Chapter 2 - Employment
The Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) is California's primary law prohibiting discrimination in employment, housing, and public accommodation. In enacting the FEHA, the Legislature declared that it is a civil right to seek, obtain, and hold employment without discrimination, (15) and that it is the public policy of this state to protect and safeguard such rights and opportunities. (16)
The Department of Fair Employment and Housing (DFEH), which prosecutes cases, and the Fair Employment and Housing Commission (FEHC), which rules on cases, are the state agencies charged with enforcing the provisions of the FEHA. (17)
Under the FEHA, if the case is litigated in an administrative hearing before the FEHC, employees who prevail may recover back pay, out-of-pocket losses, and up to $150,000 in combined emotional distress damages per respondent. (18) The administrative fines are payable to the State. (19) If the case is litigated in civil court, the employee may recover unlimited monetary damages, including back pay, emotional distress damages, punitive damages, any other out-of-pocket losses, and attorney's fees and costs, including expert witness fees. (20)
Discrimination Prohibited by the FEHA
The FEHA prohibits employment discrimination, harassment and retaliation based upon race, religious creed, color, national origin, ancestry, physical disability (including AIDS and HIV), mental disability, medical condition, marital status, sex (including pregnancy, childbirth, or related medical conditions), age (40 or older), or sexual orientation (21) (heterosexuality, homosexuality, and bisexuality). (22) The prohibition includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. Physical and mental impairment includes conditions that are disabling, potentially disabling, or perceived as disabling. (23)
Additionally, it is unlawful under the FEHA to refuse to grant a female employee up to four months of pregnancy disability leave. (24) The California Family Rights Act (CFRA) (Gov. Code, § 12945.2) added provisions to the FEHA to provide up to 12 workweeks leave for the reason of the birth of a child of the employee, the placement or adoption of a child by the employee, the serious health condition of the child, parent, spouse, or the employee. (25)
The FEHA also protects employees and contract workers from harassment on any of the prohibited bases in the work place. (26) Harassment because of sex includes sexual harassment, gender harassment, same-sex harassment, and harassment based on pregnancy. (27) Sexual harassment may be "quid pro quo," involving situations where the victim's submission to sexual advances or conduct is made a condition of an employment benefit, or it may create a "hostile work environment," which deprives the employee of a discrimination-free work environment. (28)
Entities and Persons Covered by the FEHA
Generally, any employer regularly employing five or more persons is covered by the FEHA. Such employers include the state, (29) cities, counties, other government bodies and private employers. All governmental employers are covered under the FEHA regardless of size. Also subject to the provisions of the FEHA are labor organizations, employment agencies, and apprenticeship programs. An exception to the five-employee minimum occurs whenever harassment is at issue. Every employer employing one or more persons or receiving the services of one or more independent contractor(s) (30) is subject to the FEHA's prohibition of harassment. (31) Individual co-workers who harass another employee in violation of the FEHA are personally liable. (32)
Religious associations or religious corporations not organized for private profit may be exempt from the provisions of the FEHA under certain circumstances. (33) Employees of the federal government are protected from discrimination under federal laws. Additionally, an employee is personally liable for any unlawful employment harassment of another employee. (34)
Procedures and Remedies
If you have an employment discrimination problem covered by the FEHA, you should file a complaint with the DFEH. Under the FEHA, the DFEH is the administrative agency responsible for investigating and prosecuting violations of the FEHA. A complaint can be filed with the DFEH by an aggrieved person or the Director of the DFEH.
To file a complaint of employment discrimination, call the Department's Communication Center or log onto the DFEH Web site listed below. If the matter falls within the Department's jurisdiction, you, or the person you represent, will be given an appointment for an interview at the nearest DFEH office.
Listed below are the Web site, Communication Center, and District Office addresses and telephone numbers of the DFEH which can help you with employment discrimination complaints.
