California Anti-Discrimination & FEHA: Broader Than Federal Law

The Fair Employment and Housing Act (FEHA), codified at Government Code § 12900 et seq., is California's primary anti-discrimination statute. Originally enacted in 1959, FEHA has been steadily expanded to the point where it is now the most protective employment anti-discrimination law in the United States.

FEHA is enforced by the Civil Rights Department (CRD), formerly known as the Department of Fair Employment and Housing (DFEH). The name changed effective July 1, 2022 (AB 2958), but the agency's authority and functions remain the same. All references to DFEH in older materials, regulations, and case law now refer to CRD.

FEHA: 5 or more employees (Gov. Code § 12926(d)) Federal Title VII: 15 or more employees Harassment protections: 1 or more employees (Gov. Code § 12940(j)(4)(A))

This means California employers with as few as 5 employees face the full range of FEHA's anti-discrimination obligations — including disability accommodation, religious accommodation, and all protected-class protections. Harassment protections extend even further, covering every employer with at least one employee, as well as unpaid interns, volunteers, and independent contractors.

FEHA protects against employment discrimination based on more than 17 characteristics — substantially exceeding federal law:

### Recent Expansions

• Reproductive health decision-making (SB 523, effective January 1, 2024): Employers cannot discriminate based on an employee's reproductive health decisions, including the use of contraception, fertility treatments, or abortion services.
• Off-duty cannabis use (AB 2188, effective January 1, 2024): Employers generally cannot discriminate against employees for off-duty cannabis use. Pre-employment drug tests that screen for non-psychoactive cannabis metabolites are prohibited. Employers may still prohibit possession and impairment during work hours and may test for psychoactive THC.
• Hair discrimination / CROWN Act (SB 188, effective January 1, 2020): Race discrimination explicitly includes traits historically associated with race, including hair texture and protective hairstyles such as braids, locs, twists, and knots (Gov. Code § 12926(w)).

Under Gov. Code § 12940, it is unlawful for an employer to:

### Discrimination (§ 12940(a)) Refuse to hire, discharge, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of any protected class.

### Harassment (§ 12940(j)) Harass an employee, applicant, unpaid intern, volunteer, or independent contractor because of any protected class. Harassment includes:

• Quid pro quo harassment: Conditioning employment benefits on submission to unwelcome conduct
• Hostile work environment: Conduct sufficiently severe or pervasive to alter working conditions and create an abusive work environment
• Individual supervisors and co-workers can be held personally liable for harassment under FEHA — unlike federal law, where individual liability is generally not available under Title VII

• Filed a complaint with CRD
• Testified or assisted in any CRD proceeding
• Opposed any practice made unlawful by FEHA

### Failure to Accommodate (§ 12940(m)) Fail to make reasonable accommodation for the known physical or mental disability of an employee or applicant, unless the accommodation would cause undue hardship.

### Failure to Engage in Interactive Process (§ 12940(n)) Fail to engage in a timely, good-faith interactive process with an employee or applicant who has a known disability to determine effective reasonable accommodations.

Statute: Government Code § 12950.1 (SB 1343, expanded effective January 1, 2019)

### Who Must Provide Training

All employers with 5 or more employees (including temporary and seasonal employees).

### Training Requirements

### Training Content Must Include

• Definition of sexual harassment under FEHA and Title VII
• FEHA and Title VII statutory provisions concerning sexual harassment
• Types of conduct that constitute sexual harassment
• Remedies available to victims
• Strategies to prevent sexual harassment
• Supervisors' obligation to report harassment
• Practical examples (scenarios) of harassment
• Abusive conduct/bullying prevention (even though bullying is not independently actionable, it must be covered in training — AB 2053)
• Harassment based on gender identity, gender expression, and sexual orientation (SB 396)
• Information about resources, including CRD complaint process

### Compliance Details

• Training may be conducted live, via webinar, via e-learning, or through any effective interactive method
• CRD provides free online training courses at calcivilrights.ca.gov
• Employers must keep training records for at least 3 years (documentation of training content, attendees, trainer qualifications, and dates)

