The Fair Employment and Housing Act (FEHA) is a California statute which prohibits employment and housing discrimination. This statute applies to public and private employers, labor organizations and employment agencies.
Under FEHA, it is illegal for employers of five or more employees to discriminate against job applicants and employees because of a protected category. It is also illegal to retaliate against job applicants and employees because they asserted their rights under the law.
Under FEHA, harassment is prohibited in all workplaces, including those with fewer than five employees and the statute prohibits harassment based on a protected category against an employee, an applicant, an unpaid intern or volunteer or a contractor.
Under California law, individuals are protected from illegal discrimination by employers based on the following categories:
- Ancestry and national origin;
- Race and color;
- Religion and creed;
- Age (over 40);
- Mental and physical disability;
- Sex and gender;
- Sexual orientation;
- Gender identity and expression;
- Medical condition and genetic information;
- Marital status; and/or
- Military and veteran status.
The Fair Employment and Housing Act (FEHA) and other civil rights laws in California are enforced by the California Department of Fair Employment and Housing (DFEH). The DFEH is the largest state civil rights agency in the country.
Besides FEHA, the DFEH also enforces other civil rights laws in the state such as the Unruh Civil Rights Act, the California Family Rights Act (CFRA), the Disabled Persons Act and the Ralph Civil Rights Act. In addition, the DFEH also has other responsibilities such as:
- Ensuring that employers and business establishments understand their legal responsibilities by conducting public outreach and training;
- Facilitating mediation and dispute resolution;
- Investigating complaints of discrimination; and/or
- Enforcing civil rights laws through prosecution.
Claims relating to a violation of any of the laws enforced and protected by the DFEH should be reported directly to them. They have a detailed complaint process which allows individuals the right to have the government investigation any issues.
If the individual wants to bypass the complaint process, then they must request a Right to Sue letter from the DFEH. The letter will give them the opportunity to file a claim in civil court, and without it their lawsuit would be dismissed.
Another important statute in the California which protects individuals from discrimination is the California Family Rights Act (CFRA). The CFRA requires employers of 50 or more employees to provide job-protected leave for these situations:
- The birth of a child;
- For the placement of a child in the employee’s family for adoption or foster care;
- For the serious health condition of the employee’s child, parent or spouse; and
- For the employee’s own serious health condition.
Under the CFRA, employers of five or more employees are required to provide up to four months of disability leave for an employee who is disabled because of pregnancy, childbirth or a related medical condition.
Also, it is mandatory for employers of 50 or more employees to provide sexual harassment training to supervisory employees. The DFEH accepts complaints when an individual believes that an employer has not complied with these training and education requirements.
The California laws which prohibit discrimination apply to different business practices such as advertisements, applications, screening and interviews, hiring, transferring, promoting, terminating and separating employees, working conditions which include compensation as well as participating in a training or apprenticeship program, employee organization or union. Under state law, victims of employment discrimination are provided a variety of remedies such as:
- Back pay (past lost earnings);
- Front pay (future lost earnings);
- Out-of-pocket expenses;
- Reasonable accommodations;
- Damages for emotional distress;
- Policy changes;
- Punitive damages; and/or
- Attorney’s fees and costs.
FEHA was recently amended and it now includes many important additions. Among the most important additions are written policy requirements which state that California employers with five or more employees have an affirmative duty to take “reasonable” steps to prevent and correct discrimination and harassment and that employers are required to create detailed written policies for preventing harassment, discrimination and retaliation. These policies must:
- List all protected groups under the FEHA;
- Instruct supervisors to report all complaints;
- Let employees to report to someone other than a direct supervisor;
- State that confidentiality will be maintained by the employer to the extent possible;
- State that there will be a fair, complete and timely investigation of all complaints;
- State that if any misconduct is found, then remedial action will be taken;
- State that there will be no retaliation against employees for complaining and participating in an investigation; and
- State that unlawful behavior by supervisors, co-workers and third parties is prohibited under the FEHA.
If you feel that you have been a victim of discrimination, it is important to consult with a local California employment attorney. Your attorney can guide you through different options such as filing a complaint with the DFEH or pursuing a private lawsuit.