Firm Articles and Story Blog

The Fair Employment and Housing Act - Employment perspective

Posted by Caleb A. Miller | May 05, 2022 | 0 Comments

What is the Fair Employment and Housing Act

The Fair Employment and Housing Act ("FEHA") is a California statute which prohibits employment and housing discrimination. For the purposes of this article, we are discussing employment discrimination and the protections provided by FEHA. This statute applies to both public and private employers, labor organizations and employment agencies. 

FEHA makes it illegal for employers of 5 or more employees to discriminate against job applicants and employees based on a protected category. Additionally, it is illegal to retaliate against job applicants and employees because they have asserted their rights under the law or made objections to their employer about violations of the law or public policy. FEHA prohibits harassment in all workplaces, including smaller employers with less than 5 employees when based on a protected characteristic of an employee, an applicant, an unpaid intern or volunteer or a contractor. 

FEHA and other Civil rights laws in California are enforced by the California Department of Fair Employment and Housing (DFEH). DFEH enforces other civil rights laws such as the Unruh Civil Rights Act, the California Family Rights Act (CFRA), the Disabled Persons Act, and the Ralph Civil Rights Act. DFEH ensures that employers and business establishments understand their legal responsibilities by conducting public outreach and training; Facilitating mediation and dispute resolution; Investigating complaints of discrimination; and or enforcing civil rights laws through prosecution. 

(California Government Code Section 12900-12951 & 12927-12928 & 12955 - 12956.1 & 12960-12976)

12900-12906 The California Fair Employment and Housing Act
12920-12922 Findings and Declarations of Policy
12925-12928 Definitions
12940-12951 Unlawful Practices Generally
12960-12976 General Provisions Enforcement and Hearing Procedures, Unlawful Practices

What are the Protected Characteristics? 

Harassment and discrimination is illegal in the workplace in California of any employee on the basis of actual or perceived race, religious creed, color, age, sex, sexual orientation, gender, gender identity, gender expression, transgender status, national origin, ancestry, marital status, medical condition as defined by state law (cancer or genetic characteristics), disability, military service and veteran status, pregnancy, childbirth, and related medical conditions, or any other characteristic protected by applicable federal, state, or local laws and ordinances.   

How do I bring a Claim for Discrimination, Harassment, or Retaliation under FEHA?

Any claim you have for discrimination, harassment, or retaliation relating to a violation of any of the laws enforced and protected by the DFEH should be reported directly to them. You must first request a Right to Sue letter from the DFEH, who will respond to you or your attorney with the letter and an opportunity to file a claim in civil court. Without this letter your lawsuit is subject to dismissal. Current California law gives you three years from the time of the adverse employment action, or the event which resulted in discrimination, harassment or retaliation to file a claim. 

What Are My Remedies?

If you are to file a claim, you can seek multiple forms of remedies from the employer to make you whole. This includes hiring or reinstatement to your position or a substantially similar position. If your termination was found to be based on some level of discrimination, the employer cannot simply bring you back into an undesirable position that will effectively force you to quit or move on. You may receive the promotion for which you earned but were passed up due to discrimination. If terminated and you have no interest in reinstatement due to the hostile work environment that has resulted, you may seek front pay, back pay, out of packet expenses, attorney's fees, damages for emotional distress, costs of the lawsuit, and punitive damages for exceptionally egregious cases of discrimination. 

What Employment Discrimination Entails?

FEHA protections apply to all business practices, such as:

  • Advertisements
  • Applications, screening, and interviews
  • Hiring, transferring, promoting, terminating, or separating employees
  • Working conditions, including compensation
  • Participation in a training or apprenticeship program, employee organization or union

Discrimination Defined - Discrimination means treating differently or denying or granting a benefit to an individual because of the individual's protected categories. 

Harassment Defined - Harassment can be verbal (including slurs, jokes, insults, epithets, gestures or teasing), visual (including offensive posters, symbols, cartoons, drawings, computer displays, text messages, social media posts or e-mails) or physical conduct (including physically threatening another, blocking someone's way, etc.).  Such conduct violates this policy, even if it does not rise to the level of a violation of applicable federal, state, or local laws and ordinances. 

Sexual Harassment Defined - Sexual harassment can include all of the above actions, as well as other unwelcome conduct, such as unwelcome or unsolicited sexual advances, requests for sexual favors, conversations regarding sexual activities and other verbal or physical conduct of a sexual nature. 

Examples of conduct that violates this policy include but are not limited to:

  • Unwelcome sexual advances, flirtations, advances, leering, whistling, touching, pinching, assault, blocking normal movement;
  • Requests for sexual favors or demands for sexual favors in exchange for favorable treatment;
  • Obscene or vulgar gestures, posters, or comments;
  • Sexual jokes or comments about a person's body, sexual prowess, or sexual deficiencies;
  • Propositions, or suggestive or insulting comments of a sexual nature;
  • Derogatory cartoons, posters, and drawings;
  • Sexually explicit e-mails or voicemails;
  • Uninvited touching of a sexual nature;
  • Unwelcome sexually-related comments;
  • Conversation about one's own or someone else's sex life;
  • Conduct or comments consistently targeted at only one gender, even if the content is not sexual; and
  • Teasing or other conduct directed toward a person because of the person's gender.

Retaliation Defined -Retaliation means adverse conduct taken because an individual reported an actual or perceived violation, opposed practices prohibited by policy or law, or participated in the reporting and investigation process.   “Adverse conduct” includes but is not limited to:  shunning and avoiding an individual who reports harassment, discrimination or retaliation; express or implied threats or intimidation intended to prevent an individual from reporting harassment,  discrimination or retaliation; and denying employment benefits because an applicant or employee reported harassment, discrimination or retaliation or participated in the reporting and investigation process employers conduct or should conduct when a violation is reported. 

If you believe you have been subject to Discrimination, Harassment, or Retaliation, Contact our officefor a FREE consultation with a Los Angeles based Discrimination and Harassment Attorney. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Avvo - Rate your Lawyer. Get Free Legal Advice.