California — Workplace Discrimination

California's Fair Employment and Housing Act (FEHA) defines an "employer" as any person regularly employing five or more persons. Importantly, FEHA does not distinguish between full-time, part-time, temporary, or out-of-state employees for coverage purposes.

Who counts toward the five-employee threshold?

• Part-time and temporary employees: Any individual who is "regularly employed" by the business is counted, regardless of hours worked or permanence. The statute does not set a minimum hour or tenure requirement; even a regular part-time or temporary employee counts toward the five-person minimum.
• Employees working outside California: FEHA's threshold analysis includes all individuals regularly employed by a California-based employer, even if the employees work out of state. There is no restriction in the statutory language (or published regulatory interpretations) limiting coverage to only in-state staff.
• Joint employees: Where control is shared—such as through a temp agency or a professional employer organization—joint employees are counted toward the threshold of each employer. FEHA applies agency principles in assessing who is an employer (§ 12926(d)).
• W-2 presumption: The statute includes a rebuttable presumption that anyone to whom the business issues a W-2 is an employee for threshold purposes, though this can be overcome with evidence that the relationship was not truly employment.

Regular employment: What counts as "regular" employment is not rigidly defined in the statute, but case law and DFEH/CRD guidance interpret it to mean something ongoing or recurring, not isolated or rarely repeated. Employers who customarily have five or more on payroll, even if numbers occasionally dip, are covered.

State and local government agencies are always covered, regardless of headcount. Religious associations and certain nonprofits are excluded.

Source: Cal. Gov. Code § 12926(d)

California Government Code § 12940(a) makes it unlawful for an employer to discriminate based on 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, or veteran or military status. “Reproductive health decisionmaking” was added as a protected class effective January 1, 2023 by Senate Bill 523 (Contraceptive Equity Act of 2022). This protects any decision relating to the use or access of a particular drug, device, product, or medical service for reproductive health, as specifically addressed in the legislative history and supported by parallel language in Government Code §§ 12920 and 12921.

The statute protects not only individuals who actually possess these characteristics, but also those who are perceived to have them or who associate with persons who have or are perceived to have them. FEHA's protected-class list is broader than federal Title VII in several ways, including explicit enumeration of gender identity, gender expression, and now reproductive health decisionmaking as separate categories.

Source: Cal. Gov. Code § 12940

California Government Code § 12940(n) makes it an unlawful employment practice for an employer or other covered entity to fail to engage in a timely, good faith interactive process with an employee or applicant who has requested reasonable accommodation for a known physical or mental disability or medical condition. This statutory obligation is distinct from—and in addition to—the substantive duty to provide reasonable accommodation under § 12940(m). An employer can face liability for failing to engage in the interactive process even when no reasonable accommodation ultimately exists.

Triggering the employer's duty

An employer must initiate the interactive process when an applicant or employee with a known disability requests reasonable accommodation. The employer must also initiate the process when it otherwise becomes aware of the need for an accommodation through a third party or by observation. Additionally, the employer must initiate the interactive process when it becomes aware of the possible need for an accommodation when an employee with a disability has exhausted leave under federal, state, or private employer leave provisions, but the employee's healthcare provider indicates that further accommodations are still necessary. California courts have held that employees are not required to speak any "magic words" or mention accommodation formally—the obligation arises once the employer becomes aware of the need to consider an accommodation.

Good faith participation

Both the employer and the employee share the obligation to cooperate in good faith during the interactive process. The process requires an individualized assessment of both the job at issue and the specific disability-related limitations of the individual that are directly related to the need for reasonable accommodation. The employer must either grant the requested accommodation or reject it after due consideration and initiate discussion regarding alternative accommodations. When the disability or need for accommodation is not obvious and the employee has not already provided reasonable medical documentation, the employer may request documentation confirming the existence of a FEHA disability and the need for accommodation. However, the employer may not ask for unrelated documentation—in most circumstances, an applicant's or employee's complete medical records are off-limits because those records may contain information unrelated to the need for accommodation. The employer must consider the preference of the applicant or employee to be accommodated, but has the right to implement an accommodation that is effective in allowing the person to perform the essential functions of the job.

Independent statutory violation

Under Government Code § 12940(n), failure to engage in the interactive process is itself a separate unlawful employment practice. California courts have recognized that a claim for failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, but each necessarily implicates the other. Responsibility for the failure of the interactive process rests with the party who failed to participate in good faith. If the employer fails to engage in good faith—for example, by refusing to discuss alternatives, demanding irrelevant medical records, or ignoring a request—the employer can be liable under subdivision (n) even if no reasonable accommodation was ultimately available.

