California Discrimination Laws – How to Bring a Lawsuit

Under the California Fair Employment and Housing Act, it is against the law for employers to discriminate against a protected class of employees or job applicants. Common protected categories include race, religion, gender, sexual orientation, national origin, and age. Common types of discrimination include firing, demoting, or denying promotions to employees.

Here are five key things to know about California discrimination laws:

1. You cannot be discriminated against at work because of your race, sexual orientation, or other protected characteristics.
2. As a victim, you may be entitled to lost wages, emotional distress damages, punitive damages, and job reinstatement.
3. Keep a record of all discriminatory incidents, such as emails, performance evaluations, or other evidence that supports your claim.
4. Prior to filing a lawsuit, you need to file a complaint with the Civil Rights Department or the Equal Opportunity Employment Commission.
5. It is illegal for employers to retaliate against you for filing discrimination complaints.

Below our California labor and employment attorneys discuss the following frequently asked questions about filing an employment discrimination lawsuit in California:

• 1. How do I report discrimination in California?
• 2. How do I prove discrimination at work in California?
• 3. Am I in a protected class in California?
• 4. Is it discrimination if I was never hired?
• 5. Do I have to file a complaint with HR first?
• 6. Do I have to file a complaint with the EEOC?
• 7. How long do I have to sue my employer?
• 8. What are my damages?
• 9. Can I lose my job for filing a workplace discrimination lawsuit?
• 10. What are the 4 types of discrimination?
• 11. What laws prohibit discrimination in California?
• 12. How is discrimination different from quid pro quo sexual harassment and hostile work environments?

If you have further questions after reading this article, we therefore invite you to contact us at Shouse Law Group.

1. How do I report discrimination in California?

Before you can file a lawsuit against an employer for employment discrimination in California, you generally have to first file your complaint with the Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH). An employee or applicant is usually required to exhaust all administrative remedies first. Therefore, this may mean that you have to go through the CRD complaint process before you can file a lawsuit.¹

You can request an immediate right to sue notice, without having to go through a complete CRD or EEOC investigation. However, if you seek an immediate right to sue notice, your complaint will not be investigated by CRD. Alternatively, you may also wait until the CRD

• dismisses your case or
• finds no violation before taking your case to court.²

Filing a lawsuit

According to the CRD, proceeding directly to court without an investigation by the CRD is only advisable if you have an attorney. Your attorney can obtain a right to sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or another relevant county.³

Once you file the lawsuit, the “complaint” will be served upon

• your employer and also
• anyone else named in the lawsuit as a defendant.

The defendants can respond to the complaint with a formal answer responding to the allegations, and the case may then proceed through litigation.

Settlement v. trial

A civil employment discrimination lawsuit can take a long time to make its way through the courts, and could take years. However, as the case gets closer and closer to trial, the case is more likely to settle out of court. At any point before the end of a trial, the employer and you can negotiate a settlement before the court makes a ruling on the case.

If the lawsuit is not settled, it may go to trial and then be heard

• by a jury in a jury trial or
• in front of a judge in a bench trial.

Finally, the judge and jury will hear the evidence and the arguments from each side. The judge or jury will then

• make a finding for or against you on each claim, and also
• determine what damages to award.

2. How do I prove discrimination at work in California?

Most workplace discrimination is subtle. Employers are aware that discrimination could lead to a lawsuit and take steps to make sure they don’t put anything in writing or say anything obvious to you. However, there may be signs of discrimination.

Proof of employment discrimination could involve showing that you are treated differently from other employees. It could also include sudden changes in attitude towards you when an employer finds out you are part of a protected group.

Signs of discrimination

These signs of possible discrimination may involve:

• Sudden changes in job performance reviews
• Exclusion from meetings and events
• Change in work duties or workload increases
• Reduced hours or reduced pay (no equal pay)
• Different rule enforcement involving workers of different backgrounds
• Failure of management to put a stop to racist or sexist jokes in the workplace
• Making fun of your accent or sexual orientation
• Failing to consider applicants with ethnic-sounding names

Finally, employers who are in the same protected class as you can still discriminate. For example, an African-American boss can discriminate against an African-American employee or applicant. A female employer can discriminate against a female applicant because of her gender.

3. Am I in a protected class in California?

Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against you based on protected characteristics, such as:

• race,
• religious creed,
• color,
• national origin,
• ancestry,
• physical disability,
• mental disability,
• medical condition,
• genetic information,
• marital status,
• sex,
• gender,
• gender identity,
• pregnancy,
• gender expression,
• age (40 and over),
• sexual orientation, or
• military and veteran status.⁴

Note that workplace discrimination can typically be classified as either:

• Disparate treatment discrimination, where your employer is intentionally targeting you based on a protected characteristic; or
• Disparate impact discrimination, where a company-wide policy affects employees with certain protected characteristics, even if there is no discriminatory intent.