DFEH website: www.dfeh.ca.gov
DFEH Communication Center:
(800) 884-1684 (Within California)
(916) 227-0551 (Outside California)
(800) 700-2320 TTY
(916) 227-2859 FAX
DFEH District Offices:
Department of Fair Employment & Housing
Bakersfield District Office
1001 Tower Way, #250
Bakersfield, CA 93309-1586
Telephone: (805) 395-2729
Department of Fair Employment & Housing
Fresno District Office
1320 E Shaw, #150
Fresno, CA 93710
Telephone: (559) 244-4760
Department of Fair Employment & Housing
Los Angeles District Office
611 West Sixth Street Suite 1500
Los Angeles, CA 90017
Telephone: (213) 439-6700
Department of Fair Employment & Housing
Oakland District Office
1515 Clay Street, Suite 701
Oakland, CA 94612-2512
Telephone: (510) 622-2941
Department of Fair Employment & Housing
Sacramento District Office
2000 O Street, #120
Sacramento, CA 95814-5212
Telephone: (916) 445-5523
Department of Fair Employment & Housing
San Bernardino District Office
1845 S. Business Ctr. Dr., #127
San Bernardino, CA 92408-3426
Telephone: (909) 383-4373
Department of Fair Employment & Housing
San Diego District Office
350 West Ash Street, #950
San Diego, CA 92101-3901
Telephone: (619) 645-2681
Department of Fair Employment & Housing
San Francisco District Office
455 Golden Gate Avenue, #7600
San Francisco, CA 94102-6073
Telephone: (415) 703-4177
Department of Fair Employment & Housing
San Jose District Office
111 North Market St., #180
San Jose, CA 95113-1102
Telephone: (408) 277-1271
Department of Fair Employment & Housing
Santa Ana District Office
28 Civic Center Drive, #200
Santa Ana, CA 92701-4010
Telephone: (714) 558-4266
Department of Fair Employment & Housing
Ventura District Office
1732 Palma Drive #200
Ventura, CA 93003
Telephone: (805) 654-4514
Unless the discriminatory action taken against you is of a continuing nature, the FEHA requires you to file your complaint with the DFEH within one year of the alleged unlawful employment discrimination. If you do not discover facts about an unlawful employment practice until after the expiration of the one-year filing period, you have an additional 90 days to file a complaint. (35) Once your complaint has been filed, the DFEH may investigate and attempt to resolve your complaint through conciliation and persuasion. If conciliation proves unsuccessful, the DFEH is authorized to prosecute an administrative action against the accused employer by issuing a document referred to as an "accusation." You do not need your own attorney if the DFEH issues an accusation.
You will be issued a "right to sue" letter, notifying you that you can file a private lawsuit in court if you desire. However, you may request a "right to sue" letter immediately upon filing your complaint if you have your own private attorney or choose to represent yourself in a court action.
Once you opt out of the administrative process, all subsequent proceedings will take place through private litigation and the DFEH will no longer be involved.
