You should be recognized for your achievements and talent, without discrimination in your workplace. The idea of equality in the workplace is widely accepted. However, the reality is that employment discrimination is still a significant problem. It can sometimes look like minor bias influencing recruitment and promotion, or even direct harassment and wrongful termination. Often, this discrimination is based on factors like race, gender, age, or religious background.

Discrimination goes beyond financial losses. When the problem continues, it could cause deep anguish, a dip in staff morale, and stifle the company’s growth and progress. Because of this, equal opportunity is undermined, and people who work hard can still fail.

Remember, you have rights if you believe you have been discriminated against. Stop Unpaid Wages is dedicated to standing up for what is fair in your California workplace. We will support your interests, use our legal expertise to help you deal with difficult situations, and ensure employers do not discriminate against you. Call us for assistance. However, looking at employment discrimination to better understand it is important, and the information below breaks it down.

The Fair Employment and Housing Act (FEHA)

Government Code section 12900, the Fair Employment and Housing Act, is California’s primary anti-discrimination law and among the strongest laws in the country. Often known as "FEHA California," the statute outlaws workplace and housing discrimination and harassment.

FEHA is designed to reach most employers across the state. It covers private firms with five or more workers and all state and local government entities, regardless of their size. A few organizations, like religious groups or non-profit corporations, may have exemptions in certain situations.

FEHA is especially notable for being more extensive than key federal anti-discrimination laws, like Title VII of the Civil Rights Act of 1964. Although federal laws cover only companies with 15 or more employees, FEHA protects employees against discrimination in small firms starting at five, whereas federal laws only apply to larger employers. Relying on FEHA strengthens the definition of protected characteristics and addresses categories generally missed by federal rules.

Primarily, the Department of Fair Employment and Housing (DFEH), now referred to as the Civil Rights Department (CRD), is responsible for enforcing FEHA. The CRD investigates complaints and seeks to settle disputes. The CRD examines complaints, tries to resolve them, and takes civil action to preserve California’s civil rights laws when required. If you believe you have experienced discrimination under FEHA, you could file a complaint with the CRD and initiate the legal process to address and remedy discriminatory practices.

Protected Characteristics Under California's FEHA

California’s Fair Employment and Housing Act (FEHA) shields employees from discrimination and harassment based on many personal characteristics. These "protected characteristics" or “FEHA protected categories” are outlined within the statute to shield employees from being subjected to workplace mistreatment due to factors not related to their jobs.

Listed below are the different protected characteristics under FEHA:

  • Race — Under FEHA, people cannot be discriminated against because of their race, which includes their hair texture or cultural features, including race-related features like hair texture or other race-related issues
  • Color — The right to be free of discrimination based on skin color is protected
  • Ancestry — FEHA has safeguards related to someone’s family background or where they come from
  • National origin — The law protects against discrimination based on a person’s national origin, which is his/her country of origin, ethnic group, or accent.
  • Religion — The law ensures that individuals with religious beliefs, habits, or backgrounds and those without remain safe. This means that staff and companies must be reasonable when accommodating religious practices.
  • Age (40 and over) — The law protects those 40 or older against job discrimination because of their age.
  • Disability — If you have a mental or physical disability or are perceived to have one, or whether or not you have a medical condition, this provision protects you. FEHA’s approach to disability means employers are generally expected to accommodate qualified people with disabilities. This is outlined under Government Code section 12926, subsections(j) and (l)
  • Sex or gender — The law also protects employees from discrimination because of pregnancy, childbirth, breastfeeding, diseases of pregnancy, gender identity, and gender expression
  • Sexual orientation — Under FEHA, no one can be discriminated against because they are heterosexual, homosexual, or bisexual.
  • Gender identity — Recognition given for a person’s sense of his/her gender, regardless of the sex they were assigned at birth
  • Gender expression — Refers to an individual’s external characteristics or behaviors that society considers masculine or feminine.
  • Medical condition — People with actual or perceived medical conditions, like cancer or genetic traits, are protected.
  • Genetic information — The law protects people from discrimination based on genetic tests either for themselves or their family members
  • Marital status — The law protects you from being mistreated because you are single, married, separated, divorced, or widowed
  • Military or veteran status — Soldiers and those who have served in the military are also protected

Categories typically found in California law include its generous definitions of disability and its special protections for gender identity and expression. Compared to other jurisdictions, these were included in state law codified early on.

