A Primer on California Anti-Discrimination Statutes
In California, the Department of Fair Employment and Housing (DFEH) is responsible for enforcing California’s employment laws, including all the anti-discrimination and anti-harassment laws. The DFEH has the power to investigate complaints, hold hearings, and seek a broad range of remedies from injunctive relief to monetary damages.
California’s Fair Employment and Housing Act (FEHA), Government Code Section 12900 et seq., was enacted in 1959 and greatly expanded California’s civil rights laws. FEHA is similar to Title VII of the federal Civil Rights Act, which was passed in 1964. FEHA prohibits discrimination based on the following: race, color, religion, sex, sexual orientation, gender, gender identity and gender expression, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, age (40 and over), and protected veteran status.
In addition to prohibiting discrimination in hiring, FEHA also applies to compensation, terms and conditions of employment, and termination. Under FEHA, employers cannot retaliate against an employee for opposing any unlawful employment practice under the Employment and Housing provisions of the FEHA. For example, employers are prohibited from firing an employee because he or she complains that they are being sexually harassed at work.
The FEHA mandates "a place of employment free of discrimination and harassment of any kind." In 2011, the California legislature enacted the Pregnancy Disability Leave Law , which amends FEHA to include pregnancy-related medical conditions in the definition of "physical disability." California law requires covered employers to provide unpaid, job-protected leave when an employee is disabled due to pregnancy or child birth.
The California Family Rights Act (CFRA) prohibits employers with at least 50 employees within a 75-mile radius from discriminating or retaliating against employees who exercise their right to take a leave under CFRA or the Family Medical Leave Act (FMLA). Employers with at least 5 employees must also give time off to employees who volunteer for an emergency duty firefighting or law enforcement duty.
Employees who are harassed or discriminated against because of any of the prohibited categories listed above may file a complaint through administrative filings or by filing a civil lawsuit. Under the FEHA, individuals have both the right to file a civil lawsuit and to file an administrative charge. However, a civil lawsuit must be filed within one year of the alleged unlawful employment practice, while the time limit for an administrative filing is six months. Administrative filings are made to the California Department of Fair and Housing or a local agency with which the Department has established a contract; while civil filings are submitted to the California Superior Court. If the civil lawsuit is not timely filed, the statute of limitations for bringing a civil suit will be tolled while a complaint is being investigated by DFEH.
Key Statutes and Legislation
California has several key anti-discrimination laws that apply to a wide range of businesses and industries. The following are some of the most important ones to ensure compliance and understand employer obligations.
The Fair Employment and Housing Act (FEHA) is the primary law that prohibits discrimination based on sex, gender identity, gender expression, age, race, color, national origin or ancestry, religion, sexual orientation, marital status, medical condition, or physical or mental disability—as well as certain types of harassment. FEHA also includes protections for whistleblowers, individuals who take time off work to serve in the military, victims of domestic violence and sexual assault, people with genetic characteristics and status as an homeless person. FEHA applies to companies with five or more employees.
California’s Unruh Civil Rights Act prohibits businesses from discriminating based on age, race, color, religion, sex, sexual orientation, marital status and other protected class status. This law applies to all businesses, meaning it extends to any company that offers goods or services to others, such as retailers, restaurants, hospitals, spas, car dealerships, theaters, banks, insurance companies, schools, and other establishments of any size. Because of this breadth, most businesses are covered.
The California Equal Pay Act (Cal. Lab. Code § 1197.5) prohibits discrimination in pay based on sex, race, or ethnicity. This law prohibits employers from paying different wages to employees of different sexes, races or ethnicities for "substantially similar" work, unless a pay differential is based on seniority, merit, education, training, or other job-related factor. It also prohibits employers from considering past salary for accounting for pay differences under the law.
The California Family Rights Act (Cal. Lab. Code § 12945.2) gives employees the right to take up to 12 weeks of unpaid leave for certain medical reasons, including pregnancy disability and bonding time with new children. Covered employees cannot be discriminated against based on the use of Family Rights Act leave or for attempting to exercise rights under the statute.
The federal Pregnancy Discrimination Act (PDA) prohibits discrimination against employees based on pregnancy, maternity, and childbirth. It also requires employers to provide reasonable accommodations to pregnant employees. California’s Pregnant Workers Bill of Rights informs employees of their rights to workplace pregnancy accommodation.
The Healthy Workplaces, Healthy Families Act (Cal. Lab. Code § 245 et seq) entitles employees to sick leave for certain reasons, including for the employee’s own health needs or those of others, including a family member. The law includes protections against retaliation for use of legally protected sick leave.
The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination based on genetic information. This includes genetic tests and family health history, and requires employers to keep health information confidential.
Discrimination Types
California’s anti-discrimination laws cover a wide range of areas in both public and private sectors. Employment discrimination, housing discrimination, discrimination by public accommodations, healthcare discrimination, and education discrimination are some of the most prominent issues California laws address. The state effectively prohibits discrimination based on various characteristics that are identified in the Fair Employment and Housing Act (FEHA) and the Unruh Act.
