It is against the law for an employer to discriminate against you based on your marital status in California. If you are discriminated against based on your marital status, you can file a lawsuit against your employer for damages.
Below, our California labor and employment lawyers will answer the following frequently asked questions:
- 1. Can an employer refuse to hire me 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. How do 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?
Employers in California are prohibited from asking certain types of questions during a job interview, including questions about an applicant’s or marital status.
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
1. Can an employer refuse to hire me because of my marital status?
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 your marital status or perceived marital status.1
Under the FEHA, it is an unlawful employment practice for an employer to treat you differently based on your marital status. This includes:
- Refusing to hire or employ
- Refusing to select you for a training program
- Firing, bearing, or discharging you
- Discriminating against you in compensation or in terms, conditions, or privileges of employment.2
Marital status could refer to whether you are married or not, have been married, or plan to get married. This includes:
- Currently married
- Divorced
- Married to a same-sex partner or opposite-sex partner
- Engaged to be married
- Married but separated
- Married but seeking a divorce
- Widowed
- 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 your 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 your marital status.4
Marital status discrimination may overlap with other protected employment discrimination classes, including
- race,
- religion,
- gender, or
- sexual orientation.
An example is if an employer discriminates against you because you are in a same-sex marriage or because your spouse is of a different race.5
The laws against marital status discrimination also apply to unions and labor organizations, which are prohibited from excluding, expelling, or restricting membership to you based on marital status.6 Marital status discrimination prohibitions also apply to
- apprenticeship training programs and
- employment agencies.78
2. Can an employer ask if I am married during a job interview?
Employers in California are prohibited from asking certain types of questions during a job interview. This includes questions about your
- 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 you or
- limit employment opportunities.
For example, it is acceptable for an employer to ask for your name and any prior names to check your work history. However, the employer cannot ask questions about your name that speaks to your marital status, such as asking for your “maiden name.”
Employers may also be able to ask questions about company policy for related employees. The employer may ask you if you 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 your marital status. Asking if you are married, plan to get married, or have been divorced may be a discriminatory practice.
Other application or pre-employment inquiries that may be discriminatory may include your:
- 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.
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.
3. How do I know if I was discriminated against because of my marital status?
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 in violation of The California Equal Pay Act
- Deny a promotion
- Deny reinstatement
- Deny benefits
- Force you to quit
- Harass you
- Discriminate against you in any way
You can look for signs of potential discrimination based on marital status. For example, you may notice a sudden and negative shift in your performance reviews after you mentioned you 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 you to different working conditions based on your marital status.
4. How do I file a complaint?
Marital status discrimination is a violation of California law. The California Civil Rights Department (CRD) – formerly the 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 you want to file a lawsuit for discrimination based on marital status in California, you are usually required to exhaust all administrative remedies first. This generally means you have to go through the CRD complaint process before you can file a lawsuit. However, your attorney may file a complaint with the CRD 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 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, including where
- you did not learn about the unlawful practice until after the expiration of three years, or
- you were under the age of 18 at the time of the violation.10
The complaint can be filed
- online,
- by phone, or
- by using the 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.
An investigator will contact you within 60 days and discuss the details of the alleged marital status 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.
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 your employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the CRD 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 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 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 you to come up with your 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 CRD could file a lawsuit on behalf of you against your employer. If the CRD does not pursue the claim, it will close the investigation, and you have the immediate right to file a lawsuit against your employer.
5. Can I sue my employer for discrimination?
Under California law, it is a civil right to have the opportunity to seek and hold employment without discrimination based on your marital status. If you are discriminated against because you are married, unmarried, divorced, or widowed, you can sue your employers for discrimination.11
You generally have to file a complaint with the CRD before you 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 CRD investigation. However, if you receive a 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.12
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.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 you can negotiate a settlement and settle the case out of court.
6. What are my damages in an employment discrimination lawsuit?
The damages available in an employment discrimination lawsuit will depend on the type of discrimination involved and the extent of the harm to you. 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
- Benefits
- Pension benefits
- Bonus payments
- Pain and suffering
- Emotional distress
If you suffered discrimination based on marital status, you can also seek to have your employer reimburse your expenses for
- attorney’s fees and
- court costs.14
You 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
- deter the employer or other employers from engaging in similar wrongful behavior in the future.
Another remedy in employment discrimination cases is reinstatement. If you have been fired based on your marital status, the court can require the employer to rehire you. However, you may not always want this remedy that requires you to return to the discriminatory workplace.
7. Can my boss fire me for reporting marital status discrimination?
You cannot be retaliated against for reporting marital status discrimination or opposing workplace discrimination.15
The FEHA protects you if you 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 CRD investigations
- Filing a harassment or discrimination claim or lawsuit
An employer cannot take retaliatory action, including termination, against you for citing discrimination or filing a marital status discrimination lawsuit.16 Firing you for filing a harassment or discrimination claim is considered “wrongful termination”.
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 or
- file a lawsuit against your employer for retaliation or wrongful termination.
Legal References:
- 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.”). See, for example, Koebke v. Bernardo Heights (Country Club Supreme Court of California, 2005) 36 Cal. 4th 824; Hope Internat. University v. Superior Court (Court of Appeal of California, Fourth Appellate District, Division Three, 2004) 119 Cal. App. 4th 719; Smith v. Fair Employment & Hous. Com (Supreme Court of California, 1996) 12 Cal. 4th 1143.
- Same.
- 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.
- Same.
- 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.”)