It is against the law for an employer to discriminate against a person based on his or her marital status in California. Employees who are discriminated against based on their marital status can file a lawsuit against their employer for damages.
Below, our California labor and employment lawyers will answer the following frequently asked questions:
- 1. Can an employer in California refuse to hire someone because of marital status?
- 2. Can an employer ask if I am married during a job interview?
- 3. How do I know if I was discriminated against because of my marital status?
- 4. Should I file a complaint?
- 5. Can I sue my employer for discrimination?
- 6. What are my damages in an employment discrimination lawsuit?
- 7. Can my boss fire me for reporting marital status discrimination?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
In California, discrimination in employment based on marital status is against the law. Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate based on an applicant’s marital status or perceived marital status.1
Under the FEHA, it is an unlawful employment practice for an employer to treat an applicant or employee differently based on the employee’s marital status. This includes:
- Refusing to hire or employ
- Refusing to select a person for a training program
- Firing, bearing, or discharging an employee
- Discriminating against a person in compensation or in terms, conditions, or privileges of employment.2
Marital status could refer to whether an individual is married or not, has been married, or plans to get married. This includes:
- Currently married
- Married to a same-sex partner or opposite-sex partner
- Engaged to be married
- Married but separated
- Married but seeking a divorce
- Annulled marriage
- Plans to get married someday
- Plans to never get married
- Other marital states.3
There may be a number of reasons why an employer would want to know an applicant’s marital status in making job decisions. However, under California law, marital status is a protected class and employers are prohibited from making job-related decisions based on an employee’s marital status.4
Marital status discrimination may overlap with other protected employment discrimination classes, including race, religion, gender, or sexual orientation. For example, an employer may discriminate against an employee because they are in a same-sex marriage or the employee is engaged to someone of a different race. In these cases, discrimination may be based on multiple factors.5
The laws against marital status discrimination also apply to unions and labor organizations, which are prohibited from excluding, expelling, or restricting membership to a person based on marital status.6 Marital status discrimination prohibitions also apply to apprenticeship training programs and employment agencies.78
Employers in California are prohibited from asking certain types of questions during a job interview. This includes questions about an applicant’s race, religion, or marital status. An employer can only ask about protected class groups if the employer can demonstrate the characteristic is a bona fide occupational qualification. This applies to questions asked verbally or through an application form.
Employers may be permitted to collect certain applicant flow data for statistical purposes. However, this information cannot be used to discriminate against applicants or employees or limit employment opportunities.
For example, it is acceptable for an employer to ask for an applicant’s name and any prior names to check the employee’s work history. However, the employer cannot ask questions about an applicant’s name that speaks to his or her marital status, such as asking for the applicant’s “maiden name.”
Employers may also be able to ask questions about company policy for related employees. The employer may ask a job applicant if they have a family relative or spouse with the company if the company has a policy to refuse to place close relatives (including spouses) in a position that:
- Places close relatives in a direct supervisor-employee relationship
- The work involves a potential conflict of interest
- It reduces workplace problems of morale
- There are workplace hazards increased by employees in a close relationship.
However, if the company has no such policy, they cannot ask about the applicant’s marital status. Asking if the applicant is married, plans to get married, or has been divorced may be a discriminatory practice.
Other application or pre-employment inquiries that may be discriminatory may include:
- Spouse’s name
- Spouse’s birthplace
- Spouse’s age
- Spouse’s religion
- Questions regarding pregnancy
- Sexual orientation
- Spouse’s credit history
- Name and relationship of relative to be notified in case of an emergency
Many applicants in an interview situation are used to responding quickly to a question without thinking about whether the question may be discriminatory. An employer may make it seem like the question is part of casual conversation, small-talk, or unrelated to the job.
For example, Susan is applying for a job in a sales position with a pharmaceutical company. Susan’s interviewer, Cathy, says she is short on time and tells Susan they will do the interview over lunch. Cathy looks at Susan’s ring and asks, “Are you engaged? Congratulations! When is the wedding?”
This may seem like a casual conversation about a ring, but Cathy may be asking impermissible questions about Susan’s marital status. Cathy may have preconceived ideas that an engaged employee won’t be up for the job if the employee is going to be planning a wedding, taking a honeymoon, or having kids down the road. Cathy may be asking these questions in order to exclude Susan from the job.
Discrimination may be obvious; however, it is often much more subtle. An employer may just never contact you after an interview when the real reason they did not hire you is because of your marital status. Or an employer may have promoted another employee because the employer did not want to promote someone in a same-sex marriage.
It is illegal for an employer to do any of the following based on your marital status or non-marital status:
- Refuse to hire you
- Refuse to select you for a training program
- Demote you
- Fire you
- Pay you less
- Reduce your salary
- Deny equal pay
- Deny a promotion
- Deny reinstatement
- Deny benefits
- Force you to quit
- Harass you
- Discriminate against you in any way
An employee can look for signs of potential discrimination based on marital status. For example, an employee may notice a sudden and negative shift in his or her performance reviews after the employee mentioned they got engaged to be married.
Another example could include an employer always asking a certain group of workers (like unmarried employees) to work during the holidays because other employees have families and the holidays are not as important to single employees. An employer cannot subject employees to different working conditions based on their marital status.