If you stay in the administrative process, and if the DFEH chooses to institute proceedings itself by issuing an accusation, an evidentiary hearing will begin within 90 days unless waived by the parties. The merits of your employment discrimination complaint will be litigated at this hearing. If the DFEH issues an accusation which asks for either compensatory damages for emotional injury or administrative fines, the employer has the right to opt out of the administrative system and have its case heard by the courts. The FEHC rules on charges brought by the DFEH, and has broad authority to fashion remedies which will effectively carry out and further the purposes of the FEHA. Employees who prevail may recover back pay, out-of-pocket losses, and up to $150,000 in combined emotional distress damages per respondent. (36) The administrative fines are payable to the State. (37) If the case is litigated in civil court, the employee may recover unlimited monetary damages, including back pay, emotional distress damages, punitive damages, any other out-of-pocket losses, attorney's fees and costs, including expert witness fees. (38)
Employment Discrimination Remedies with the State Personnel Board
In addition to the FEHA, other state statutes and constitutional guarantees may also prohibit employment discrimination. Article I, section 8, of the California Constitution provides that a person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. Article I, section 31, of the California Constitution provides in relevant part that the State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (39) An Executive Order prohibits any state entity from discriminating against an employee because of the employee's sexual orientation. (40) Violations of this Executive Order should be reported to the State Personnel Board in writing. The street, Web site and e-mail addresses of the State Personnel Board are as follows:
If you have any questions or need further information regarding this Executive Order, contact:
State Personnel Board, Appeals Division:
General Information Sacramento
General Information Los Angeles
Status of Appeals
Calendaring & Continuances
Transcript, Tape, Document & Administrative Record
TDD (916) 654-2360
The California Equal Pay Law
The California Equal Pay Law, Labor Code section 1197.5, prohibits discrimination against employees on the basis of sex in the payment of wages. Therefore, male and female employees in the same classification who perform substantially the same quantity and quality of work are entitled to equal pay, unless pay differentials are based on bona fide factors other than sex, such as seniority or merit. An employer who denies a person the equal pay guaranteed by this law is liable to the affected employee for any difference in wages due the employee, plus interest. The employer is also liable for damages in an amount equal to the total amount of lost wages.
This law is enforced by the Division of Labor Standards Enforcement (Division) of the State Department of Industrial Relations. If you believe your rights under the Equal Pay Law have been violated, you may file a complaint with the Division. To file a complaint, log onto the Division's Web site at www.dir.ca.gov/dlse or contact the following regional telephone numbers and local offices:
- San Francisco, Oakland, San Jose and Salinas: (415) 557-7878
- San Francisco, P. O. Box 420603, San Francisco, CA 94142-3660
- Oakland, 1515 Clay Street, Suite 801, Oakland, CA 94612
- San Jose, 100 Paseo de San Antonio, Room 120, San Jose, CA 95113
- Salinas, 1870 Main Street, Suite 150, Salinas, CA 93906
- Santa Rosa and Eureka: (707) 445-9067
- Santa Rosa, 50 "D" Street, Suite 360, Santa Rosa, CA 95404
- Eureka, 619 Second Street, Room 109, Eureka, CA 95501
- Sacramento, Redding, Marysville: (916) 323-4920
- Sacramento, 2424 Arden Way, Suite 360, Sacramento, CA 95825
- Redding, 2115 Akard Avenue, Room 17, Redding, CA 96001
- Marysville, 1204 "E" Street, Marysville, CA 95901
- Los Angeles, Santa Ana, Long Beach, Van Nuys: (213) 620-6330
- 320 West 4th Street Los Angeles, CA 90013
- 28 Civic Center Plaza, Room 625, Santa Ana, CA 92701
- 300 Oceangate, Third Floor, Long Beach, CA 90802
- 6150 Van Nuys Blvd., Room 100, Van Nuys, CA 91401
- San Diego: (619) 467-3002
- 8765 Aero Drive, Suite 125, San Diego, CA 92123
- Fresno: (209) 248-8400
- 770 East Shaw Ave, Suite 315 Fresno, CA 93710
- Stockton: (209) 948-7770
- 31 East Channel Street, Room 317 Stockton, CA 95202
- Bakersfield: (805) 395-2710
- 5555 California Ave., Suite 200 Bakersfield, CA 93309
- San Bernardino: (909) 383-4334
- 464 West Fourth Street, Room 348, San Bernardino, CA 92401
- Santa Barbara: (805) 568-1222
- 411 East Canon Perdido Street, Room 3, Santa Barbara, CA 93101
Please note the public information numbers of the Division for the following areas:
Upon the filing of the complaint, the Division is empowered to investigate your allegations to determine their validity. During the course of its investigation, the Division will keep your name confidential unless it becomes necessary to reveal your name to verify your allegations. If the Division verifies your claims, it is then authorized to initiate all necessary proceedings, including a civil lawsuit, to collect any wages and damages due you.
