practice areas

 

Fair Employment and Housing Act (FEHA)

Discrimination Based on Protected Characteristics

The California Fair Employment and Housing Act prohibits employment discrimination on the basis of the following protected characteristics: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, and sexual orientation. Unlawful discrimination can take different forms, such as refusing to hire or employ a person; barring or discharging a person from employment; or discriminating against a person in compensation or in the terms, conditions, or privileges of employment.

With regards to disability discrimination in particular, an employer has a duty to provide a reasonable accommodation for an applicant or employee with a known mental or physical disability. Furthermore, an employer also has a duty to engage in a good faith interactive process with a disabled employee in order to determine effective reasonable accommodations.

The FEHA also prohibits other types of unlawful employment practices that are based on an employee's protected characteristic(s). For example, the FEHA makes it unlawful for an employer (or any other person) to harass applicants or employees because they possess one or more of the protected characteristics. Moreover, the FEHA requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring. Additionally, the FEHA prohibits retaliation. Thus, employers may not discharge, expel, or otherwise discriminate against individuals because they opposed practices that violate the FEHA, filed a complaint, or testified, assisted, or participated in any manner in proceedings or hearings under the FEHA.


Leaves of Absence

The California Family Rights Act ("CFRA") is part of the FEHA, and provides for the following types of leaves of absence: 1) for the birth of an employee's child; 2) to care for a child, spouse, or parent with a serious health condition; or 3) to care for the employee's own serious health condition. Certain factors determine whether or not an employee is covered by the CFRA, including the size of the employer and the employee's duration of employment.

A health condition is considered serious if the condition causes the employee to be unable to work at all or unable to perform one or more of the essential functions of his or her position. The CFRA entitles eligible employees to up to 12 workweeks of leave in a 12-month period. If the employee qualifies for a CFRA leave, then the employee has certain reinstatement rights regarding the return to his or her position. Furthermore, employers may not interfere with the exercise of an employee's leave rights, or discriminate or retaliate against employees who exercise their leave rights.

The California pregnancy disability leave law ("PDLL"), which is a part of the FEHA, also provides for leaves of absence. Under the PDLL, an employee may be entitled to up to 4 months of leave for disability due to an employee's pregnancy, childbirth, or related medical condition. As with the CFRA, an employee returning from a pregnancy disability leave has reinstatement rights to the same position or to a comparable position. A pregnant employee may also have the right to transfer to a different position for the duration of her pregnancy. It is unlawful for an employer to fail to provide an employee with a pregnancy disability leave. Furthermore, an employer may not refuse to promote, discharge, discriminate against, or retaliate against any person for exercising the right to take a pregnancy disability leave or transfer, or for giving information or testimony in connection with any investigation or inquiry into an alleged violation of the pregnancy disability leave law.


Damages Under the FEHA

The remedies for violation of the FEHA may include one or more of the following: backpay; reinstatement or front pay; injunctive relief; attorney's fees and costs; compensatory damages for pain and suffering; and punitive damages (where a private employer acts with malice or reckless indifference to an individual's rights). The same types of damages are available for violations of the FEHA, the CFRA, and the PDLL.



Backpay

Backpay is the amount of money a plaintiff would have earned in the absence of the discriminatory conduct, measured from the time of the adverse action until the date of trial. Backpay awards normally encompass lost wages or salary, and other benefits lost as a result of the discrimination.

Reinstatement or "Front Pay"

In order to compensate an employee for future damages, a court may award reinstatement or front pay for future wages. Although reinstatement is the preferred remedy, it is oftentimes not feasible due to the deterioration of the relationship between the employer and the plaintiff, or due to the psychological injury suffered by the plaintiff. "Front pay" is money awarded for lost compensation between judgment and reinstatement, or in lieu of reinstatement.

Compensatory Damages

Compensatory damages are awarded to a plaintiff to redress emotional harm, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary losses. Damages for emotional or mental distress are the most common type of compensatory damages claimed by a plaintiff. These damages are not subject to easy estimation, and can vary greatly based on the facts of each individual case.

Punitive Damages

Punitive damages are available against nongovernmental (private) employers if a plaintiff can show by strong enough evidence that the defendant was guilty of oppression, fraud, or malice when it engaged in the unlawful conduct. If the employer is a corporate entity, then the plaintiff must also show other factors regarding knowledge, authorization or ratification, or guilt in order to establish liability for punitive damages. Even where the factors exist to establish liability for punitive damages, these damages are not subject to easy estimation.

