The “Protected Classes” in California – What Are They?

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 “protected class” 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 protected classes under California law include:

1. race,
2. religion,
3. color,
4. national origin (including language use),
5. ancestry,
6. physical disability,
7. mental disability,
8. medical condition (for example, HIV/AIDS or cancer),
9. genetic information,
10. marital status,
11. sex (including pregnancy, childbirth, breastfeeding/nursing, and related medical conditions),
12. gender,
13. gender identity,
14. gender expression,
15. age (40 or older),
16. sexual orientation, and
17. military and veteran status.¹

What is workplace discrimination in California?

To “discriminate” is failing to treat all persons equally where no reasonable distinction can be found between them.² Employers who discriminate in the workplace are breaking the law.

Victims of workplace discrimination include not only current employees but also:

• job applicants,
• temps,
• volunteers,
• interns, or
• their immediate family members.

Even independent contractors may be able to bring discrimination cases against an employer if the discrimination involved harassment.³

An example of workplace discrimination is an employer firing an employee after discovering they are Muslim, which is a protected religious class. Even though California is an at-will state (meaning employers can usually fire employers for any reason), it is illegal to fire someone if the reason is discrimination.

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.

Which law prohibits workplace discrimination?

The California Fair Employment and Housing Act (FEHA) is the main law prohibiting employers from discriminating against a protected class of employees or job applicants. The FEHA governs employers with five or more employees.⁴

Anti-discrimination laws apply to all business practices, including:

• advertisements,
• 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

Another, narrower law that prohibits workplace discrimination is the California Equal Pay Act: It requires men and women to receive equal pay for equal work.⁵

What can victims do?

If you are a victim of employment discrimination, you would first file a discrimination claim with the California Civil Rights Department (CRD) or the federal Equal Employment Opportunities Commission (EEOC). They will then investigate your case and may try to resolve it.⁶

If you wish to avoid a CRD or EEOC investigation, you can ask for a “right-to-sue letter.” This allows you to file an employment discrimination lawsuit against the employer right away.

In order to win your employment discrimination lawsuit, you would need to prove by a preponderance of the evidence the following four elements of the jury instructions (CACI) 2500:

1. You belong to a protected class,
2. Your job performance was competent,
3. You suffered an adverse employment action (such as getting fired), and
4. The reason for the adverse employment action was discrimination.⁷

If you win your lawsuit, you may be able to recover such damages as:

• back wages (with interest),
• front pay,
• loss of income from a missed promotion,
• reduced pay after a demotion,
• benefits,
• pension benefits,
• bonus payments,
• pain and suffering, and
• emotional distress.

Workplace Retaliation

The FEHA specifically prohibits California employers from retaliating against you for:

• opposing workplace harassment,
• opposing employment discrimination against other employees,
• reporting employment discrimination or workplace harassment, and
• assisting with CRD investigations or government inquiries.

In addition, you may not be retaliated against for asking for or taking leave you are entitled to, such as sick leave, pregnancy disability leave, or family leave under CFRA (California Family Rights Act).

Retaliation can take many forms, such as wrongful termination, demotions, and failure to promote. If an employer retaliates against you for reporting FEHA violations or other employment law violations, you may be able to file:

• a complaint with the CRD for retaliation and/or
• a lawsuit against the employer.⁸

When Discrimination is Lawful

In general, an employer can disqualify someone based on a protected characteristic due to any of the following:

1. Privacy reasons. For example, hiring a female nurse to care for disabled female patients requiring intimate care is legal.
2. Authenticity in the arts. For example, hiring a young person to play a young role is legal.
3. 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.

Also note that hiring someone based on nepotism is also generally permissible in the private sector, but not in the public sector.⁹

State vs. Federal Law

California law under FEHA is more expensive than federal law under Title VII of the Civil Rights Act of 1964. Title VII applies only to employers with 15 or more employees while FEHA applies to employers with 5 or more employees. Plus, the only protected characteristics under Title VII are:

• race,
• color,
• national origin,
• sex,
• religion,
• age,
• disability,
• genetic information, and
• citizenship status.

Other federal laws that provide employment discrimination protections include:

• Americans with Disabilities Act, which prohibits employers with 15 or more employees from discriminating based on physical and mental disabilities.
• Equal Pay Act of 1963, which mandates equal pay for equal work regardless of gender.
• Genetic Information Non-discrimination Act (GINA), which forbids employers with 15 or more employees from considering your genetic information when making employment decisions.
• Age Discrimination in Employment Act of 1967 (ADEA), which prohibits employers with 20 or more employees from discriminating against employees who are 40 or older.

In general, employees can choose whether to file employment discrimination cases in state or federal court depending on which one would be more beneficial to them. Some cases can be litigated in both state and federal courts.

Note that in some cases, such as if the discrimination occurred on federal property like a military base, you may be limited to filing in federal court.¹⁰

Can an attorney help?

Yes. You should consult with a skilled California labor law 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.

Additional Resources

For more information, refer to the following:

• What is Employment Discrimination – Summary by the Equal Employment Opportunity Commission (EEOC).
• Know Your Rights: Workplace Discrimination is Illegal – Info sheet from the U.S. Department of Labor (DOL).
• Discrimination, harassment, and retaliation – Brief guide by USA.gov.
• Types of Discrimination – Overview by the Centers for Disease Control and Prevention (CDC).
• 91% of workers have faced workplace discrimination—here’s what employees can do, expert says: ‘No. 1 is to speak up and document things’ – Article by CNBC.com.

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