If you consent to the bringing of a civil action by the Division on your behalf, you will be held to have waived your right to file a private lawsuit under the Equal Pay Law. However, if the Division dismisses a civil action after filing it on your behalf, your right to bring a civil action will be renewed. Additionally, if 180 days have passed since the filing of a civil action by the Division, and you have not received your lost wages and damages, you have the right to intervene in the lawsuit brought by the Division.
If you choose not to file a complaint with the Division, you may file your own lawsuit under the Equal Pay Law. If you are successful in a private lawsuit, you may collect lost wages, damages in an amount equal to your lost wages, the costs of your suit, and reasonable attorney's fees. A civil action to recover wages and damages must be filed within two years of the alleged violation except where the violation is willful. If the violation is willful, the complaint must be filed within three years.
Miscellaneous State Laws Prohibiting Employment Discrimination
Various other state statutory provisions also prohibit discrimination in employment, including discrimination in particular jobs or on particular bases.
These provisions include:
- Education Code sections 44337 and 44338 provide that no otherwise qualified person shall be denied the right to receive a teaching credential or training, or to engage in the practice of teaching, on the grounds that he or she is disabled, provided that the person does not pose a direct threat of substantial harm to the health or safety of other individuals.
- Education Code section 44858 prohibits any person charged by a school board with interviewing and recommending persons for employment in positions requiring certification, from refusing to interview or recommend a person for employment because of that person's age or marital status.
- Education Code section 45023.5 requires that all certified public school employees performing like work be paid the same amount for overtime without discrimination based on the employee's sex.
- Education Code section 45193 allows local school districts to provide leaves of absences for any pregnant female employee employed in the classified services of the district.
- Education Code section 45293 provides that no question may be asked of a candidate for a classified services position of any public school system regarding his or her political or religious opinions or affiliations, race, color, national origin, ancestry, sex, or marital status, nor may any candidate be discriminated against on any of these bases.
- Government Code section 11135 prohibits employment discrimination on the basis of ethnic group identification, religion, age, sex, color, or physical or mental disability, by any entity that receives state funding.
- Government Code section 19231, effective January 1, 2001, provides that the definitions in Government Code section 12926 of the FEHA apply to the State Civil Service Act, which prohibits discrimination in civil service employment on the bases of sex, race, religious creed, color, national origin, ancestry, marital status, physical disability, or mental disability.
- Government Code section 18932 declares that there shall not be established any minimum or maximum age limits for any civil service examination, except in the cases of positions involving public health or safety, or involving the powers and duties of a peace officer. Where minimum and maximum age limits are allowed, they must relate to a "bona fide occupational qualification."
- Government Code section 19240, effective January 1, 2001, provides that the definition of disability contained in section 12926 of the FEHA applies to the provisions of the Limited Examination and Appointment Program.
- Government Code section 19701 requires that no person shall be denied state employment because of blindness or color blindness, unless normal eyesight is absolutely necessary for such employment.
- Government Code section 19702 provides that there is to be no discrimination, retaliation or harassment in state employment based on sex, race, religious creed, color, national origin, ancestry, marital status, or physical or mental disability.
- Government Code section 19703 prohibits the asking of any questions relating to political or religious affiliations of any state employee or employment candidate.
- Government Code section 19704 prohibits the making of any notation on a state employment application suggesting or pertaining to the applicant's race, color, religion, sex, or marital status. Subsequent to employment, answers to questions regarding an employee's race, color, religion, sex, or marital status may be obtained for research and statistical purposes only.
- Government Code section 19706 prohibits the notation of the date of birth upon or in any state civil service application under most circumstances.
- Government Code section 20600.1 states that separate rates of contribution into the retirement system or benefit factors for male and female members of the state civil service shall neither be established nor maintained.
- Government Code section 31005 prohibits any county from establishing a minimum or maximum age limit for any county employment
- Government Code section 31006 prohibits any county from failing to hire any person, who is otherwise qualified, solely on account of age.
