Under the California Fair Employment and Housing Act, it is against the law for employers to discriminate against a protected class of employees or job applicants. Common protected categories include race, religion, gender, sexual orientation, national origin, and age. Common types of discrimination include firing, demoting, or denying promotions to employees.
Here are five key things to know about California discrimination laws:
- You cannot be discriminated against at work because of your race, sexual orientation, or other protected characteristics.
- As a victim, you may be entitled to lost wages, emotional distress damages, punitive damages, and job reinstatement.
- Keep a record of all discriminatory incidents, such as emails, performance evaluations, or other evidence that supports your claim.
- Prior to filing a lawsuit, you need to file a complaint with the Civil Rights Department or the Equal Opportunity Employment Commission.
- It is illegal for employers to retaliate against you for filing discrimination complaints.
Below our California labor and employment attorneys discuss the following frequently asked questions about filing an employment discrimination lawsuit in California:
- 1. How do I report discrimination in California?
- 2. How do I prove discrimination at work in California?
- 3. Am I in a protected class in California?
- 4. Is it discrimination if I was never hired?
- 5. Do I have to file a complaint with HR first?
- 6. Do I have to file a complaint with the EEOC?
- 7. How long do I have to sue my employer?
- 8. What are my damages?
- 9. Can I lose my job for filing a workplace discrimination lawsuit?
- 10. What are the 4 types of discrimination?
- 11. What laws prohibit discrimination in California?
- 12. How is discrimination different from quid pro quo sexual harassment and hostile work environments?
If you have further questions after reading this article, we therefore invite you to contact us at Shouse Law Group.
Before you can file a lawsuit against an employer for employment discrimination in California, you generally have to first file your complaint with the Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH). An employee or applicant is usually required to exhaust all administrative remedies first. Therefore, this may mean that you have to go through the CRD complaint process before you can file a lawsuit.1
You can request an immediate right to sue notice, without having to go through a complete CRD or EEOC investigation. However, if you seek an immediate right to sue notice, your complaint will not be investigated by CRD. Alternatively, you may also wait until the CRD
- dismisses your case or
- finds no violation before taking your case to court.2
Filing a lawsuit
According to the CRD, proceeding directly to court without an investigation by the CRD is only advisable if you have an attorney. Your attorney can obtain a right to sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or another relevant county.3
Once you file the lawsuit, the “complaint” will be served upon
- your employer and also
- anyone else named in the lawsuit as a defendant.
The defendants can respond to the complaint with a formal answer responding to the allegations, and the case may then proceed through litigation.
Settlement v. trial
A civil employment discrimination lawsuit can take a long time to make its way through the courts, and could take years. However, as the case gets closer and closer to trial, the case is more likely to settle out of court. At any point before the end of a trial, the employer and you can negotiate a settlement before the court makes a ruling on the case.
If the lawsuit is not settled, it may go to trial and then be heard
- by a jury in a jury trial or
- in front of a judge in a bench trial.
Finally, the judge and jury will hear the evidence and the arguments from each side. The judge or jury will then
- make a finding for or against you on each claim, and also
- determine what damages to award.
Most workplace discrimination is subtle. Employers are aware that discrimination could lead to a lawsuit and take steps to make sure they don’t put anything in writing or say anything obvious to you. However, there may be signs of discrimination.
Proof of employment discrimination could involve showing that you are treated differently from other employees. It could also include sudden changes in attitude towards you when an employer finds out you are part of a protected group.
Signs of discrimination
These signs of possible discrimination may involve:
- Sudden changes in job performance reviews
- Exclusion from meetings and events
- Change in work duties or workload increases
- Reduced hours or reduced pay (no equal pay)
- Different rule enforcement involving workers of different backgrounds
- Failure of management to put a stop to racist or sexist jokes in the workplace
- Making fun of your accent or sexual orientation
- Failing to consider applicants with ethnic-sounding names
Finally, employers who are in the same protected class as you can still discriminate. For example, an African-American boss can discriminate against an African-American employee or applicant. A female employer can discriminate against a female applicant because of her gender.
Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against you based on protected characteristics, such as:
- religious creed,
- national origin,
- physical disability,
- mental disability,
- medical condition,
- genetic information,
- marital status,
- gender identity,
- gender expression,
- age (40 and over),
- sexual orientation, or
- military and veteran status.4
Note that workplace discrimination can typically be classified as either:
- Disparate treatment discrimination, where your employer is intentionally targeting you based on a protected characteristic; or
- Disparate impact discrimination, where a company-wide policy affects employees with certain protected characteristics, even if there is no discriminatory intent.
Both types of discrimination are unlawful.
Furthermore, discrimination in the workplace can affect anyone. It is not limited to minorities. Discrimination based on any of the above categories against anyone in California is unlawful in the workplace. Federal law also prohibits most types of discrimination in employment.
It is also unlawful discrimination if an employer discriminates against you based on your perceived race, sexual orientation, disability, or another protected group. Therefore, this means that even if an employer is wrong about your status, they can still be in violation of the law for discrimination.
Example: An employer thinks an applicant is gay because of the way the applicant dresses or acts during a job interview. The employer does not want to hire gay employees. The employee files a complaint against the employer for discrimination based on sexual orientation. If the applicant was not gay, the employer is still in violation of California laws for discrimination based on perceived sexual orientation.
Note that California’s anti-discrimination laws do not apply to volunteers, who are workers who do not get paid. (However, volunteers are protected by California’s harassment laws.)
When FEHA kicks in
Under the FEHA, it is an unlawful employment practice for an employer to discriminate against you in any aspect of employment. This includes:
- Refusing to hire or employ
- Refusing to select you for a training program
- Firing, bearing, or discharging you
- Discriminating against you in regard to compensation or in terms, conditions, or privileges of employment.5
Employment discrimination is prohibited in any aspect of employment or hiring, including:
- Refusing to provide a reasonable accommodation
- Refusing to engage in a timely, good faith interactive process with you when you are in need of a reasonable accommodation
- Refusing to hire
- Refusing to select for a training program
- Reduced pay
- Deny a promotion
- Deny reinstatement
- Deny benefits
- Forcing you to quit
- Assign different duties
- Discrimination in any way
Unions and labor organizations
The labor laws against employment discrimination are not limited to employers. Employment discrimination laws also apply to unions and labor organizations, which are prohibited from
- expelling, or
- restricting membership based on discriminatory categories.6
Furthermore, discrimination prohibitions also apply to apprenticeship training programs and employment agencies.
Employment discrimination laws also apply to job applications and interview situations.
Improper job application forms or questions during an interview may be a sign of potential employment discrimination violations. An employer may be violating employment laws when asking questions about your:
- Sexual orientation
- Maiden name
- Marital status
- Requiring a photograph
- Mental or physical disability
- Arrest record
California has a “ban the box” law that prohibits employers from asking you about your criminal history until after they have made a conditional offer of employment. Then if they run a background check, they can only withdraw their offer if:
- you have a conviction that has not been sealed or expunged, and
- an individualized assessment of your case indicates that your criminal history has a direct and adverse relationship with the specific duties of the job.7
If your employer wrongly discriminates against you based on your criminal record, you can file a complaint with the California Civil Rights Department (CRD).
Employers cannot ask you to take a medical or psychological exam
- if other prospective employees are not also required to take such exams, or
- if the examination is not job-related and consistent with business necessity.
However, an employer may ask you if you can perform the essential functions of the job and how you would perform the job duties.
After you receive a job offer, the employer can then condition the job on you passing a medical exam or answering medical questions only if all new employees in a similar job function have to answer these questions or take a medical exam.
Note that if you apply for a private sector job – and the employer hires someone else instead based on nepotism – you generally do not have grounds to bring a discrimination complaint even if you are far more qualified than the person hired.
However, nepotism is strictly prohibited in public sector jobs. Therefore, you have legal recourse if you were discriminated against based on nepotism.8
If an employer refused to hire you for discriminatory reasons, or an employer discriminates against you, there may be no need to go to human resources before filing a discrimination complaint. However, depending on the type of discrimination or harassment involved, it may be necessary or recommended to direct a complaint to a supervisor or human resources office before filing a lawsuit.