Attorney's Fees and Costs

The FEHA provides the court with discretion to award reasonable attorney's fees to the prevailing party. Since the award to the prevailing party is discretionary, courts generally do not require a losing plaintiff to pay the employer's attorney's fees and costs, unless the plaintiff's lawsuit is found to be frivolous, unreasonable, or without foundation as commenced or maintained.

Interest

Under the FEHA, plaintiffs may seek prejudgment interest pursuant to the Civil Code.


Claims

The following are the types of FEHA claims that our office handles. Also listed are other types of whistleblowing and wrongful termination claims that our office handles:

  • Age Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits employment discrimination based on age. Employers may not discharge an employee or discriminate against an employee in compensation or in the terms, conditions, or privileges of employment, based on the employee's age. Employers also may not engage in other types of unlawful conduct due to an employee's age, such as retaliation or harassment. In order to qualify for protection under the law, the employee must have reached his or her 40th birthday.

  • Disability Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits employment discrimination based on physical disability and/or mental disability. The terms "physical disability" and "mental disability" are broad, and encompass a wide variety of ailments. Employers may not discriminate against, retaliate against, or harass employees who suffer from such disabilities. In addition, employers have a duty to accommodate an employee's known disability, and also have a duty to meet with an employee to determine an effective accommodation.

  • Medical Condition Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits employment discrimination based on medical condition. The term "medical condition" is specific, and means cancer or genetic characteristics (genes known to cause a disease, or inherited characteristics known to cause or increase the risk of developing a disease). Employers may not discriminate against employees who suffer from such conditions.

  • Sex/Gender Discrimination – California law, including the California Fair Employment and Housing Act ("FEHA"), bars adverse employment actions based on gender or stereotypes associated with gender. This type of discrimination is wide-ranging and covers numerous different types of situations, such as claims based on pregnancy, gender identity, and dress and grooming standards.

  • Sexual Orientation Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits discrimination against any person based on his or her sexual orientation, which means heterosexuality, homosexuality, or bisexuality. The law also prohibits discrimination against transsexuals (people who by their identity, appearance, or behavior appear to be of a different gender than their gender at birth).

  • Pregnancy Discrimination – Under the California Fair Employment and Housing Act ("FEHA"), pregnancy discrimination is a type of sex discrimination. This type of discrimination can be based on pregnancy, childbirth, or related medical conditions. In addition, an employer must provide a reasonable accommodation requested by an employee on the advice of her health care provider for conditions related to pregnancy, childbirth, or related medical conditions. 

  • Marital Status Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits discrimination based on marital status. The applicable state regulation defines marital status as "(a)n individual's state of marriage, non-marriage, divorce or dissolution, separation, widowhood, annulment, or other marital state."

  • Race and Color Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits discrimination based on race and color. Race and color are not the same, and thus the color of one's skin can be the basis of a discrimination claim, even if alleged against someone of the same race. The term "race" has a broad interpretation and means classes of people identifiable because of their ancestry or ethnic characteristics.

  • National Origin/Ancestry Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits discrimination on the basis of national origin and ancestry; these terms have been found to be synonymous. National origin means the country where a person was born, or, more broadly, the country from which his or her ancestors came. Employment discrimination may also be prohibited where it is based on the country of an individual's birth, his or her ancestry, or his or her membership in a collective nationality group.

  • Religious Discrimination – The California Fair Employment and Housing Act ("FEHA") prohibits discrimination based on religion. In addition, the law requires employers to reasonably accommodate their employees' religious beliefs that are associated with traditional religions, as well as religious observances and practices.

  • Sexual Harassment/Quid Pro Quo/Hostile Work Environment – The California Constitution prohibits employment discrimination and harassment by both public and private employers based on sex. In addition, the California Fair Employment and Housing Act ("FEHA") prohibits discrimination on the basis of sex, and prohibits harassment and retaliation based on sex or sexual orientation. Sexual harassment claims can be wide-ranging, and typically involve either a request for sexual favors linked to job benefits (quid pro quo), or unwelcome sexual advances that are severe or pervasive enough to alter the conditions of employment and create a work environment that qualifies as hostile or abusive (hostile work environment). Current California case law has largely done away with distinctions between quid pro quo harassment and hostile work environment harassment, and instead classifies these claims broadly as harassment. Under harassment claims, not only may an employer be liable, but an individual harasser may be personally liable, as well. In addition, an employer may be liable for the failure to take appropriate corrective action where the employer knows that an employee has been subjected to harassing conduct.