- Government Code section 45050 prohibits any city from establishing minimum or maximum age limits for any civil service examination.
- Government Code section 45051 prohibits any city from failing to hire a person, who is otherwise qualified, solely on account of age.
- Labor Code sections 230 and 230.1 effective January 1, 2001, enacted the Victims of Domestic Violence Employment Leave Act, which prohibits employers with 25 or more employees from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence and who takes time off from work to seek medical attention for injuries caused by domestic violence, to obtain services from a domestic violence shelter, program, or rape crisis center, to obtain psychological counseling, or to participate in safety planning and take other actions to increase safety from future domestic violence.
- Labor Code sections 1101 and 1102 prohibit employers from adopting or enforcing any rule, regulation, or policy preventing employers from participating in politics or controlling the political activities or affiliations of employees.
- Labor Code section 1153 states that it shall be an unfair labor practice for an agricultural employer to discriminate in regards to the hiring or tenure of employment, or to discriminate against an employee in any condition of employment, for purposes of encouraging or discouraging membership in any labor organization. This section furthermore states that it is an unlawful labor practice to retaliate against an employee because he or she has filed a charge or given testimony regarding an unlawful labor practice.
- Labor Code section 1735 prohibits discrimination against potential employees on public works projects because of their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex.
- Labor Code section 1777.6 prohibits discrimination in the employment of apprentices on any state public works projects because of their race, religious creed, color, national origin, ancestry, sex, or age (provided the person is at least 16 years of age and has entered an apprentice agreement with an employer or program sponsor).
- Labor Code section 3095 makes it a misdemeanor for anyone willfully to discriminate in any apprenticeship program on the basis or race, religious creed, color, national origin, ancestry, or sex.
- Welfare and Institutions Code section 14087.28 prohibits hospitals which participate in the Medi-Cal program from determining medical staff membership or clinical privileges on the basis of sex, race, creed, national origin, or any other criteria lacking professional justification.
Unemployment Insurance Compensation
Under California law, you have a right to unemployment insurance benefits if you quit your job as a result of discriminatory treatment by your employer. Unemployment Insurance Code section 1256.2 states that you have good cause to quit your job if you are discriminated against on the basis of your race, color, religious creed, sex, national origin, ancestry, or physical handicap. Moreover, under Unemployment Insurance Code section 1256.7, you also have good cause to quit your job if you are sexually harassed by your employer. (41) Accordingly, if you are discriminated against on any of the bases set forth in section 1256.2 or are sexually harassed, you may not be disqualified from receiving unemployment insurance benefits if you quit your job. Of course, you must meet all other eligibility requirements under the Unemployment Insurance Code in order to receive benefits. For more information regarding your rights to unemployment insurance compensation, contact your local Employment Development Department (EDD) office for assistance.
It is very important to note that if you do quit your job because you have been discriminated against by your employer and file a claim for unemployment insurance benefits, your employer may appeal any EDD determination that you should receive benefits. If this occurs, you may wish to seek the advice of an attorney. Under California law, if you should subsequently lose your unemployment insurance case, your employer may then be able to use that decision against you in any subsequent discrimination case which you might file with some other governmental agency or in court. In other words, a loss in the unemployment insurance case may prevent you from prevailing in another forum under a different set of laws. If you cannot afford a lawyer and are faced with an employer appeal regarding your unemployment insurance compensation benefits, contact your nearest legal aid office for assistance.
Title VII of the Federal Civil Rights Act of 1964
A key provision of federal law, Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.), also prohibits discrimination in employment.
Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin, in the classification, selection, hiring, promotion, compensation, or termination of employees, or any other discrimination in benefits or other conditions of employment. Title VII establishes a federal agency, the Equal Employment Opportunity Commission (EEOC), to seek out and eliminate unlawful employment practices in accordance with the procedures prescribed by Title VII. Title VII covers state and local governments, private employers with fifteen or more employees, labor organizations, employment services and apprenticeship programs.