Statute: Gov. Code § 12940(l)

California requires employers to reasonably accommodate an employee's religious beliefs, observances, and practices unless accommodation would cause undue hardship. Key points:

• Broader definition of undue hardship than pre-*Groff* federal law. Under FEHA, undue hardship has historically been interpreted more broadly than federal law's pre-2023 de minimis standard. Following the U.S. Supreme Court's decision in Groff v. DeJoy (2023), which raised the federal standard to "substantial increased costs," the practical gap has narrowed — but California courts may still apply FEHA's standard independently.
• Religious dress and grooming are expressly protected (SB 1159, Gov. Code § 12926(q)-(r)). Employers cannot prohibit religious dress or grooming practices, including head coverings, facial hair, and religious symbols, as a condition of employment.
• Segregating an employee from customers or the public is not a reasonable accommodation (Gov. Code § 12940(l)(3)).

### The Interactive Process (Gov. Code § 12940(n))

California imposes an affirmative duty on employers to initiate and engage in a timely, good-faith interactive process when they become aware that an employee has a disability and may need accommodation. This obligation is triggered by:

• An employee's direct request for accommodation
• An employer's observation that an employee may be struggling due to a disability
• A third party's notification (e.g., a family member or medical provider)
• An employee's return from disability-related leave

### Key Differences from Federal ADA

Under FEHA, failing to engage in the interactive process is a standalone violation — even if the employee could not ultimately have been accommodated (Gov. Code § 12940(n); Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413).

### Common Reasonable Accommodations

• Modified work schedules
• Reassignment to a vacant position
• Leave of absence (including leave beyond CFRA/FMLA exhaustion)
• Telework/remote work
• Modified duties
• Assistive technology or equipment
• Accessible facilities

One of FEHA's most significant features: there is no statutory cap on compensatory or punitive damages.

This means a California jury can award unlimited compensatory damages (emotional distress, pain and suffering) and unlimited punitive damages in FEHA cases. Combined with California's strong plaintiff's attorney fee provisions (Gov. Code § 12965(c)(6)), this creates substantial exposure for employers.

### Available Remedies Under FEHA

• Back pay and front pay
• Compensatory damages (emotional distress) — no cap
• Punitive damages — no cap
• Injunctive relief (including reinstatement)
• Reasonable attorney's fees and costs for prevailing plaintiffs
• Civil penalties in CRD-prosecuted actions

### Administrative Filing

• An employee must file a complaint with CRD within 3 years of the alleged unlawful practice (Gov. Code § 12960(e), extended from 1 year by AB 9, effective January 1, 2020)
• The employee may request an immediate right-to-sue notice from CRD, allowing them to file a civil lawsuit without waiting for CRD investigation

### Civil Lawsuit

• After obtaining a right-to-sue notice, the employee has 1 year to file a civil lawsuit in state court (Gov. Code § 12965(c)(1)(C))
• There is no requirement to exhaust federal EEOC procedures before filing a FEHA claim

### CRD Investigation

• CRD investigates and may issue an accusation
• CRD may seek monetary damages, injunctive relief, and civil penalties
• CRD may file a civil action on behalf of the complainant

FEHA's retaliation provisions (Gov. Code § 12940(h)) protect employees who:

• File or threaten to file a CRD complaint
• Testify, assist, or participate in any CRD proceeding
• Oppose any practice prohibited by FEHA
• Request disability or religious accommodation

### Whistleblower Synergy

• Labor Code § 1102.5 (general whistleblower protection) — protects employees who report suspected violations of law
• Labor Code § 98.6 — protects employees who file complaints with the Labor Commissioner
• These overlapping protections mean that an employee who reports discriminatory conduct internally or to a government agency may have multiple retaliation claims under different statutes with different remedies

### SB 1340 (2024) — Expanded CRD Authority Expanded CRD's authority to investigate and prosecute systemic discrimination cases, including the ability to issue subpoenas and conduct directed investigations without individual complaints.