  • Other Harassment (Race, Religious, Etc.) – The California Fair Employment and Housing Act ("FEHA") specifically prohibits harassment based on race, religion, color, national origin, ancestry, physical and mental disability, medical condition, marital status, and age. Harassment based on these characteristics arises under the hostile work environment theory. The harassing conduct must be severe or pervasive enough to alter the conditions of the employee's employment. Also, where an employer has actual or constructive knowledge of the harassment, the employer has a duty to prevent and remedy the harassment.

  • Leaves of Absence – The California Family Rights Act ("CFRA") is part of the California Fair Employment and Housing Act ("FEHA"), and provides an eligible employee with up to 12 workweeks of leave time for the following reasons: 1) the birth of an employee's child or for the placement with an employee of a child for adoption or foster care; 2) to care for a child, spouse, or parent with a serious health condition; or 3) an employee's own serious health condition. In order to qualify for protection under the CFRA, the employee must have been employed by an employer that has 50 or more employees, and must have been employed by the employer for at least 12 months and for at least 1,250 hours during the 12-month period. If an employee qualifies for a CFRA leave, then his or her reinstatement to the same or a comparable position is guaranteed at the conclusion of the leave. In addition, a covered employer may not violate an employee's rights under the CFRA. This prohibition means that an employer may not refuse an eligible employee's request for leave, and also may not discriminate, discharge, or retaliate against an employee for exercising his or her rights under the CFRA.

  • Pregnancy Disability Leaves of Absence – The California Pregnancy Disability Leave Law ("PDLL") is part of the California Fair Employment and Housing Act ("FEHA") and provides employees with up to 4 months of leave time due to disability for pregnancy, childbirth, or related medical conditions. Following a leave under the PDLL, an employee has a right to reinstatement to the same position she held prior to the leave. In addition, if the employee cannot be reinstated to the same position, she generally has a right to reinstatement to a comparable position. A pregnant employee may also have the right to transfer to a different position for the duration of her pregnancy. Furthermore, an employer may not refuse to promote, discharge, discriminate against, or retaliate against any person for exercising the right to take a pregnancy disability leave or transfer, or for giving information or testimony in connection with any investigation or inquiry into an alleged violation of the pregnancy disability leave law.

  • Retaliation – The California Fair Employment and Housing Act ("FEHA") makes it unlawful for an employer to take adverse employment action against an employee in retaliation for the employee engaging in activity protected under the FEHA. Protected activity means either: 1) making a charge, testifying, or participating in any manner in proceedings or hearings under the FEHA; or 2) opposing acts made unlawful by the FEHA. Retaliation can take place in a variety of contexts, such as an employee facing adverse action from his employer after complaining to a supervisor about unlawful discrimination, or an employee facing adverse action after threatening to file a charge of employment discrimination.

  • Wrongful Termination – Under the California Fair Employment and Housing Act ("FEHA"), an employer may not terminate an employee based on a protected characteristic, such as the employee's age, race, gender, disability, etc. Termination under these circumstances constitutes unlawful employer conduct. If an employer does fire an employee based on a protected characteristic, then that employer may be liable for damages.

  • Whistleblowing – California law provides "whistleblower" protection when an employee is fired based on the employee's reporting the unlawful activities of his employer or of others. In addition, an employee can still qualify for protection where the employer fired him for reporting his reasonably based suspicions of illegal activity. By way of limited example, wrongful termination claims have been upheld in the following types of whistleblowing cases: reporting to management that the company was not paying proper overtime wages; reporting a personnel agency's discriminatory referral practices; reporting violations of consumer protection laws; and reporting health and safety violations. 

  • Wrongful Termination in Violation of Public Policy – California case law recognizes wrongful termination claims in certain situations where the termination violates a statute or a public policy. Additionally, these types of claims have also been permitted in cases where the employee has been demoted or suspended for a reason that violated public policy. There are a wide variety of wrongful termination in violation of public policy claims, including the following: 1) terminations specifically prohibited by the California Constitution, or by statutes such as the California Fair Employment and Housing Act and the California Labor Code; 2) terminations for exercising constitutional or statutory rights or privileges, such as the right to receive earned wages or the right to take family leave; 3) terminations for refusing to engage in unlawful conduct, such as the refusal to lie to a governmental agency or the refusal to engage in unlawful employment discrimination; 4) terminations for opposing employer discrimination; and 5) terminations for "whistleblowing" (reporting unlawful activities by the employer or by others).
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