You must file your complaint with the EEOC within 300 days of the alleged discrimination or within 30 days of termination of any state proceeding, whichever period expires first. Title VII requires you to file your complaint with the DFEH before allowing you to lodge your Title VII complaint. However, the EEOC and DFEH have a joint filing agreement so a complaint filed with one agency is automatically filed with the other as well.
Like the FEHA, Title VII provides for administrative investigations and a private right of action. However, unlike awards given by the Fair Employment and Housing Commission under the FEHA, administrative findings of the EEOC are not enforceable in court. The EEOC may file a court action to enforce your rights under Title VII, or the EEOC will issue you a "right to sue" letter authorizing you to file your own action in court. If you file a private court action, you may recover back pay and other make-whole relief, injunctive relief, punitive damages, and reasonable attorney fees.
If you have been discriminated against in the area of employment, and want to bring a federal claim based upon Title VII, contact the nearest office of the EEOC. Listed below are the addresses and telephone numbers of the EEOC offices located throughout California:
EEOC website: www.eeoc.gov/
To be automatically connected with the nearest EEOC field office, call:
Fresno Local Office
1265 West Shaw Avenue, Suite 103
Fresno, CA 93711
Los Angeles District Office
255 E. Temple, 4th Floor
Los Angeles, CA 90012
Oakland Local Office
1301 Clay Street, Suite 1170-N
Oakland, CA 94612-5217
San Diego Area Office
401 B Street, Suite 1550
San Diego, CA 92101
San Francisco District Office
901 Market Street, Suite 500
San Francisco, CA 94103
San Jose Local Office
96 North 3rd Street, Suite 200
San Jose, CA 95112
42 U.S.C. § 1981
In addition to Title VII, 42 U.S.C. §1981 (section 1981), provides a federal remedy for some unlawful employment discrimination. Read literally, section 1981 simply provides that all persons have equal rights to make and enforce contracts. However, as interpreted by the United States Supreme Court, section 1981 includes the right to contract for employment free from racial discrimination. (42) Therefore, section 1981 makes it unlawful for an employer to use a person's race as the basis for either interfering with the making of an employment contract or for refusing to enter such a contract.
A recent court decision has limited the reach of section 1981 to discriminatory refusal to enter into a contract, holding that section 1981 does not extend to discriminatory conduct after an employee is hired. (43) However, in certain circumstances you might still wish to pursue a section 1981 action, such as to receive compensatory and punitive damages or if your complaint is untimely under Title
VII. Section 1981 is limited to race discrimination, but it applies to all private employers, regardless of size. Since no agency enforces section 1981, enforcement actions are filed directly in court.
Age Discrimination in Employment Act
The federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.) prohibits discriminatory employment practices based upon age. This act provides protection for individuals who are at least 40 years of age.
The ADEA applies to employers engaged in an industry affecting commerce who employ 20 or more employees, agents of employers, state and local agencies, employment agencies, and labor organizations. (44) The EEOC is authorized to bring actions in federal court to enforce compliance with the ADEA. An aggrieved individual may also bring a private action in federal court under the ADEA. (45) The filing of a private action, however, must be preceded by the filing of a charge of unlawful age discrimination with the EEOC and a 60-day waiting period to allow the EEOC to attempt conciliation. In California, the charge must be filed with the EEOC within 300 days of the alleged discrimination or within 30 days of receiving notice that the California DFEH will not proceed with your claim, whichever is earlier. Because California's FEHA covers age discrimination, you must exhaust your state administrative remedies before filing a civil action under the ADEA. Upon receiving a charge of discrimination from an aggrieved party, the EEOC must promptly notify the prospective defendants and seek to settle the matter. Any private action must be brought within three years of the alleged unlawful act. (46) The applicable statute of limitations is tolled for a period not to exceed one year pending the EEOC's attempt to settle a dispute.
Remedies available in any civil action brought under the ADEA include back pay, hiring, reinstatement, and promotion orders, damages for willful violations, and reasonable attorney's fees. In order to enforce your rights under the ADEA, you should contact any of the EEOC offices listed earlier in this chapter.