Harassment by non-supervisors
When workplace harassment involves a co-worker, or other non-supervisor, the employer may only be liable if the employer was negligent. This means that the employer must:
- Know or should have known that harassment was occurring; and
- The employer failed to take immediate and appropriate corrective action.9
Your harassment lawsuit will depend on
- whether the employer took proper measures to prevent harassment in the workplace and
- how the employer responded to complaints or signs of workplace harassment.
Employers must provide “reasonable accommodation” for you if you are unable to perform the essential functions of the job because of a
- medical condition,
- disability, or
Employers must also engage in a timely, good-faith interactive process with you if you are in need of a reasonable accommodation. This is to determine whether a reasonable accommodation would allow you to complete the necessary functions to perform the job.11
To conclude, if you need a reasonable accommodation to perform the job, you should communicate your needs to a supervisor or human resources representative. If the employer is not responsive or does not provide a reasonable accommodation, you may want to file a complaint with the EEOC or the CRD.
Employment discrimination can be a violation of both California state law and federal law. The Equal Employment Opportunity Commission (EEOC) enforces most federal employment discrimination laws. The California Civil Rights Department (CRD) is the state agency that handles most employment discrimination.
However, in many cases, California law offers broader protections for anti-discrimination cases than federal law. For example, California specifically prohibits
- transgender discrimination and
- discrimination based on sexual orientation.
The federal government has extended protection to gender orientation but those classes are not specifically referenced in federal anti-discrimination laws.
California law prerequisites
California laws may also apply to employers with at least 5 employees. However, certain federal laws only apply to employers with 15 or more employees. For these reasons, you may prefer to file an employment discrimination complaint with the CRD instead of the EEOC. Although, in many cases, a complaint can be crossed between both agencies.
If you want to file a lawsuit against your employer for employment discrimination in California, you are usually required to exhaust all administrative remedies first. This may mean that you have to go through the CRD complaint process before you can file a lawsuit. However, your employment attorney may file a complaint with the CRD and obtain an immediate right to sue notice without waiting for the administrative process first.12
Time limits for bringing legal action
You can file an employment discrimination complaint directly with the CRD. In general, you must submit a pre-complaint inquiry within three years of the last incident of discrimination, harassment, or retaliation. However, there are exceptions to this time limit, such as where you did not learn about the unlawful practice until after the expiration of three years.13
The complaint can be filed
- by phone, or instead
- by printing out and mailing the proper form from the CRD website.
The pre-complaint inquiry will initiate an intake interview with the CRD and help determine whether a complaint can be accepted for investigation.
The roadmap of a CRD complaint
An investigator will contact you within 60 days and discuss the details of the alleged discrimination or harassment. If the CRD representative determines the state will not handle the complaint,
- the matter will be dismissed, and
- you have the immediate right to sue your employer in court.
If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer. The complaint can also be dual-filed with the EEOC at this point.
After the employer responds to the complaint, the CRD will review the answer. In many cases, the CRD will offer dispute resolution services, which provide a way for you and the employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the CRD will initiate an investigation.
An employment discrimination investigation will determine whether there was a violation of California anti-discrimination laws.
- If the investigation finds there was a violation, the case will go to the CRD Legal Division.
- If there is no violation, the case will be closed.
If the case is closed, you still have the immediate right to take your case to court.
The CRD Legal Division generally requires you to go through mediation. If you cannot settle the dispute through mediation, the CRD could file a lawsuit on behalf of you against the employer. If the CRD does not pursue the claim, it will therefore close the investigation, and you have the immediate right to file a lawsuit against the employer.
Under California law, it is a civil right to have the opportunity to seek and hold employment without discrimination based on race, religion, sexual orientation, and other forms of unlawful discrimination. If you are discriminated against, you can file a lawsuit against your employer for unlawful discrimination.14
You have a limited time to file a lawsuit against your employer for employment discrimination violations. The time limit depends, in part, on how you handle the complaint. However, in some cases, these deadlines can be longer, or shorter, depending on the circumstances.