Employment Discrimination
The FEHA prohibits a variety of discriminatory practices in employment. Some of the protected categories you cannot be discriminated against in employment include: An employer who fires, refuses to hire, or "deprives" a person of employment because of their membership in one of these categories can be liable under the DFEH.
Housing Discrimination
Similarly, the DFEH prohibits housing discrimination based on the above categories. A property owner or landlord cannot discriminate against an applicant or tenant based on their race, color, religion, sex, marital status, national origin, ancestry, familial status, disability, gender identity, or genetic information.
Public Accommodation Discrimination
Another similar prohibition is on discrimination by "business establishments" (public accommodations) under the Unruh Act. This includes any establishment that provides lodging, facilities, a park, or other places for sale or lease to the public. These businesses cannot discriminate based on a protected category like sex, race, color, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, or other identifiers.
Healthcare Discrimination
Healthcare providers in California are also prohibited from discriminating against patients under the Unruh Act or the FEHA. They also cannot discriminate based on such categorizations in their insurance practices, business partnerships, or any other activities.
Education Discrimination
Finally, educational institutions also cannot discriminate in admission policies, granting scholarships, student fees, or other aspects of education. The DFEH prohibits discrimination in all these areas on the basis of the above-mentioned protected categories.
Discrimination Classes
With the passage of the Fair Employment and Housing Act in 1959, California became the first state in the nation to prohibit employment discrimination based on race. The FEHA is still the most comprehensive anti-discrimination law in the nation today, covering employers with as few as five employees or independent contractors who employ managers and supervisors. It now includes numerous groups that have historically been underrepresented, including veterans, individuals experiencing homelessness, caregivers for elderly people, and victims of domestic violence.
California state law protects the following classes:
Racial and ethnic groups are also protected by the Unruh Civil Rights Act, including groups identified by "particular descent" and "castes." This means that Jews, Arabs, Armenians, Kurds, and Sikhs have additional, categorical protections under California law in addition to the protections that apply to particular religions and ethnicities.
Age
People 40 and older are protected by California employment discrimination laws under the Age Discrimination in Employment Act (ADEA) and the Fair Employment and Housing Act (FEHA). Some cities and counties have enacted local laws that prohibit age discrimination for all employees and employers, regardless of age.
Disability
A "physical disability" that limits a major life activity is defined by the FEHA as one that limits movement, lifting, or working in a field that requires reliance on physical skills or abilities. The law also protects "mental disabilities" like bipolar disorder, depression, PTSD, epilepsy, and autism.
Except in narrow circumstances where a physical or mental impairment will pose a direct threat to safety, the law provides additional protections for medical and genetic conditions such as:
You may not discriminate against disabled employees who can perform their jobs with reasonable accommodations. Reasonable accommodations may include, but are not limited to, the following:
Sexual Orientation, Marital Status, and Gender Identity
California non-discrimination laws prohibit employment discrimination based on sexual orientation, gender identity, and marital status. Proposed legislation will soon add "gender expression" to that list. The law defines marriage as the union of two people, regardless of gender.
Domestic Partners
California law allows domestic partners to marry. This right is available to both opposite and same-sex couples. Domestic partners who have registered with the Secretary of State cannot be denied employment for their domestic partnership.
Gender Identity and Gender Expression
Treatment associated with a person’s biological or assigned gender in culture is called gender expression. Gender identity refers to a person’s personal sense of their own gender. Transgender people use gender expression as a way to express their identities, sometimes through physical changes.
The law protects everyone, from those who regularly present as a gender different from the one ascribed to them at birth to those who never fit into traditional gender roles. You may require medical or psychological treatment to transition from one gender to another; dress codes must permit a transition process that employees require to present as their gender in the workplace.
Pregnancy, Maternity, and Associated Medical Conditions
Female employees are protected from discrimination related to conditions like morning sickness, hyperemesis gravidarum, gestational diabetes, preeclampsia, placenta previa, placenta abruption, and labor resulting in serious maternal complications. Pregnancy disability leave is another area of protection for pregnant women in the workforce.
Filing a Charge of Discrimination
If you believe you have been the victim of employment discrimination, you must file a complaint with the DFEH within one year from the last date that the unlawful activity occurred. If you have been terminated, the clock starts on the date of termination. If you were demoted, the date of the last demotion is your triggering date. The day you were passed over for promotion? That’s the triggering date.
There are two ways to file with the DFEH. If you feel comfortable filing the charge without assistance , you may do so by filling out an online form. You may also download and print out the form and mail it in to the DFEH at one of its regional offices. In either case, you must include a recent copy of your employee record from your employer.
Assuming the DFEH maintains jurisdiction over your claim and determines there is cause to proceed against your employer, the agency will issue a right to sue letter so you can pursue a lawsuit directly if you choose to do so.
Recent Extensions and Updates
California’s anti-discrimination laws are continuously evolving to keep up with shifting cultural expectations and demographic trends. In particular, notable amendments and court decisions have addressed issues such as pregnancy disability leave and workplace expression of religious beliefs and practices.