### AB 2188 (Effective 2024) — Cannabis Discrimination Protection Prohibits discrimination based on off-duty cannabis use and bars pre-employment drug tests that detect non-psychoactive THC metabolites. Exceptions exist for employees in building/construction trades, federal positions requiring clearance, and positions requiring federal background checks.

### SB 523 (Effective 2024) — Reproductive Health Decision-Making Added reproductive health decision-making as a protected class under FEHA. Employers cannot ask about or make employment decisions based on an employee's reproductive health decisions.

### SB 700 (Effective 2024) — Prior Cannabis Use Prohibits employers from asking about or considering a job applicant's prior cannabis use in hiring decisions (with limited exceptions).

### San Francisco

• Fair Chance Ordinance — restricts criminal history inquiries more aggressively than state law (applies to employers with 5+ employees, compared to state Fair Chance Act's coverage of all employers)
• Weight and height discrimination protection — SF Police Code Art. 33, § 3302 prohibits discrimination based on weight and height
• Lactation accommodation — SF requires additional lactation room standards beyond state requirements

### Los Angeles

• Fair Work Week Ordinance — while primarily a scheduling law, it includes anti-retaliation provisions for retail workers who exercise their scheduling rights
• Ban-the-Box — LA's Fair Chance Initiative applies to employers with 10+ employees

### San Jose

• Opportunity to Work Ordinance — requires employers with 36+ employees to offer additional hours to existing part-time employees before hiring new employees, with anti-retaliation protections

### Documentation Requirements

• Training records: Sexual harassment training completion dates, content, and trainer qualifications (retain 3 years minimum)
• Accommodation records: Interactive process documentation, accommodation requests, employer responses, and medical certifications (maintain confidentiality per Gov. Code § 12940(e))
• Complaint files: Internal complaints, investigation reports, findings, and corrective actions (retain at least 4 years per FEHA statute of limitations)
• Hiring records: Applications, interview notes, job postings with selection criteria (retain 4 years)

### Investigation Obligations

When an employer receives a complaint of discrimination or harassment:

1. Promptly investigate — delay can constitute ratification of the conduct
2. Use a trained, neutral investigator — may be internal HR or an outside investigator
3. Interview the complainant, accused, and relevant witnesses
4. Document findings and reach a determination
5. Take appropriate corrective action — proportional to the severity of the finding
6. Follow up to ensure the conduct has stopped and no retaliation has occurred
7. Maintain confidentiality to the extent possible

Failure to promptly and thoroughly investigate can result in employer liability even if the underlying harassment did not occur — the failure to investigate itself creates liability under FEHA (Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021).

1. Verify your harassment training compliance. Pull your training records and confirm that every supervisor has completed 2-hour training and every non-supervisory employee has completed 1-hour training within the last 2 years. If anyone is overdue, schedule training immediately — CRD provides free online courses at calcivilrights.ca.gov.

1. Audit your protected-class awareness. California's list is substantially longer than the federal list. Ensure your managers and HR team know that FEHA covers marital status, reproductive health decisions, off-duty cannabis use, military status, and other classes not protected under federal law. A manager who says "we don't hire people with that kind of lifestyle" may not realize they're describing a FEHA-protected class.

1. Review your interactive process documentation. For every current employee with a known disability or medical restriction, confirm that you have documented the interactive process — including what accommodations were discussed, what was offered, what was accepted or declined, and why any requested accommodation was denied. Under FEHA, failure to engage in the interactive process is an independent violation even if accommodation was ultimately impossible.

1. Update your investigation procedures. Ensure your complaint investigation protocol includes written documentation of every step, a defined timeline (investigate within days, not weeks), and a follow-up mechanism to check for retaliation. In FEHA litigation, the quality of your investigation is often the central issue.

1. Check your city-level obligations. If you have employees in San Francisco, verify compliance with the city's weight/height discrimination protection, enhanced lactation requirements, and the local Fair Chance Ordinance. These go beyond FEHA in specific areas that are easy to overlook.