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California’s Fair Employment & Housing Act (“FEHA”) – What does it protect you against?

February 3, 2016

California’s Fair Employment & Housing Act (“FEHA”) protects employees from illegal discrimination and harassment in employment based on race, color, religion, sex (pregnancy or gender), sexual orientation, marital status, national origin, ancestry, mental and physical disability (including HIV/AIDS), medical condition (cancer/genetic characteristics), age (40 and above), denial of family and medical care leave, and denial of pregnancy disability leave.

FEHA protects employees that are perceived to have any of the above protected characteristics. Physical and mental impairment includes conditions that are disabling, potentially disabling, or perceived as disabling.

Photo credit: mkrigsman

FEHA also requires employers to 1) reasonably accommodate an employee or job applicant’s religious beliefs and practices, 2) reasonably accommodate employees or job applicants, with a disability, in order to enable them to perform the essential functions of a job, 3) provide up to four months leave to employees due to pregnancy, childbirth, or a related medical condition, and 4) provide reasonable accommodations requested by an employee, on the advice of her health care provider, related to her pregnancy, childbirth, or related medical conditions.

FEHA’s protection against harassment extends to independent contractors in addition to employees. California courts have held that harassment is unwelcome conduct that must be severe or pervasive. This severe or pervasive conduct must relate to one or more of the protected categories listed above i.e. race, gender, sexual orientation etc. Forms of harassment can include, but are not limited to, verbal or written comments, drawings, photos, emails, physical touching, intimidation, or gestures.

It is important to note that under FEHA, supervisors or other co-employees cannot be sued individually for discrimination. Supervisors or other co-employees are, however, personally liable for any type of prohibited harassment under FEHA. [Government Code section 12940 (j)(3)].

FEHA further prohibits retaliation against a person who opposes, reports, or assists another person in opposing unlawful discrimination.

Does FEHA apply to my employer and am I protected?

FEHA typically applies to any employer regularly employing five or more persons. Labor organizations, employment agencies, and apprenticeship programs are also subject to FEHA’s provisions.

There is an important exception to FEHA’s five-employee requirement: The prohibition against harassment applies to anyone who regularly employees at least one person or regularly receives the services of at least one independent contractor.

In addition, all governmental employers are covered under the FEHA regardless of size.

How do I enforce my rights under FEHA?

To enforce your rights under FEHA, the law requires that you first exhaust all administrative remedies. In order to exhaust your administrative remedies there are two options:

1) File a complaint with the Department of Fair Employment and Housing (“DFEH”). The DFEH will then proceed to investigate your claim, and attempt to mediate your case; or

2) Request an immediate “right to sue” notice that allows you to proceed with a lawsuit in civil court.

We strongly suggest you talk to an attorney about your specific situation, and request an immediate right to sue notice from DFEH’s website. You can request a “right to sue” notice by clicking HERE.

The DFEH receives a multitude of complaints on a weekly basis. As a government agency, they are hindered by backlog issues, resources, time, and manpower in aggressively pursuing each case they investigate. Accordingly, their findings often yield unsatisfactory results for aggrieved employees.

Filing a civil complaint in California Superior Court offers additional advantages that are not available if the DFEH litigates your case in a public hearing before the Fair Employment and Housing Commission (FEHC). These advantages include 1) no limit on emotional distress damages, 2) possible punitive damages against the employer, and 3) the prevailing party may recover their reasonable attorney’s fees, expert witness fees and costs.

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