The Difference Between Discrimination and Harassment in the Workplace

Under the California Fair Employment and Housing Act, employment discrimination and workplace harassment are distinct legal concepts, despite being closely related and used interchangeably.

When a protected characteristic is behind adverse decisions at work, it is called employment discrimination. Examples of these actions include:

  • Refusing to hire
  • Changing an employee’s job level
  • Offering reduced hours
  • Reducing pay
  • Terminating their employment

Employees are victims of discrimination when the employer’s decisions, policies, or decision-making processes are tainted because of bias towards a protected group.

If conduct becomes severe or happens regularly enough to modify a worker’s environment into an abusive one, it is considered workplace harassment. This behavior can occur without an explicit employment action. Some examples of harassment include:

  • Offensive jokes
  • Using slurs, epithets, making verbal ttarget="_blank" hreats, or ttarget="_blank" hreats with physical violence
  • Intimidation
  • Mockery or ridicule
  • Insults or putting someone down
  • Showing offensive pictures
  • Interference with work performance

It should be noted that harassment becomes discrimination when directed at someone because of a protected characteristic. Should an employee be constantly criticized for being older, making their work stressful, it is considered age discrimination through harassment.

The key difference involves the nature of the harm and who is causing it. Generally, discrimination occurs because of a company’s official action or policy, for example, when a manager will not promote a woman because of gender prejudice. Harassment that is so bad can make the workplace so unpleasant that a person feels they have to quit, which is then seen as a wrongful termination.

Forms of Employment Discrimination

Several types of discriminatory employment practices are forbidden under the FEHA. These categories show the different forms in which unlawful discrimination can take place at work. They include:

Disparate Treatment

When an employer treats someone or a group unfairly and less favorably than others because of a protected characteristic, this action amounts to disparate treatment. The main element is having a discriminatory motive.

For example, should an employer pay female employees less than male employees for doing the same work, with the same qualifications and experience, this would be considered disparate treatment based on sex or gender.

Similarly, rejecting a well-qualified candidate just because they are too old by making statements like, "We are searching for someone younger," is a clear case of disparate treatment.

Disparate Impact

If an employer’s fair policy or practice equally affects everyone but has a larger negative impact on a protected group, that is considered disparate impact. Unlike disparate treatment, disparate impact does not require intentional discrimination. Focus is given to the outcome of the policy.

For example, a company requiring anyone applying for a job to be able to lift 100 pounds could hurt female applicants or those with specific disabilities, even if the policy was not made to discriminate. If the job does not require lifting and the lifting requirement is not necessary for business, this requirement might be considered unfair under FEHA.

Harassment, as a Type of Discrimination

We have already discussed that harassment is a form of discrimination if it results in a hostile work atmosphere or demands are made in exchange for job benefits based on a protected trait. In most cases, harassment falls under two categories:

  • Hostile work environment — A hostile work environment exists if unwanted behavior directed at a protected characteristic is so persistent or intense that it makes the workplace unpleasant and uncomfortable for the victim. For example, a supervisor could often use offensive jokes about a person’s national origin, show racist cartoons, and use ethnic slurs, making it impossible for the victim to perform their job without feeling harassed.
  • Quid pro quo harassment — This happens when a person is promised a benefit at work, like a raise or continued employment, if they accept unwanted sexual advances or other behavior based on a protected feature. For example, when a manager tells an employee they can be promoted if they agree to go on a date with the manager.