California discrimination law violations
In general, you need to file a complaint with the CRD within three years of the last incident of employment discrimination or retaliation. You have to get a Right-to-Sue notice before you can file a lawsuit in civil court. After the state issues you a notice of your right to sue or does not pursue your claim, you then have one year to file a lawsuit in state court.15
Federal discrimination law violations
If you are filing a federal employment discrimination complaint, you generally have 180 days to file a complaint. However, the EEOC deadline can be extended to 300 days if a state or local agency enforces employment discrimination laws on the same basis. For most employment discrimination claims in California, you would have 300 days to file an EEOC complaint.
In order to file a federal employment discrimination claim, you have to get a notice of right to sue. Then after the EEOC issues a notice of right to sue, you generally have 90 days to file a lawsuit in civil court.
Therefore, talk to a lawyer as soon as you can to make sure you have enough time to file your claim and take your case to court.
The damages available in an employment discrimination lawsuit will depend on a number of factors, including the extent of the discrimination, whether you were subject to any harassment, and the type of harm to you. This may include money damages, punitive damages, and equitable remedies.
Money damages from employment discrimination based 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
- Emotional distress
An employment discrimination lawsuit may also seek what the law calls equitable remedies. Equitable remedies may force an employer to take certain actions. For example, if you were not hired for a discriminatory reason, the court can require the employer to hire you. The court can also require the employer to make reasonable accommodations for you.
In most employment discrimination lawsuits, employment discrimination or harassment victims can also seek damages for
- the cost of attorney’s fees and also
- court costs.16
When the employer’s behavior is especially egregious or malicious, you may also be eligible to receive punitive damages. Punitive damages punish the wrongful behavior of the employer. Therefore, punitive damages also act as a way to deter the employer or other employers from engaging in similar wrongful behavior in the future.17
Your employer cannot retaliate against you for reporting workplace discrimination against other employees, applicants, or co-workers.18 The FEHA protects employees who suffer retaliation for:
- Opposing workplace harassment
- Opposing employment discrimination against other employees
- Reporting employment discrimination or workplace harassment
- Assisting with CRD investigations or government inquiries
An employer cannot fire you for filing a workplace discrimination or harassment lawsuit. Consequently, firing you for filing a workplace discrimination claim is a retaliatory action and a type of “wrongful termination”.19
In conclusion, if an employer retaliates against you for reporting FEHA violations or other employment law violations, you may then be able to file a complaint with the CRD for retaliation. You can also file a lawsuit against the employer for retaliation or wrongful termination.
In sum, there are typically four bases of workplace discrimination:
- Sex and gender;
- Age; and/or
The main state law that prohibit discrimination in California is the Fair Employment and Housing Act (FEHA). The main federal laws that prohibit discrimination throughout the U.S. are:
- Title VII of the Civil Rights Act of 1964;
- Equal Pay Act;
- Age Discrimination Act;
- Genetic Information Nondiscrimination Act of 2008; and
- American With Disabilities Act (ADA).20
Collectively, these laws legislate against sex, race, age, and also disability discrimination.
12. How is discrimination different from quid pro quo sexual harassment and hostile work environments?
|Category||Workplace Discrimination||Quid Pro Quo Sexual Harassment||Hostile Work Environment|
|Definition||Treating you unfavorably or differentially based on your protected characteristics, such as race, sex, religion, disability, or age, in terms of employment decisions or conditions.||A situation where a person in a position of power demands sexual favors or engages in unwelcome sexual advances in exchange for employment benefits or opportunities.||A workplace environment where pervasive or severe unwelcome conduct based on a protected characteristic (usually sex or gender) creates an intimidating or offensive working atmosphere.|
|Type of Conduct||Treating you unfavorably based on your protected characteristics, such as hiring, firing, promotions, pay, job assignments, or terms and conditions of employment.||Unwelcome sexual advances, requests for sexual favors, or demands for sexual activity in exchange for employment benefits, promotions, or other favorable treatment.||Offensive behavior, including sexual remarks, explicit jokes, unwelcome touching, or displaying sexually explicit material that creates a hostile or abusive atmosphere.|
|Legal Consequences||Violation of anti-discrimination laws, potential for legal action against the employer.||Violation of anti-sexual harassment laws, potential for legal action against the harasser and employer.||Violation of anti-discrimination laws and potential for legal action against the employer.|
|Examples||Refusing to hire or promote you based on your race, gender, religion, disability, or other protected characteristics.||A supervisor demanding sexual favors from you in exchange for a promotion or job security.||Inappropriate comments, sexual jokes, unwelcome touching, or displaying explicit material that makes the workplace hostile.|
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.