On January 1, 2020, SB 530 was signed into law, amending the California Family Rights Act ("CFRA") to expand protected categories to include "Child Rebating." New section §12945.7 makes it a violation for an employer to discriminate against a "child rebater" – a "woman who seeks or obtains a judgment in an action to enforce her rights with respect to her child support arrearages, including a lump-sum payment of those arrearages or a garnishment of salary or wages, and who discloses this action to her employer, without regard to whether this child support arrearage action is related to an employment compensation or wage garnishment." As an example, if an employee notifies her employer that she plans to garnish her wages to pay child support arrears, the employer may not discriminate or retaliate because of this judgment. Any employer found to have violated this statute shall face a $10,000 civil penalty for the first offense or $25,000 for each successive offense.
Several high-profile cases considering workplace expression of religious beliefs and practices have addressed California’s anti-discrimination laws’ prohibition on employer discrimination based upon a person’s religious expression. These recent cases serve as a reminder of California’s broader protections against workplace discrimination and persecution for religious beliefs and practices.
On May 29, 2020, the appeals court in California reversed a ruling in favor of Color Spot Holdings, Inc., allowing a Rastafarian production worker to proceed with a lawsuit alleging he was wrongfully terminated from his job for refusing to take drug tests containing a chemical that he said was prohibited by his faith. The employee, who said he had worked with Color Spot for about four years before being terminated in July 2015, was initially awarded $200,000 in economic damages and $750,000 in noneconomic damages for pain and mental suffering, along with punitive damages and attorney fees, after a jury trial found that Color Spot failed to accommodate his religion after he submitted a notarized letter, also signed by an attorney for the Rastafari community, stating that drug tests for cannabis would violate his First Amendment rights. The trial court subsequently awarded $755,000 in attorney fees and $250,000 in costs to the employee.
On June 27, 2021, the Ninth Circuit ruled that Los Angeles County violated the civil rights of a female employee by enforcing a policy that prohibited her from wearing her hair in locs. The trial court dismissed the case for failing to state a cognizable claim due to a policy of avoiding hair styles that "tend to put applicants and employees in a negative light," but the appellate court reversed in a ruling filed May 13, 2021, finding that allegations that the county "singled out" an African-American woman and forbade a style common to black women stated a valid claim, as the prohibition on wearing locs is a "race-based grooming policy." Although the county argued that the no-locs policy related to "controlling the image presented to service the public," the court emphasized the employer may not "disfavor particular racial characteristics."
As a testament to its anti-discrimination policy, on October 5, 2021, the California Department of Fair Employment and Housing filed the nation’s first lawsuit against a company for workplace requirements that disproportionately impact people of color, underrepresented communities, and persons with disabilities. Three women were initially hired as models by Wonderful Agency, a staffing agency owned by the California Walnut Commission, but no longer work with the agency, nor do they want to, because the company requires its persons of color models to wear white, blonde, and red wigs, contact lenses with unnatural eye colors, and blue or green prosthetic breast forms. The complaint cites California law which prohibits requiring a model to use a wig or hairpiece that does not match his or her natural hair and make-up, hair dye, or other evidence of European ancestry that does not match his or her natural skin color. The company settled the complaint by agreeing to include hiring individuals with an adverse impact to their race, color, and/or natural hair protected classes, payout of $145,000, and changing their written policies and practices.
Resources and Assistance for Victims
Victims of discrimination in California have several organizations and resources available to them. The DFEH provides a resource page on their website to assist people who have been victims of workplace discrimination and harassment, housing discrimination, and other types of prohibited discrimination. Numerous legal aid and pro bono organizations also exist to help those who cannot afford to pay an attorney. The following types of organizations may be of assistance to victims of discrimination: The Equal Rights Advocates (ERA) provides support, information, and direct services to victims of sex discrimination in multiple areas of daily life, including employment, education, and pregnancy. Their national legal hotline may be of assistance to victims of gender-based discrimination. Call 415-621-0672 between 9:30 a.m. and 5:30 p.m., Tuesday through Friday, for free answers to your legal questions . The Greater Legal Aid Foundation assists with legal matters in the areas of family law, housing and foreclosure, insurance problems, representative payee services, creative financing for new businesses, employment, education, and health care access. The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area is an organization that fights for civil rights statewide. They also provide a hotline for housing discrimination inaccessibility cases. They can be reached at 415-543-9444 for those in Northern California and 800-814-5437 for those in Southern California. The U.S. Department of Education – Office for Civil Rights provides oversight for EEO laws and applies Title VI of the Civil Rights Act of 1964. For more information on federal laws, visit their website at: www.ed.gov. The U.S. Department of Housing and Urban Development handles complaints for workplace and housing discrimination; seniors; homeless assistance; public and Indian housing; housing assistance and supportive living; housing discrimination and lending; and manufactured homes and communities. Their National Housing Discrimination Hotline is 1-800-669-9777.