Retaliation

FEHA prohibits an employer from retaliating against someone engaged in a protected activity. Examples of protected activities include:

  • Opposing unfair treatment, like speaking up against sexual harassment
  • Participating in an investigation of discrimination
  • Lodging a complaint with the CRD

For example, should you, as an employee, file a complaint on age discrimination with the CRD due to unfair treatment, and shortly after you are demoted or your hours are reduced without a legitimate business reason, this could be evidence of unlawful retaliation.

Wrongful Termination

While not a separate type of discrimination, wrongful termination often occurs when discrimination, harassment, or retaliation lead to dismissal. Should an employee lose his/her job because of his/her race, gender, age, or another protected trait, or to punish them for engaging in a protected activity, the termination would be wrongful according to FEHA.

Firing a worker soon after they report a health issue requiring a reasonable adjustment, without making any effort to accommodate them, could also be considered wrongful termination due to disability discrimination.

How To Identify Discrimination in Your Place of Employment

Recognizing workplace discrimination is often challenging because it can be explicit and hidden. However, becoming familiar with everyday situations and warning signs helps individuals tell if their rights under FEHA are violated.

Discrimination often shows up in the following employment situations:

  • Hiring and firing — When qualifications do not matter, and termination happens to those with these qualifications, while those lacking qualifications from a protected class are retained or hired.
  • Promotion and demotion — Being passed over for a promotion you deserve or being demoted without good reasons based on your performance
  • Pay disparity — You being paid less or given fewer benefits than your colleagues because of differences in employment protections.
  • Job assignments and training access — Allocating a poor job or not being allowed access to training opportunities that others regularly access
  • Unfair performance reviews — Being rated negatively on a performance review, especially when this review happens after you inform your employer about a protected aspect or engage in a protected activity
  • Benefits — Access to or denying benefits differs for people due to a protected class or status.

It is crucial to be able to differentiate among all kinds of discrimination. Overt discrimination is explicit and easy to identify, like a manager saying women are not allowed in that role or denying someone a promotion based on age. However, there are subtle forms of discrimination that are easier to miss. A person could face this by being regularly excluded from informal networking opportunities, being given low-level tasks without a reason, or finding that their serious concerns are dismissed differently than those brought up by colleagues from other protected groups.

Some warning signs of discrimination are:

  • Sudden negative changes in treatment — If someone reports a pregnancy, a disability, or discrimination, their good relationship with management or job performance suddenly changes for the worse
  • Biased comments — Jokes, comments, or stereotypes about protected characteristics, even when someone says they are harmless
  • Exclusion — Being routinely left out of important meetings, projects, or events that help you in your career
  • Unequal application of rules — This mostly occurs where members of protected groups get more severe treatment than others
  • Lack of transparency — When vague or inconclusive explanations are offered for adverse employment decisions

Some of the examples of discrimination include:

  • A company based in the tech sector hires men for senior engineering jobs, although more qualified and experienced women also apply
  • A manager consistently assigning fewer responsibilities after learning an employee has a serious medical condition, subtly phasing them out

Being aware of these signs helps us begin to address the problem of discrimination.

What You Should Do If You Experience or See Discrimination in Your Workplace

It is upsetting to witness or suffer discrimination in a job setting, so understanding the proper steps is vital to help you and your coworkers. It will help you protect your rights and promote a better working environment. Adhering to the right processes and meeting deadlines is necessary.

You should take the following steps:

Document Everything Meticulously

Thorough evidence is the basis of any complaint of discrimination. Write down every critical incident so it is easy to track the incidents. You should include:

  • The date and time the discriminatory words or acts occurred
  • Details about what was said or done
  • Anyone who participated in the incident, specifically the offenders, the victim, and the witnesses
  • Witnesses who can corroborate your complaints
  • Communications with all the parties involved, including all emails, text messages, memos, or similar text evidence regarding the discrimination or your problems. Ensure you preserve them.
  • Denials of employment, demotions, pay deductions, inappropriate performance assessments, or being fired should all be documented

Review Your Company’s Policy

The vast majority of employers are required to adopt anti-discrimination and harassment policies. Ensure you know the reporting guidelines used within your company, often explained in employee handbooks or on the company’s intranet.