- Fair Employment and Housing Act 12960. (“(b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint.”). Note that employers must have five or more employees to be subject to discrimination claims. California Government Code 12926; Cal. Code of Regs., tit. 2, 11019 & 11034. In contrast, employers of any size can be subject to harassment claims. California Government Code 12940. See also: Ducksworth v. Tri-Modal Distribution Servs., (2020) 47 Cal.App.5th 532; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479; Surrell v. Cal. Water Serv. (9th Cir. 2008) 518 F.3d 1097; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718; Page v. Superior Court (1995) 31 Cal.App.4th 1206; Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338; see also Government Codes 12925 & 12930.
- See also Fair Employment and Housing Act 12965 — Unlawful Practices. (“(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.”). See also, for example, Department of Fair Employment & Housing v. Superior Court (2020), 269 Cal. Rptr. 3d 9.
- Also see Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) … The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.”). Also see Pollard v. E. I. du Pont de Nemours & Co. (2001) 532 U.S. 843; Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138; Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625; and finally Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837.
- See also Fair Employment and Housing Act 12940 — Unlawful Practices. (“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: (a) For an employer, because of the 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 of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”). Also see Americans with Disabilities Act (ada.gov); also see Title VII of the Civil Rights Act of 1964; see also Verceles v. Los Angeles Unified School Dist., (Court of Appeal of California, Second Appellate District, Division Seven, 2021) 63 Cal. App. 5th 776, 278 Cal. Rptr. 3d 246; see also, re. political discrimination, California Labor Code sections 96, 1101, 1102, 1102.5, 1103; also see, re. language discrimination, California Government Code 12951; and finally Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625 (re. employers employing relatives). See also Lin v. Kaiser Foundation Hospitals (Cal.App. 2023) . Price v. Victor Valley Union High School Dist. (Cal.App. 2022) .
- Also see Fair Employment and Housing Act 12940, footnote 1 above. See also Faragher v. City of Boca Raton (1998) 524 U.S. 775; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511; McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590; Nichols v. Azteca Rest. Enters. (9th Cir. 2001) 256 F.3d 864; and finally Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.
- See also Fair Employment and Housing Act 12940 — Unlawful Practices. (“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: (b) For a labor organization, because of the 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 of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the 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 of the person in the election of officers of the labor organization or in the selection of the labor organization’s staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.”). See also, for example, Arnold v. Dignity Health (2020), 266 Cal. Rptr. 3d 253; Alejandro v. ST Micro Elecs., Inc. (N.D.Cal. 2015) 129 F. Supp. 3d 898; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297; and finally Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121. Also see Fair Employment and Housing Act 12940 — Unlawful Practices. (“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: (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the 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 of the person discriminated against.”)
- Government Code section 12952.
- California Constitution Art. VII, section 1(b); 2 California Code of Regulations (CCR or Cal. Code Regs.) 87.
- Also see Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions. (“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: . . . (j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. 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. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. (2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment. (3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. . . . (5) For purposes of this subdivision, “a person providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.”)
- See also Fair Employment and Housing Act 12940 — Unlawful Practices. (“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: (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”)
- Also see Fair Employment and Housing Act 12960. (“(b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint.”). See also Cal. Code Regs., tit. 2 10002–10034.
- Also see Fair Employment and Housing Act 12960; Also see California Assembly Bill 9 (2019).