Marital status discrimination is a violation of California law. The California Department of Fair Employment and Housing (DFEH) is the state agency that handles complaints of marital status discrimination in the workplace.
There is no federal protection for discrimination based on marital status. The Equal Employment Opportunity Commission (EEOC) enforces federal discrimination laws related to race, religion, sex, and other protected classes but not marital status.
If an employee wants to file a lawsuit for discrimination based on marital status in California, the employee is usually required to exhaust all administrative remedies first. This generally means the employee has to go through the DFEH complaint process before they can file a lawsuit. However, your attorney may file a complaint with the DFEH and obtain an immediate right to sue notice without waiting for the administrative process first.9
You can file a marital status discrimination complaint directly with the DFEH. 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, including where the individual did not learn about the unlawful practice until after the expiration of three years, or the employee was under the age of 18 at the time of the violation.10
The complaint can be filed online, by phone, or using the form from the DFEH website. The pre-complaint inquiry will initiate an intake interview with the DFEH and help determine whether a complaint can be accepted for investigation.
An investigator will contact the individual who filed the complaint within 60 days and discuss the details of the alleged marital status discrimination or harassment. If the DFEH representative determines the state will not handle the complaint, the matter will be dismissed, and the individual has the immediate right to sue their employer in court. If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer.
After the employer responds to the complaint, the DFEH will review the answer. In many cases, the DFEH will offer dispute resolution services, which provide a way for the employee and employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the DFEH will initiate an investigation.
A marital status discrimination investigation will determine whether there was a violation of California law. If the investigation finds there was a violation, the case will go the DFEH Legal Division. If there is no violation, the case will be closed. If the case is closed, the employee still has the immediate right to take their case to court.
The DFEH Legal Division generally requires the parties to go through mediation. Mediation is a type of alternative dispute resolution where a neutral mediator helps the parties come together to find a mutually agreeable solution. A benefit of mediation is that it allows the employer and employee to come up with their own way to settle the dispute, without leaving it all up to a judge to decide the outcome.
If the parties cannot settle the dispute through mediation, the DFEH could file a lawsuit on behalf of the employee against the employer. If the DFEH does not pursue the claim, it will close the investigation and the employee has 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 your marital status. Employees who are discriminated against because they are married, unmarried, divorced, or widowed can sue their employers for discrimination.11
An employee generally has to file a complaint with the DFEH before they can file a lawsuit in civil court. This requires obtaining a “right to sue” notice before your case can proceed to civil court.
You can request an immediate right to sue notice, without having to go through a complete DFEH investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by DFEH. Alternatively, you may also wait until the DFEH dismisses your case or finds no violation before taking your case to court.12
According to the DFEH, proceeding directly to court without an investigation by the DFEH 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.13
The complaint will be served upon your employer and anyone else named in the lawsuit as defendants. The defendants will respond to the complaint with a formal answer responding to the allegations, and the case may proceed through litigation. At any point before the end of a trial, the employer and employee can negotiate a settlement and settle the case out of court.
The damages available in an employment discrimination lawsuit will depend on the type of discrimination involved and the extent of the harm to the employee or applicant. This may include money damages, punitive damages, and equitable remedies.
Money damages from employment discrimination lawsuits may include losses from:
- Back pay with interest
- Front pay
- Higher income from a promotion
- Higher income from a raise
- Pension benefits
- Bonus payments
- Pain and suffering
- Emotional distress
Employees who have suffered discrimination based on marital status can also seek to have the employer reimburse their expenses for attorney’s fees and court costs.14
An employee may also eligible to receive punitive damages; however, punitive damages are generally rare in employment discrimination lawsuits. Punitive damages are a way to punish the behavior of the wrongdoer and act as a way to deter the employer or other employers from engaging in similar wrongful behavior in the future.
Another remedy in employment discrimination cases is reinstatement. If an employee has been fired based on their marital status, the court can require the employer to rehire the employee. However, the employee may not always want this remedy that requires them to return to the discriminatory workplace.
California workers cannot be retaliated against for reporting marital status discrimination or opposing workplace discrimination.15
The FEHA protects employees who are retaliated against for:
- Opposing workplace harassment
- Opposing employment discrimination against other employees based on marital status
- Reporting marital status discrimination or workplace harassment
- Assisting with or responding to DFEH investigations
- Filing a harassment or discrimination claim or lawsuit
An employer cannot take retaliatory action, including termination, against an employee for citing discrimination or filing a marital status discrimination lawsuit.16 Firing an employee for filing a harassment or discrimination claim is considered “wrongful termination”.
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 DFEH or file a lawsuit against the employer for retaliation or wrongful termination.
Call us for help…
For questions about California discrimination laws based on marital status, retaliation, or to discuss your case confidentially with one of our skilled California employment law attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- 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.”)
- California Code of Regulations 11053 — Definitions. (“(a) “Marital Status.” An individual’s state of marriage, non-marriage, divorce or dissolution, separation, widowhood, annulment, or other marital state.”)
- Fair Employment and Housing Act 12940, footnote 1 above.
- 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.”)
- 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.”)
- 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: (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to 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, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.”)
- 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.”)
- Fair Employment and Housing Act 12960; California Assembly Bill 9 (2019).
- 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.”)
- 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.”)
- 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.”)
- 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.”)
- 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.”)
- 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.”)