Follow the Internal Complaint Policy

Although it is not required by law before contacting an agency, reporting to your employer internally allows the company to address the issue. If you are being bullied, file a report with:

  • Human Resources (HR)
  • Your supervisor, if they are not the abuser
  • Anyone else listed as receiving these reports in your company’s policy

It helps to write down your complaint and keep a copy, if you can do so.

Register Your Complaint With the CRD and the EEOC

Since there is little flexibility, you must complete this process within the set deadlines.

If you report to the Civil Rights Department (CRD), you must file within one year of the final discriminatory incident. FEHA claims are subject to this statute of limitations. The CRD will look into your complaint, sometimes by mediating, having interviews, and requesting documents from you. You can access information and begin a complaint using the process available on the CRD website’s page.

Alternatively, if the federal protection you seek is Title VII, you typically have 300 days from the day of discrimination to file your charge with the EEOC. By working together, the CRD and Equal Employment Opportunity Commission (EEOC) will cross-file your submission, but it is best to state your intentions and what you are looking for. You can also access more information on the EEOC website.

You should always make sure to meet these deadlines. If the time limit for claiming passes has passed, you can no longer sue.

Turning to an Employment Attorney

You can file a discrimination complaint, though getting advice from a knowledgeable employment lawyer is highly beneficial. An attorney can:

  • Assess the strengths of your situation and inform you about relevant claims you might be able to make
  • Support you in collecting and organizing evidence effectively
  • Ensure you meet all deadlines
  • Represent you at the CRD or EEOC inquiry
  • Negotiate with your employer or initiate a lawsuit if you have exhausted all the administrative remedies with your employer and feel it is still the suitable course of action

Working with an attorney will help you make sense of anti-discrimination law and give you the best odds of winning. It is crucial to seek legal advice if needed because of the strict procedural requirements and potential for having a tough case.

Key Responsibilities for Employers

Most employers are legally obligated to ensure their workplace does not include discrimination, harassment, or retaliation, as mainly governed by the Fair Employment and Housing Act (FEHA). This means employers should prepare and ensure all employees know about clear rules to prevent discrimination and harassment against all protected categories.

Because of laws like SB 1343, businesses with five or more staff members must ensure that their managers and staff receive harassment prevention training every other year. If any issues are raised, employers are required to do prompt and proper investigations without prejudice. A significant commitment is to deliver reasonable accommodation for employees with disabilities and religious beliefs by engaging in an interactive dialogue to develop suitable changes.

Best practices include job-related and objective criteria for all employee processes, including hiring, performance review, promotion, and termination.

What You Can Expect in a Discrimination Case

Should workplace discrimination be found in your workplace, as the aggrieved party, you could access several potential remedies and outcomes. These could include:

  • Job reinstatement, that is, returning you to your previous position
  • Offering a job replacement
  • Compensating you for lost wages
  • Paying wages for future lost earnings if reinstatement is not possible

If the employer acts in a highly malicious or oppressive manner, the court could award you punitive damages to punish your employer and keep others from following their example. In some cases, you could also recover attorney fees and litigation expenses.

Before involving the courts, the CRD could offer mediation and investigate a claim. This could end with resolving the case through a settlement agreement or enforcement action. If the case proceeds to litigation, parties often need to:

  • Exchange significant information through discovery
  • Discuss settlement
  • Attend a trial before the judge or jury, who will decide the outcome of the case and award damages

Finding an Employment Law Attorney Near Me

Experiencing employment discrimination can make your career and personal life much more difficult. Should you face unfair treatment at your job due to your race, gender, age, or any other protected characteristic, California law protects your rights.

It may seem complicated, and taking action could feel daunting. However, knowing your rights is the first step you should take. Knowing your rights will help you work towards a fair result. If you believe you are a victim of discrimination, document the incidents and consult a lawyer.

At Stop Unpaid Wages, we work to empower employees. Our expertise can illuminate your path to justice, ensuring your voice is heard and employers are held to the highest work standards. Call us at 424-781-8411 for a free case assessment.