What Constitutes Unlawful Discrimination Under The California Fair Employment And Housing Act?

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What Characteristics Are Protected From Discrimination In The Workplace?

Not all discrimination is actionable against an employer. Rather, both federal and state laws prohibit discriminatory employment practices only when based on protected categories. For instance, the Fair Employment and Housing Act (“FEHA”) in California, which provides broader protections than its federal counterparts, prohibits an employer from taking any adverse employment actions based on:

race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, military or veteran status, age (40 years or older), or pregnancy, childbirth, breastfeeding or related medical conditions of any female employee.

As such, an employer cannot refuse to hire, terminate employment, or discriminate in compensation or terms, conditions, or privileges of employment based on the foregoing protected characteristics.

How Can Employees Prove Intentional Discrimination?

To prevail under FEHA, an employee typically shows that he or she was treated differently because of a protected characteristic. Although every case is unique in itself, common ways of proving discriminatory intent are through testimony of other similarly situated individuals who may also have been discriminated against (this is commonly known as “me too” evidence) or by statistical evidence showing a pattern or practice of discrimination by the employer. Additionally, both oral and written remarks about protected traits by a decisionmaker can be relevant evidence to show discriminatory bias.

What Remedies Are Available Under FEHA?

Within 3 years of the last unlawful action, an aggrieved employee must first file an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and exhaust that remedy before initiating a civil action, which in turn must be filed within 1 year of the DFEH’s issuance of a right-to-sue notice.

Remedies for employees unlawfully discriminated against under FEHA may include:

backpay, front pay, injunctive relief, reasonable attorneys’ fees, court costs, compensation for pain and suffering, and punitive damages if a nongovernmental employer is deemed to have acted with oppression, fraud or malice.

If you may have been unlawfully discriminated against in the workplace or are facing frivolous claims of discrimination, contact Lee & Kim LLP at (213) 468-8840 for a free consultation.

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