Both types of discrimination are unlawful.

FEHA’s reach

Furthermore, discrimination in the workplace can affect anyone. It is not limited to minorities. Discrimination based on any of the above categories against anyone in California is unlawful in the workplace. Federal law also prohibits most types of discrimination in employment.

It is also unlawful discrimination if an employer discriminates against you based on your perceived race, sexual orientation, disability, or another protected group. Therefore, this means that even if an employer is wrong about your status, they can still be in violation of the law for discrimination.

Example: An employer thinks an applicant is gay because of the way the applicant dresses or acts during a job interview. The employer does not want to hire gay employees. The employee files a complaint against the employer for discrimination based on sexual orientation. If the applicant was not gay, the employer is still in violation of California laws for discrimination based on perceived sexual orientation.

Note that California’s anti-discrimination laws do not apply to volunteers, who are workers who do not get paid. (However, volunteers are protected by California’s harassment laws.)

When FEHA kicks in

Under the FEHA, it is an unlawful employment practice for an employer to discriminate against you in any aspect of employment. This includes:

1. Refusing to hire or employ
2. Refusing to select you for a training program
3. Firing, bearing, or discharging you
4. Discriminating against you in regard to compensation or in terms, conditions, or privileges of employment.⁵

Employment discrimination is prohibited in any aspect of employment or hiring, including:

• Refusing to provide a reasonable accommodation
• Refusing to engage in a timely, good faith interactive process with you when you are in need of a reasonable accommodation
• Refusing to hire
• Refusing to select for a training program
• Demotion
• Reduced pay
• Deny a promotion
• Deny reinstatement
• Deny benefits
• Forcing you to quit
• Harassment
• Assign different duties
• Discrimination in any way

Unions and labor organizations

The labor laws against employment discrimination are not limited to employers. Employment discrimination laws also apply to unions and labor organizations, which are prohibited from

• excluding,
• expelling, or
• restricting membership based on discriminatory categories.⁶

Furthermore, discrimination prohibitions also apply to apprenticeship training programs and employment agencies.

4. Is it discrimination if I was never hired?

Employment discrimination laws also apply to job applications and interview situations.

Improper job application forms or questions during an interview may be a sign of potential employment discrimination violations. An employer may be violating employment laws when asking questions about your:

• Nationality
• Ancestry
• Race
• Religion
• Sexual orientation
• Maiden name
• Birthplace
• Marital status
• Requiring a photograph
• Mental or physical disability
• Arrest record

Conviction history

California has a “ban the box” law that prohibits employers from asking you about your criminal history until after they have made a conditional offer of employment. Then if they run a background check, they can only withdraw their offer if:

• you have a conviction that has not been sealed or expunged, and
• an individualized assessment of your case indicates that your criminal history has a direct and adverse relationship with the specific duties of the job.⁷

If your employer wrongly discriminates against you based on your criminal record, you can file a complaint with the California Civil Rights Department (CRD).

Medical exams

Employers cannot ask you to take a medical or psychological exam

• if other prospective employees are not also required to take such exams, or
• if the examination is not job-related and consistent with business necessity.

However, an employer may ask you if you can perform the essential functions of the job and how you would perform the job duties.

After you receive a job offer, the employer can then condition the job on you passing a medical exam or answering medical questions only if all new employees in a similar job function have to answer these questions or take a medical exam.

Nepotism

Note that if you apply for a private sector job – and the employer hires someone else instead based on nepotism – you generally do not have grounds to bring a discrimination complaint even if you are far more qualified than the person hired.

However, nepotism is strictly prohibited in public sector jobs. Therefore, you have legal recourse if you were discriminated against based on nepotism.⁸

5. Do I have to file a complaint with HR first?

If an employer refused to hire you for discriminatory reasons, or an employer discriminates against you, there may be no need to go to human resources before filing a discrimination complaint. However, depending on the type of discrimination or harassment involved, it may be necessary or recommended to direct a complaint to a supervisor or human resources office before filing a lawsuit.

Harassment by non-supervisors

When workplace harassment involves a co-worker, or other non-supervisor, the employer may only be liable if the employer was negligent. This means that the employer must:

• Know or should have known that harassment was occurring; and
• The employer failed to take immediate and appropriate corrective action.⁹

Your harassment lawsuit will depend on

• whether the employer took proper measures to prevent harassment in the workplace and
• how the employer responded to complaints or signs of workplace harassment.