Comparison to federal ADA

The California Attorney General has noted that the duty of an employer to provide a reasonable accommodation for an employee with a disability is broader under FEHA than under the federal ADA. Under FEHA, employers must reasonably accommodate individuals falling within any of FEHA's statutorily defined "disabilities," including those "regarded as" disabled, and must engage in the interactive process to determine effective accommodations. Additionally, under FEHA an employer's failure to engage in the interactive process can be set forth as a separate claim in a lawsuit brought for employment discrimination on the basis of disability.

Source: Cal. Gov. Code § 12940(m), (n)

Source: California Attorney General, Disability Rights in Employment, pp. 5–6

California's Fair Employment and Housing Act (FEHA) prohibits employment discrimination based on age, but its protections are not universal—they are specifically limited to individuals who are 40 years of age or older. This tracks the federal Age Discrimination in Employment Act (ADEA), and differs from other protected classes under FEHA which do not have a minimum age threshold.

Statutory text and scope Government Code § 12926(b) expressly defines "age" for FEHA protection as "the chronological age of any individual who has reached his or her 40th birthday." Section 12941 makes it an unlawful employment practice for an employer to discriminate in hiring, selection, training, or any term, condition, or privilege of employment because of a person’s age, but only when the person is at least 40. There is no FEHA cause of action for age discrimination against an employee or applicant under age 40. California regulations reinforce this definition, confirming that age discrimination is only actionable if the affected worker has reached age 40.

Practical application Employers in California cannot refuse to hire, terminate, or otherwise discriminate against an employee or applicant age 40 or older based on age, unless age is a bona fide occupational qualification—a narrow exception defined by regulation. But workers under 40 do not have recourse under FEHA’s age discrimination provisions, even if other types of discrimination (race, sex, etc.) are protected regardless of age.

Source: Cal. Gov. Code § 12926(b) Source: Cal. Gov. Code § 12941

California’s Fair Employment and Housing Act (FEHA) sets a distinct, lower threshold for workplace harassment claims compared to other forms of discrimination under California law.

Harassment prohibition applies to employers with one or more employees Under Government Code § 12940(j), it is an unlawful employment practice for “an employer” to harass an employee, applicant, volunteer, or person providing services under contract because of any protected characteristic. FEHA explicitly defines "employer" for harassment purposes in § 12940(j)(4)(A) as any person regularly employing one or more persons, or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly.

This is broader than FEHA’s discrimination and retaliation provisions, which apply only to employers with five or more employees under Government Code § 12926(d). The one-employee threshold for harassment purposes means even very small businesses—those with just a single employee—are subject to California’s anti-harassment standards.

Statutory and practical distinctions • Harassment: Covered with one or more employees, Gov. Code § 12940(j). • Discrimination and retaliation: Covered with five or more employees, Gov. Code § 12926(d), § 12940(a), (h). • Mandatory training: Applies with five or more employees, Gov. Code § 12950.1.

In practice, a sole proprietor with a single employee must prevent and remedy unlawful harassment, but does not face FEHA liability for discrimination (except for harassment, which is a separate cause). This distinction reflects legislative recognition that harassment can occur in the smallest workplaces, and FEHA expressly covers those scenarios.

Source: Cal. Gov. Code § 12940(j) Source: Cal. Gov. Code § 12940(j)(4)(A) Source: Cal. Gov. Code § 12926(d) Source: Cal. Gov. Code § 12950.1

California’s Fair Employment and Housing Act (FEHA) sets a firm statute of limitations for filing an employment discrimination complaint with the California Civil Rights Department (CRD, formerly DFEH). Under Government Code § 12960(d), an employee or applicant who believes they have been subjected to unlawful discrimination, harassment, or retaliation at work must file an intake form with the CRD within three years of the alleged discriminatory act or the last incident of harm. This "filing deadline" is sometimes called the FEHA statute of limitations for administrative complaints.

Key provisions:

• The standard deadline is three years from the alleged unlawful practice ("the date upon which the alleged unlawful practice or refusal to cooperate occurred").
• The three-year period applies to all covered forms of workplace discrimination, harassment, or retaliation under Article 1 of FEHA.
• Limited tolling and extension provisions exist:
• If the complainant did not discover the facts constituting the unlawful practice at the time of occurrence, the deadline may be (but is not automatically) extended by 90 days from the date of discovery (§ 12960(d)(3)); this extension is not automatic and requires a finding by the CRD.
• Other statutory events, such as ongoing criminal proceedings or delayed receipt of right-to-sue notices, can toll the filing period as provided by § 12960(d).

Complaints filed after the three-year deadline are barred unless an explicit statutory exception applies. Note that individuals—whether current or former employees or applicants—must file first with the CRD; only after obtaining a right-to-sue notice can a lawsuit be filed in civil court.

Source: Cal. Gov. Code § 12960(d) Source: California Civil Rights Department, Complaint Process