Work place discrimination is illegal under both federal and California law. Congress passed Title VII in 1964. About 20 years later, the California legislature passed the Fair Employment and Housing Act (FEHA). It actually combined previous California anti-discrimination laws that predated Title VII. They both make adverse employment actions (termination, demotion, failure to hire, etc.) illegal when an employer takes the adverse action because the employee is a member of a protected class. In most cases Title VII and FEHA work together. In fact, very often an employee can sue under either law.

For the majority of California employees, FEHA provides greater protection than Title VII. For instance, Title VII only protects the following classes: race, color, national origin, religion, and sex. In contrast, FEHA has a far greater list of protected classes: Age, Ancestry, Color, Religion, Denial of Family and Medical Care Leave, Disability, Marital Status, Medical Condition, Genetic Information, Military and Veteran Status, National Origin, Race, Sex, Gender, Gender Identity, and Gender Expression, Sexual Orientation. To be fair, other federal laws protect some of the FEHA classes. For instance, the ADA is the federal law that protects disabled persons.

Another advantage of FEHA is it does not restrict damages. Under FEHA, compensatory and punitive damages are unlimited. Depending on the size of the business, federal law limits them to amounts between $50,000 and $300,000.

FEHA also requires more employers to follow its requirements than does Title VII. FEHA applies to employers who only have 5 employees. Harassment laws apply to all employers, even if they only have one employee. In contrast, Title VII only applies to employers who have 15 or more employees.

Courts decisions cause work place discrimination laws to constantly evolve. For instance, a series of court cases over the past few decades have broadened and strengthened employer liability for third party discrimination. Both federal and state laws clearly require employers to protect employees from supervisors and co-workers who discriminate. On the other hand, over the years, case law has employers must protect its employees from discrimination at the hands of non-employees who interact with employees during the work day. The cases say that because the employer controls the conditions of work, employers have a duty to protect employees from unwanted discrimination by non-employees.

In other instances, the law has become more restrictive. For instance, in California the courts have made it harder for employees to sue when an employer may have had a mixed motive for firing an employee. A mixed motive case is one where the employer has more than one potential reason for terminating, demoting, or taking other adverse action against an employee. At least one of the reasons is based on discrimination, and at least one is a legitimate business reason for taking the action. Typically, the employee claims that the employer discriminated against him or her under FEHA, and the employer claims that it had a legitimate, non-discriminatory reason for punishing the employee. In the past, lawyers who represented employees said that an employee only needed to show that the discriminatory reason was a factor that could have motivated the action. Now, the California Supreme Court has made clear that the discriminatory reason must be a “substantial” factor that caused the employer to act. Further, even if the employee proves that discrimination was a substantial factor, the law allows the employer to present facts to show that it still terminated the employee for a non-discriminatory reason. If an employer can convince a judge or a jury of that, then the employee will not be able to collect compensatory or punitive damages under FEHA. Injunctive relief and attorneys’ fees are still available though.

Work place discrimination laws are very complicated to apply. Employers should make sure they have expertise at their disposal to help analyze each situation as it arises. Employees often need help analyzing the law to understand whether they have suffered discrimination or harassment as those terms are defined under the law.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)