A “protected class” refers to a group of people who share similar characteristics and are legally protected from being harassed or discriminated against because of those characteristics. The term often arises in employment discrimination cases where an employer unfairly treats an employee on the basis of, for example, the worker’s age, color or religion.
The 17 protected classes in the State of California include:
- national origin,
- physical disability,
- mental disability,
- medical condition,
- genetic information,
- marital status,
- gender identity,
- gender expression,
- age (age discrimination is discriminating against someone 40 or older),
- sexual orientation, and
- military and veteran status.1
1. What is workplace discrimination in California?
Workplace discrimination is when an employer discriminates against a protected class of employees or job applicants.
“Discriminate” means a failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored.2
Note that the California Civil Rights Department (CRD) is responsible for enforcing state laws that make it illegal to discriminate against a job applicant or employee because of a protected characteristic.3
The California Fair Employment and Housing Act (FEHA) is one of California’s main laws prohibiting employers from discriminating against a protected class of employees or job applicants.
The FEHA applies to:
- public and private employers,
- labor organizations and affiliations, and
- employment agencies.
As to employers, the Act applies to employers of 5 or more employees.4
Anti-discrimination laws apply to all business practices, including:
- applications, screening, and interviews,
- hiring, transferring, promoting, terminating, or separating employees,
- working conditions, including compensation, and
- participation in a training or apprenticeship program, employee organization, or union.5
Although nepotism is generally legal in private sector jobs, it can lead to workplace discrimination. For instance if an employer hires his spouse and gives them preferential treatment, this arguably discriminates against other employees based on their marital status.
2. What should you do if you are a victim of workplace discrimination?
In most cases, you first file a discrimination claim with the CRD if you are a victim of workplace discrimination. You often file this claim prior to initiating a lawsuit against the employer.6
You can bring a lawsuit against your employer once the CRD investigates your complaint. In some cases, you can avoid the CRD investigation, and file a suit with the Superior Court, if your attorney secures a right to sue notice.7
If you are successful in a lawsuit, then you can recover money damages from your employer. Money damages from employment discrimination may include losses from:
- back wages (with interest),
- front pay,
- loss of income from a missed promotion,
- reduced pay after a demotion,
- pension benefits,
- bonus payments,
- pain and suffering, and
- emotional distress.
3. Can you get fired for filing a discrimination claim?
No. California workers cannot be retaliated against for reporting workplace discrimination against themselves or other employees, applicants, or co-workers.
The FEHA protects employees who are retaliated against for:
- opposing workplace harassment,
- opposing employment discrimination against other employees,
- reporting employment discrimination or workplace harassment, and
- assisting with CRD investigations or government inquiries.
If an employer retaliates against an employee for reporting FEHA violations or other employment law violations, the employee may be able to file:
- a complaint with the CRD for retaliation, and/or
- a lawsuit against the employer for retaliation or wrongful termination.
4. Can a labor and employment attorney help?
Yes. You should consult with a skilled attorney if you believe you are the victim of employment discrimination.
A lawyer can assist in:
- advising you on the applicable employment laws that may apply to your case,
- finding evidence of discrimination,
- filing a complaint with the CRD or EEOC, and
- initiating an employment action against your employer.
Note that most employment attorneys provide free consultations. This means you can gain legal advice at no cost.
Further, your communications with a lawyer are protected by the attorney-client relationship. According to this bond, your lawyer cannot disclose your confidences without first gaining your consent.
5. Are there legitimate grounds for discrimination in California?
In general, an employer can disqualify someone based on a protected characteristic due to either:
- Privacy reasons. For example, hiring a female nurse to care for disabled female patients requiring intimate care is legal.
- Authenticity in the arts. For example, hiring a young person to play a young role is legal.
- Bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of a job. For example, it is not unlawful discrimination for a synagogue to require its rabbis to be Jewish.8
Also note that hiring someone based on nepotism is also generally permissible in the private sector, but not in the public sector.9
- Fair Employment and Housing Act 12940 — Unlawful Practices. See also Americans with Disabilities Act (ada.gov); Title VII of the Civil Rights Act of 1964; and, Verceles v. Los Angeles Unified School Dist., (Court of Appeal of California, Second Appellate District, Division Seven, 2021) 63 Cal. App. 5th 776.
- Black’s Law Dictionary, Sixth Edition – “Discrimination.” See also Baker v. California Land Title Co. (1974) 349 F.Supp. 235.
- See CRD website, “Employment Discrimination.”
- See same.
- See same.
- Fair Employment and Housing Act 12960. See also Ducksworth v. Tri-Modal Distribution Servs. (2020) 47 Cal.App.5th 532. Note that if your discrimination case violates federal discrimination laws, you can file a complaint with the Equal Employment Opportunity Commission (EEOC).
- Fair Employment and Housing Act 12960.
- 42 U.S. Code § 2000e-2; Age Discrimination in Employment Act (ADEA). First Amendment.
- 2 California Code of Regulations 87; California Constitution Art. VII, section 1(b).