Reasonable accommodations

Employers must provide “reasonable accommodation” for you if you are unable to perform the essential functions of the job because of a

• medical condition,
• disability, or
• pregnancy.¹⁰

Employers must also engage in a timely, good-faith interactive process with you if you are in need of a reasonable accommodation. This is to determine whether a reasonable accommodation would allow you to complete the necessary functions to perform the job.¹¹

To conclude, if you need a reasonable accommodation to perform the job, you should communicate your needs to a supervisor or human resources representative. If the employer is not responsive or does not provide a reasonable accommodation, you may want to file a complaint with the EEOC or the CRD.

6. Do I have to file a complaint with the EEOC?

Employment discrimination can be a violation of both California state law and federal law. The Equal Employment Opportunity Commission (EEOC) enforces most federal employment discrimination laws. The California Civil Rights Department (CRD) is the state agency that handles most employment discrimination.

However, in many cases, California law offers broader protections for anti-discrimination cases than federal law. For example, California specifically prohibits

• transgender discrimination and
• discrimination based on sexual orientation.

The federal government has extended protection to gender orientation but those classes are not specifically referenced in federal anti-discrimination laws.

California law prerequisites

California laws may also apply to employers with at least 5 employees. However, certain federal laws only apply to employers with 15 or more employees. For these reasons, you may prefer to file an employment discrimination complaint with the CRD instead of the EEOC. Although, in many cases, a complaint can be crossed between both agencies.

If you want to file a lawsuit against your employer for employment discrimination in California, you are usually required to exhaust all administrative remedies first. This may mean that you have to go through the CRD complaint process before you can file a lawsuit. However, your employment attorney may file a complaint with the CRD and obtain an immediate right to sue notice without waiting for the administrative process first.¹²

Time limits for bringing legal action

You can file an employment discrimination complaint directly with the CRD. In general, you must submit a pre-complaint inquiry within three years of the last incident of discrimination, harassment, or retaliation. However, there are exceptions to this time limit, such as where you did not learn about the unlawful practice until after the expiration of three years.¹³

The complaint can be filed

1. online,
2. by phone, or instead
3. by printing out and mailing the proper form from the CRD website.

The pre-complaint inquiry will initiate an intake interview with the CRD and help determine whether a complaint can be accepted for investigation.

The roadmap of a CRD complaint

An investigator will contact you within 60 days and discuss the details of the alleged discrimination or harassment. If the CRD representative determines the state will not handle the complaint,

1. the matter will be dismissed, and
2. you have the immediate right to sue your employer in court.

Complaint

If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer. The complaint can also be dual-filed with the EEOC at this point.

After the employer responds to the complaint, the CRD will review the answer. In many cases, the CRD will offer dispute resolution services, which provide a way for you and the employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the CRD will initiate an investigation.

Investigation

An employment discrimination investigation will determine whether there was a violation of California anti-discrimination laws.

• If the investigation finds there was a violation, the case will go to the CRD Legal Division.
• If there is no violation, the case will be closed.

If the case is closed, you still have the immediate right to take your case to court.

Mediation

The CRD Legal Division generally requires you to go through mediation. If you cannot settle the dispute through mediation, the CRD could file a lawsuit on behalf of you against the employer. If the CRD does not pursue the claim, it will therefore close the investigation, and you have the immediate right to file a lawsuit against the employer.

7. How long do I have to sue my employer?

Under California law, it is a civil right to have the opportunity to seek and hold employment without discrimination based on race, religion, sexual orientation, and other forms of unlawful discrimination. If you are discriminated against, you can file a lawsuit against your employer for unlawful discrimination.¹⁴

You have a limited time to file a lawsuit against your employer for employment discrimination violations. The time limit depends, in part, on how you handle the complaint. However, in some cases, these deadlines can be longer, or shorter, depending on the circumstances.

California discrimination law violations

In general, you need to file a complaint with the CRD within three years of the last incident of employment discrimination or retaliation. You have to get a Right-to-Sue notice before you can file a lawsuit in civil court. After the state issues you a notice of your right to sue or does not pursue your claim, you then have one year to file a lawsuit in state court.¹⁵

Federal discrimination law violations

If you are filing a federal employment discrimination complaint, you generally have 180 days to file a complaint. However, the EEOC deadline can be extended to 300 days if a state or local agency enforces employment discrimination laws on the same basis. For most employment discrimination claims in California, you would have 300 days to file an EEOC complaint.

In order to file a federal employment discrimination claim, you have to get a notice of right to sue. Then after the EEOC issues a notice of right to sue, you generally have 90 days to file a lawsuit in civil court.

Therefore, talk to a lawyer as soon as you can to make sure you have enough time to file your claim and take your case to court.

8. What are my damages?

The damages available in an employment discrimination lawsuit will depend on a number of factors, including the extent of the discrimination, whether you were subject to any harassment, and the type of harm to you. This may include money damages, punitive damages, and equitable remedies.