- See also Fair Employment and Housing Act 12921. (“(a) The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status is hereby recognized as and declared to be a civil right.”). Also see Bostock v Clayton County, U.S. Supreme Court (2020) 590 U.S. _. See also Supreme Court says federal law protects LGBTQ workers from discrimination, CNN (June 15, 2020). Also see Pollock v. Tri-Modal Distribution Services, Inc., (2021) 491 P.3d 290. See also Foroudi v. The Aerospace Corp., (Court of Appeal of California, Second Appellate District, Division Eight, 2020) 57 Cal. App. 5th 992, 271 Cal. Rptr. 3d 803; Government Code 12920; and finally Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629.
- Also see Government Code 12960 GC — Procedure for prevention and elimination of unlawful employment practices; application of article; complaints. (“(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . .”). Also see 42 U.S.C. § 1981a. California Civil Code 3287 (re. interest payments on lawsuit damages).
- See also Fair Employment and Housing Act 12965 — Unlawful Practices. (“(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.”). See also California Civil 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.”).
- Also see California Civil Code 3294 — Exemplary Damages. (“(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.”). Also see, for example, Monge v. Superior Court (1986), 176 Cal. App. 3d 503.
- See also Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions FEHA wrongful termination / retaliation. (“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: . . . (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”)
- Also see California Code of Regulations (CCR) tit. 2, § 11021. (“a) FEHA Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment that the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Council or Department or its staff. (1) Opposition to practices prohibited by the Act includes, but is not limited to: (A) Seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (B) Assisting or advising any person in seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (C) Opposing employment practices that an individual reasonably believes to exist and believes to be a violation of the Act; (D) Participating in an activity that is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act.”)
- Also see Government Codes 12900 – 12996. 42 U.S.C. 12101. 29 U.S.C. 206(d). See also 42 U.S.C. 2000e. Re. immigration-based discrimination, also see: California Labor Code 244, 1019.1, & 1171.5; California Vehicle Code 1280.19; 8 U.S.C. § 1324a. Re. lactation-break discrimination, see also California Labor Code 1030–1033; 29 U.S.C. § 207. Re. religious-preference discrimination, see also Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147; California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004; Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345; Fowler v. Rhode Island (1953) 345 U.S. 67; Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39. Re. disability-based discrimination, see also California Labor Code 1191 & 1191.5; Cal. Code Regs., tit. 2, § 11065 & 11068; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215; Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34; Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431; Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570; Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019. Re. pregnancy-related discrimination, also see Government Code 12945; Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331. Re. marital-status discrimination, also see Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719. Re. gender-based discrimination, see also Government Coe 12949. Re. racial discrimination, also see McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273. Re. age discrimination, see also 29 U.S.C. 623 & 631; Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762. Re. religious associations, see also Government Code 12926.2. Re. nonprofits, also see Government Code 12926.05; Cal. Code of Regs., tit. 2, 11008. Re. unpaid workers, see also Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143. Re disparate treatment, see also Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297; Int’l Bhd. of Teamsters v. United States (1977) 431 U.S. 324; CACI No. 2500; CACI No. 2502. Re. temp workers, see also Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612; Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168. Re. independent contractors, see also California Labor Code 3353. Re. agents, see also California Civil Code 2295. Also see Government Code 12952 (re. ban the box). See also: Roby v. McKesson Corp. (2009) 47 Cal.4th 686. Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55; Reno v. Baird (1998) 18 Cal.4th 640; Laird v. Capital Cities/Abc (1998) 68 Cal.App.4th 727; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158; Le Bourgeois v. Fireplace Mfg. (1998) 68 Cal.App.4th 1049; Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474; 42 U.S.C. 12101; 29 U.S.C. 206. 29 U.S.C. 621; California Federal Sav. & Loan Ass’n v. Guerra (1987) 479 U.S. 272. 29 U.S.C. § 630; 42 U.S.C. § 12111; California Constitution Art. I, 16; California Code of Civil Procedure 618; Fed. R. Civ. Proc., rule 48; Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472; and finally 29 C.F.R. § 1630.2.