What workplace discrimination looks like
California’s Fair Employment and Housing Act makes it unlawful for an employer to refuse to hire someone, to fire them, or to treat them worse in pay or in the terms, conditions or privileges of their job because of a protected trait (Government Code § 12940(a)). The rule covers applicants as well as current employees.
The California Civil Rights Department lists the parts of a job where the law applies. In practice, discrimination can show up as:
- A job offer withdrawn, or an application screened out, after the employer learns about a pregnancy, disability or age
- A firing or layoff that falls on one group of workers
- A promotion or a training spot given to a less qualified coworker
- Lower pay than coworkers doing the same work
- Worse shifts, assignments or working conditions than others get
These rules apply to employers that regularly employ five or more people, including the state, cities and other public employers (Government Code § 12926(d)). The Department adds that harassment is prohibited in every workplace, even one with fewer than five employees.
Who California law protects
The Fair Employment and Housing Act protects workers because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and veteran or military status (Government Code § 12940(a)). The protection also covers an employer’s perception that you have one of these traits, and your association with someone who has one (§ 12926(o)). An employment discrimination attorney in Oakland can tell you which of these fits your situation. The most common ones are below.
Pregnancy discrimination and pregnancy leave
Under California law, “sex” includes pregnancy, childbirth, breastfeeding and related medical conditions (Government Code § 12926(r)). An employer may not refuse to let an employee disabled by pregnancy, childbirth or a related condition take leave for a reasonable period, up to four months, and then return to work. It must also provide a reasonable accommodation for a pregnancy related condition when the employee asks with the advice of a health care provider (§ 12945(a)). Separately, the California Family Rights Act gives an eligible employee up to 12 workweeks of leave in a 12 month period to bond with a new child, with a guarantee of the same or a comparable job afterward. To be eligible, an employee generally needs more than 12 months of service and at least 1,250 hours in the past 12 months, with an employer of five or more people (§ 12945.2(a), (b)(4)). Firing or punishing someone for using that leave is unlawful (§ 12945.2(k)).
Disability and reasonable accommodation
Physical and mental disabilities are both protected. An employer must make a reasonable accommodation for an employee’s or applicant’s known disability unless it can show undue hardship (§ 12940(m)(1)). Accommodations can include job restructuring, part time or modified schedules, reassignment to a vacant position, and new or modified equipment (§ 12926(p)). When a worker asks for an accommodation, the employer must engage in a timely, good faith, interactive process to find one that works (§ 12940(n)). An employer also may not retaliate against a worker for asking, even if the request is not granted (§ 12940(m)(2)).
Age discrimination
Age protection under the Act starts at a worker’s 40th birthday (Government Code § 12926(b)). Being replaced by a younger worker, being steered toward retirement, or being left out of recalls after a layoff can all be signs worth reviewing with a lawyer.
Race, color, national origin and ancestry
Race, color, national origin and ancestry are protected traits. California defines race to include traits associated with race, such as hair texture and protective hairstyles like braids, locs and twists (Government Code § 12926(w), (x)). A grooming rule that singles out those hairstyles can be discrimination.
Sexual orientation, gender identity and gender expression
The Act protects sexual orientation, gender, gender identity and gender expression. Gender expression means a person’s gender related appearance and behavior, whether or not it matches stereotypes tied to the sex assigned at birth (Government Code § 12926(r)(2)).
Religion
An employer must try to accommodate a worker’s religious belief or observance, for example by excusing the worker from a conflicting duty or letting someone else cover it, unless doing so would cause undue hardship (Government Code § 12940(l)(1)).
Harassment and retaliation
Harassment because of a protected trait is unlawful on its own. A worker does not have to lose a raise or a job to have a harassment claim (Government Code § 12940(j)(1)). Harassment because of sex includes sexual harassment and harassment based on pregnancy, childbirth or related conditions (§ 12940(j)(4)(C)). Employers must take all reasonable steps to prevent discrimination and harassment (§ 12940(k)).
It is also unlawful to fire or punish someone for opposing discrimination, or for filing a complaint, testifying or helping in a proceeding under the Act (§ 12940(h)). If the trouble at work started after you complained, read our page on workplace retaliation.