Money damages from employment discrimination based may include losses from:

• Back wages (with interest)
• Front pay
• Loss of income from a missed promotion
• Reduced pay after a demotion
• Benefits
• Pension benefits
• Bonus payments
• Pain and suffering
• Emotional distress

Equitable remedies

An employment discrimination lawsuit may also seek what the law calls equitable remedies. Equitable remedies may force an employer to take certain actions. For example, if you were not hired for a discriminatory reason, the court can require the employer to hire you. The court can also require the employer to make reasonable accommodations for you.

Lawyers’ fees

In most employment discrimination lawsuits, employment discrimination or harassment victims can also seek damages for

• the cost of attorney’s fees and also
• court costs.¹⁶

Punitive damages

When the employer’s behavior is especially egregious or malicious, you may also be eligible to receive punitive damages. Punitive damages punish the wrongful behavior of the employer. Therefore, punitive damages also act as a way to deter the employer or other employers from engaging in similar wrongful behavior in the future.¹⁷

9. Can I lose my job for filing a workplace discrimination lawsuit?

Your employer cannot retaliate against you for reporting workplace discrimination against other employees, applicants, or co-workers.¹⁸ The FEHA protects employees who suffer retaliation for:

• Opposing workplace harassment
• Opposing employment discrimination against other employees
• Reporting employment discrimination or workplace harassment
• Assisting with CRD investigations or government inquiries

An employer cannot fire you for filing a workplace discrimination or harassment lawsuit. Consequently, firing you for filing a workplace discrimination claim is a retaliatory action and a type of “wrongful termination”.¹⁹

In conclusion, if an employer retaliates against you for reporting FEHA violations or other employment law violations, you may then be able to file a complaint with the CRD for retaliation. You can also file a lawsuit against the employer for retaliation or wrongful termination.

10. What are the 4 types of discrimination?

In sum, there are typically four bases of workplace discrimination:

1. Sex and gender;
2. Race;
3. Age; and/or
4. Disability.

11. What laws prohibit discrimination in California?

The main state law that prohibit discrimination in California is the Fair Employment and Housing Act (FEHA). The main federal laws that prohibit discrimination throughout the U.S. are:

• Title VII of the Civil Rights Act of 1964;
• Equal Pay Act;
• Age Discrimination Act;
• Genetic Information Nondiscrimination Act of 2008; and
• American With Disabilities Act (ADA).²⁰

Collectively, these laws legislate against sex, race, age, and also disability discrimination.

12. How is discrimination different from quid pro quo sexual harassment and hostile work environments?

Category	Workplace Discrimination	Quid Pro Quo Sexual Harassment	Hostile Work Environment
Definition	Treating you unfavorably or differentially based on your protected characteristics, such as race, sex, religion, disability, or age, in terms of employment decisions or conditions.	A situation where a person in a position of power demands sexual favors or engages in unwelcome sexual advances in exchange for employment benefits or opportunities.	A workplace environment where pervasive or severe unwelcome conduct based on a protected characteristic (usually sex or gender) creates an intimidating or offensive working atmosphere.
Type of Conduct	Treating you unfavorably based on your protected characteristics, such as hiring, firing, promotions, pay, job assignments, or terms and conditions of employment.	Unwelcome sexual advances, requests for sexual favors, or demands for sexual activity in exchange for employment benefits, promotions, or other favorable treatment.	Offensive behavior, including sexual remarks, explicit jokes, unwelcome touching, or displaying sexually explicit material that creates a hostile or abusive atmosphere.
Legal Consequences	Violation of anti-discrimination laws, potential for legal action against the employer.	Violation of anti-sexual harassment laws, potential for legal action against the harasser and employer.	Violation of anti-discrimination laws and potential for legal action against the employer.
Examples	Refusing to hire or promote you based on your race, gender, religion, disability, or other protected characteristics.	A supervisor demanding sexual favors from you in exchange for a promotion or job security.	Inappropriate comments, sexual jokes, unwelcome touching, or displaying explicit material that makes the workplace hostile.

Additional resources

For more information, refer to the following:

• What is Employment Discrimination – Summary by the Equal Employment Opportunity Commission (EEOC).
• Know Your Rights: Workplace Discrimination is Illegal – Info sheet from the U.S. Department of Labor (DOL).
• Discrimination, harassment, and retaliation – Brief guide by USA.gov.
• Types of Discrimination – Overview by the Centers for Disease Control and Prevention (CDC).
• 91% of workers have faced workplace discrimination—here’s what employees can do, expert says: ‘No. 1 is to speak up and document things’ – Article by CNBC.com.

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