California Workplace Discrimination Guide

What Is Workplace Discrimination in California?

Workplace discrimination occurs when an employer treats an employee or job applicant less favorably because of a protected characteristic — a personal attribute the law prohibits using as a basis for employment decisions.

In California, workplace discrimination is primarily governed by the Fair Employment and Housing Act (FEHA), codified at Government Code § 12900 et seq. FEHA is significantly broader than federal anti-discrimination law (Title VII, ADEA, ADA) in two critical ways: it covers employers with as few as 5 employees (vs. 15 under Title VII), and it provides more protected categories than federal law.

An "adverse employment action" can include termination, demotion, failure to hire or promote, reduction in pay or hours, reassignment to a less desirable position, or any other action that materially affects the terms and conditions of employment.

Discrimination vs. Harassment vs. Retaliation

These three concepts are often confused but are legally distinct:

• Discrimination = Adverse employment action (e.g., firing, demotion) because of a protected characteristic
• Harassment = Unwelcome conduct based on a protected characteristic that creates a hostile work environment
• Retaliation = Adverse action against an employee for engaging in protected activity (e.g., filing a complaint)

All three are illegal under FEHA and can be the basis for a lawsuit against your employer.

16 Protected Characteristics Under FEHA

California's FEHA currently protects employees from discrimination based on 16 separate characteristics. This list is more comprehensive than the 9 categories protected under federal Title VII:

Effective January 1, 2024, California also added reproductive health decision-making as a protected category under FEHA, prohibiting employers from discriminating against employees for their decisions regarding contraception, abortion, fertility treatments, and related healthcare.

Types of Workplace Discrimination

1. Disparate Treatment (Intentional Discrimination)

Disparate treatment occurs when an employer intentionally treats an employee differently because of a protected characteristic. This is the most common type of discrimination claim. Examples include:

• Firing an employee because of their race while keeping similarly situated employees of a different race
• Refusing to promote a woman because of assumptions about her family responsibilities
• Paying an older worker less than younger workers doing the same job

2. Disparate Impact (Facially Neutral Policies)

Disparate impact occurs when a workplace policy is neutral on its face but disproportionately harms a protected group without business justification. For example, a strength test for all applicants that disproportionately screens out women, where the test isn't related to actual job requirements.

3. Mixed-Motive Discrimination

Many discrimination cases involve mixed motives — the employer had both legitimate and discriminatory reasons for the decision. Under California law, you can still win a mixed-motive case if you prove that the protected characteristic was a substantial motivating factor in the adverse decision, even if there were other legitimate reasons.

4. Intersectional Discrimination

California courts recognize intersectional discrimination — discrimination based on the combination of two or more protected characteristics. For example, discrimination against a Black woman based on stereotypes that apply specifically to Black women (rather than to Black people generally or to women generally).

How to Prove Discrimination: The Burden of Proof

In California discrimination cases, courts apply the McDonnell Douglas burden-shifting framework (from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as applied under FEHA):

Step 1: Employee Establishes a Prima Facie Case

The employee must show:

1. They belong to a protected class (race, gender, age, etc.)
2. They were qualified for the position
3. They suffered an adverse employment action
4. The employer treated similarly situated employees outside the protected class more favorably (or other circumstances suggesting discrimination)

Step 2: Employer Articulates a Legitimate Reason

Once the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the action (e.g., "we terminated her due to documented performance issues"). This burden is one of production only — the employer doesn't have to prove the reason is true.

Step 3: Employee Shows Pretext

The employee then bears the ultimate burden of proving the employer's stated reason is a pretext (a made-up excuse) for discrimination. Evidence of pretext can include:

• The employer changed its stated reason over time
• The stated reason is not supported by the evidence
• Employees outside the protected class who committed similar conduct were not disciplined
• Discriminatory comments or statements by decision-makers
• Statistical evidence of a pattern of discrimination

Evidence & Documentation

The strength of your discrimination case depends heavily on the evidence you preserve. California courts accept both direct and circumstantial evidence.

Direct Evidence

Direct evidence explicitly shows discriminatory intent. Examples:

• A manager saying "We don't promote women to senior roles here"
• An email noting "We need someone younger for this position"
• A written policy that explicitly treats employees differently based on a protected characteristic

Direct evidence is rare — most cases rely on circumstantial evidence.

Circumstantial Evidence

Build your case with these types of evidence:

• Comparative evidence: How were similarly situated employees treated? Document names, dates, and specific actions taken against others vs. you.
• Temporal proximity: Did the adverse action happen shortly after you disclosed a protected characteristic (e.g., pregnancy announcement)?
• Inconsistent reasons: Did the employer give different explanations at different times?
• Statistical evidence: Does your employer have a track record of not hiring/promoting members of your protected class?
• Shifting standards: Were you held to different standards than other employees?

Document Everything

Start preserving evidence immediately:

• Save all emails, texts, and written communications related to the discrimination
• Keep a detailed journal with dates, times, witnesses, and exact words used
• Preserve performance reviews — especially positive ones before the adverse action
• Document your comparators: who does similar work and how are they treated?
• File an internal HR complaint (even if you don't expect it to be resolved — it creates a paper trail)
• Save your personnel file and any written disciplinary notices

Filing Deadlines & How to File

Step-by-Step: Filing with the California CRD

1. File an intake form with the California Civil Rights Department (formerly DFEH) online or by phone at 1-800-884-1684
2. Investigation or mediation: The CRD may investigate or offer mediation. Either party can request an immediate right-to-sue letter without investigation.
3. Right-to-sue letter: Once issued, you have 1 year to file a civil lawsuit in California Superior Court
4. File your lawsuit: Your attorney will file a complaint detailing the discrimination claims and relief requested
5. Discovery & trial: Both sides exchange evidence; most cases settle before trial

Important: Do Not Miss the Deadline

Missing the administrative filing deadline is fatal to your case. Under California law, the 3-year period begins running from the date of the discriminatory act. For ongoing harassment, the "continuing violation" doctrine may extend the period, but this applies narrowly. Consult an attorney as soon as you believe discrimination has occurred.

Damages & Remedies

California's FEHA provides the most comprehensive remedies of any state anti-discrimination statute. Unlike Title VII (which caps compensatory and punitive damages at $300,000), FEHA has no cap on damages.

Economic Damages

• Back pay: Wages and benefits lost from the date of the discriminatory act to the date of judgment
• Front pay: Future earnings losses if reinstatement is not feasible
• Lost benefits: Health insurance, retirement contributions, stock options
• Out-of-pocket expenses: Job search costs, medical expenses caused by the discrimination

Non-Economic Damages

• Emotional distress: Compensation for anxiety, depression, humiliation, and mental suffering — no cap under FEHA
• Loss of enjoyment of life
• Damage to professional reputation

Punitive Damages

Punitive damages are available under FEHA when the employer's conduct was malicious, oppressive, or fraudulent. These damages are meant to punish and deter, and California juries have awarded substantial punitive damages in FEHA cases. The largest single California discrimination verdict exceeded $41 million.

Attorney's Fees & Costs

FEHA is a fee-shifting statute: if you win, your employer must pay your attorney's fees. This means you can hire a top employment attorney on a contingency basis (no upfront costs) and the employer pays if you win.

Injunctive Relief

Courts can order non-monetary relief including: reinstatement to your position, promotion to the position you were wrongfully denied, changes to employer policies, and mandatory anti-discrimination training.

Frequently Asked Questions