Deadlines to file a discrimination claim
A discrimination case under the Act usually starts with the Civil Rights Department, not in court. Two deadlines matter.
File with the Civil Rights Department within three years
A complaint for a violation of § 12940 must be filed within three years of the date the unlawful practice occurred (Government Code § 12960(e)(5)). The Department says that in employment cases you must submit an intake form within three years of the date you were last harmed.
Get a Right to Sue notice if you want to go to court
You do not have to use the Department’s investigation. You can file your own lawsuit instead, but in employment cases the Department says you must first get an immediate Right to Sue notice from it.
File the lawsuit within one year of the notice
The Right to Sue notice gives you one year from the date of the notice to bring a civil action against the employer named in the complaint (Government Code § 12965(c)(1)(D)).
Other claims can have different and shorter deadlines. Call early so a lawyer can check every date that applies to you.
Evidence to keep and what to do now
The Civil Rights Department asks people filing a complaint to have the facts and any records about what happened, copies of related documents, and the names and contact information of witnesses. Start gathering what you can lawfully keep.
What to keep
- Emails, texts or notes with comments about your pregnancy, disability, age, race, religion, sexual orientation or gender
- Your accommodation or leave request, the date you made it, and the employer’s answer
- Pay stubs, schedules and job postings that show how you were treated compared with coworkers
- Performance reviews and write ups from before and after the change
- The termination letter, demotion notice or rejection letter
- A dated timeline you write yourself, while the details are fresh
What to do, and what to avoid
Report it in writing
If you raise a concern with a supervisor or human resources, follow up with a short, factual email that confirms what you reported and when.
Ask for accommodations in writing
Put a disability or pregnancy accommodation request in writing and keep a copy of any note from your health care provider.
Do not take confidential company files
Keep your own records, but ask a lawyer before copying documents that belong to your employer.
Do not sign a release yet
A severance agreement or release can give up your claims. Have a lawyer read it before you sign.
What you can recover
The Civil Rights Department lists the remedies state law provides for employment discrimination. Which ones apply depends on the facts of your case. They include:
- Lost earnings. Back pay for past lost earnings and front pay for future lost earnings.
- Your job. Hiring, reinstatement or a promotion.
- Expenses and accommodation. Out of pocket expenses and reasonable accommodations.
- Emotional distress and punitive damages. Damages for emotional distress, and punitive damages.
- Changes at work. Policy changes and training.
- Attorney’s fees and costs. In a lawsuit under the Act, the court may award the prevailing party reasonable attorney’s fees and costs (Government Code § 12965(c)(6)).
Your free consultation
The first consultation is free. You tell us what happened at work, and a lawyer explains which laws may apply, what the deadlines are and what we would do next. If we take your case, we explain how fees and costs would work before you decide to hire us.
Why workers call our office
John E. Hill opened this firm in Oakland in 1973. Six attorneys work from one office on Hegenberger Road, near the Coliseum and the airport, and you talk with the lawyer handling your case. John is a member of the American Board of Trial Advocates and a Board Certified Civil Trial Advocate (National Board of Trial Advocacy). Your consultation and your case can be handled in English or Spanish, and your call is answered day or night.
The National Board of Trial Advocacy is not affiliated with any government authority.
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Discrimination questions
01Does my employer have to be a certain size?
For discrimination claims under the Fair Employment and Housing Act, the employer must regularly employ five or more people. Public employers are covered too. Harassment is prohibited in every workplace, whatever its size.
02Can I be fired for being pregnant?
No. Pregnancy is part of sex discrimination under California law. An employee disabled by pregnancy can take up to four months of leave and return to work, and can ask for a reasonable accommodation with the advice of a health care provider.
03How long do I have to file?
A complaint with the Civil Rights Department must be filed within three years of the discrimination. After you get a Right to Sue notice, you have one year from the date of the notice to file a lawsuit.
04My employer gave a different reason for firing me. Can I still have a case?
You may. Employers rarely say they acted because of a protected trait. A lawyer will look at timing, at how coworkers were treated and at whether the stated reason holds up against your records.
05What does it cost to talk with you?
Nothing. The first consultation is free. If we take your case, we explain how fees and costs would work before you decide to hire us.
For other questions, call (510) 588-1000 or use our contact page.