Discrimination claims form the basis of many wrongful termination suits. There are both federal and state laws prohibiting discrimination in employment. For a variety of reasons, we recommend that, whenever possible, our clients pursue their discrimination claims in a state court under state law.

California’s anti-discrimination statute is called the “Fair Employment & Housing Act” (“FEHA”) and is part of the Government Code. This law protects the right of all persons to seek, obtain, and hold employment without discrimination based on race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (at least 40), or pregnancy.

What Employers Are Covered?

FEHA defines “employer” as “any person regularly employing five or more persons, or any person acting as an agent of an employer.”

There is one important exception to the five-employee requirement: the prohibition against harassment applies to anyone who regularly employs at least one person or regularly receives the services of at least one independent contractor.

Public employers, including the State of California, cities, counties, local agencies, special districts, and any other political or civil subdivision, must comply with FEHA regardless of how many people they employ.

FEHA exempts religious organizations that are not organized for private profit, subject to special rules for religious organizations that provide health care.

How Do I Prove Discrimination?
There are generally two theories for proving discrimination:

• Disparate treatment occurs when an employer
treates an individual less favorably than
others because of the individual’s protected
status – for example, his or her race, religion,
sex, sexual orientation or age.

•Disparate impact occurs when an employer has an employment practice or a selection policy that
appears neutral but has a disproportionate
adverse impact on members of a protected group.

Is Some Discrimination Lawful?
• Disparate Treatment. Decisions to discharge, take other adverse employment actions, or to refuse to hire an applicant for employment may be lawful if the employer was entitled to consider protected status as a job requirement. This defense is known as a bona fide occupational qualification.

• Disparate Impact. An employment practice or selection policy may be lawful because it is necessary to the employer’s business.

What Damages Are Recoverable?
In a civil action under FEHA, damages for lost earnings, including future lost earnings in certain circumstances, and for emotional distress may be recovered -- if proven. Punitive damages against a private employer may also be awarded if there is clear and convincing evidence of malice, oppression or fraud. Under FEHA, the court also has discretion to award reasonable attorney’s fees and costs, including expert witness fees, to the prevailing party.

What If I Quit?
Discrimination, retaliation or harassment in employment often leads an employee to decide to quit -- usually feeling powerless to do anything about it or too upset to continue to go to work.

You may still have a claim for damages if the discrimination is proven even though you resigned and weren’t discharged. But your decision to resign will be scrutinized and will have to be explained.

If you have a reasonable opportunity to complain about the conduct to a person in authority but don’t do so, this failure on your part will be questioned and even criticized later. Your employer will undoubtedly argue that you did not really want the conduct to stop -- you just wanted a lawsuit -- a chance at the “litigation lottery,” as many employers like to call it.

When in doubt, and if circumstances permit, get competent legal advice before you quit.

Is There Any Step I Should/Must Take Before Suing?

•Using Internal Complaint Procedures. If you believe that you are the victim of discrimination, harassment, or retaliation while you are still employed, you may have an obligation to report the misconduct in an effort to stop or remedy the wrongful conduct. There may be reasons why you do not wish to make a report but, if you sue, you will have to convince a judge or jury that your reasons were good reasons.

•Using FEHA’s Complaint Procedures. Before pursuing a civil suit under FEHA, a person who believes that he/she is the victim of an employer’s violation of the state’s anti-discrimination laws, must first file a complaint with the state’s Department of Fair Employment & Housing (“DFEH”). The complaint is signed under penalty of perjury and must specifically identify the alleged unlawful conduct and the names of all the people being accused.

For more information about DFEH and its services, visit www.dfeh.ca.gov or call 1-800-884-1684. The DFEH office in San Diego can be reached at 619-645-2681.

What are the Time Limits?
In general, a complaint must be filed with the DFEH within one year after the date of the alleged unlawful act of discrimination, harassment or retaliation. [Caution: The time limits for filing with the federal EEOC are shorter.]

You are not alone. See how we will help.

Sexual Harassment
Disability/Pregnancy Discrimination
Wrongful Termination