (b).Footnote 207
Surrell v. Cal. Water Serv. (9th Cir. 2008) 518 F.3d 1097, 1104 [“Although Surrell never filed a charge directly with the EEOC, her charge filed with the State Employment Department is deemed filed with the EEOC pursuant to a worksharing agreement between the two entities.”].Footnote 208
Gov. Code, § 12965, subd. (b) [“If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”].Footnote 209
Gov. Code, § 12960; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 [“As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .'”].Footnote 210
Gov. Code, § 12965, subd. (d)(2).Footnote 211
42 U.S.C. §§ 2000e-5(e)(1), 12117.Footnote 212
42 U.S.C. §§ 2000e-5(f)(1), 12117.Footnote 213
Gov. Code, § 12940, subd. (h).Footnote 214
Gov. Code, § 12940, subd. (h).Footnote 215
See, e.g., Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 216