Federal Equal Pay Act
The federal Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) contains a provision commonly referred to as the federal "Equal Pay Act" (EPA) (29 U.S.C. § 206(d)). Like California's Equal Pay Law, the federal EPA prohibits employers from maintaining wage differentials based upon sex. The EPA also prohibits labor organizations from causing or attempting to cause an employer to discriminate in the payment of wages based upon the sex of an employee.
The EEOC also has jurisdiction over EPA matters. The EEOC may bring a civil action in federal court on behalf of any aggrieved employee to collect unpaid wages due the employee because of a violation of the EPA. The EEOC can in addition seek damages for the aggrieved employee in an amount equal to the unpaid wages. Injunctive relief is also available. The statute of limitations applicable to an EPA claim also provides for a private right of action in either federal or state court. Accordingly, you can retain an attorney and recover unpaid wages and damages on your own. Attorney's fees may also be awarded to you if you are successful in your lawsuit. As is the case in ADEA actions, if the EEOC brings an action to enforce your rights under the EPA, you must terminate your civil lawsuit. The EPA also contains criminal penalties for willful violations of its provisions. Up to six months in prison and a $10,000 fine may be imposed for such criminal violations.
Unlike Title VII and ADEA claims, you need not file a complaint with the EEOC before you file a private EPA lawsuit. Of course, if you choose not to file a private action, you can always file a complaint with the EEOC, provided you do so within the statute of limitations.
Americans with Disabilities Act of 1990
The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) is a comprehensive federal statute aimed at eliminating discrimination against disabled persons in employment, public services (including transportation), public accommodations, and telecommunications.
The ADA prohibits employment discrimination against a qualified individual with a disability because of that disability in job applications, hiring, advancement, discharge, compensation, job training, and other terms and conditions of employment. (47) An individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, who has a record of such an impairment, or who is regarded as having such an impairment. A qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the job.
Employers are required to provide reasonable accommodation for known limitations of qualified individuals with a disability, unless to do so would impose an undue hardship on the business. The procedures and remedies to redress ADA employment discrimination violations are those provided under Title VII, which, as discussed above, must begin with filing a complaint with the EEOC.
Federal Rehabilitation Act of 1973
The Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.) is a federal law which prohibits certain employers from employment discrimination based upon handicap. The Act contains specific provisions barring employment discrimination against any qualified handicapped person by federal agencies, federal contractors, or recipients of federal financial assistance. The Act's protection extends to all aspects of employment including recruitment, hiring, promotion, benefits, and any other term, condition, or privilege of employment. If any federal funds are received, the Rehabilitation Act affects the entire program.
The Act's nondiscrimination provisions have been implemented by regulations developed by individual federal agencies. The various regulations contain similar guidelines although they differ in some aspects from agency to agency. All are designed to promote equal access to employment opportunities for qualified handicapped individuals.
Under the Rehabilitation Act, a handicapped individual is defined as a person who either has a physical or mental impairment which substantially limits some or more of the person's major life activities, has a record of such an impairment, or is regarded as having such an impairment. However, someone with a contagious disease who is not a direct threat to the health and safety of others, and who is otherwise able to perform the job, is a "handicapped individual" protected by the Rehabilitation Act. (48)
The procedure to follow and remedies available to you under the Rehabilitation Act depend upon who your employer is. If the employer is a federal agency, you may file a complaint with the EEOC. The complaint should be filed within 30 days of the occurrence of the discriminatory act.
Once the complaint is filed with the EEOC, you can bring a private lawsuit if you so desire. You may be awarded back pay and other make-whole relief, and reasonable attorney's fees.
If your employer is a government contractor, you should file your complaint with the United States Department of Labor's Office of Federal Contract Compliance Programs within 180 days of the occurrence of the alleged unlawful discrimination. If that office finds that your employer has violated the Rehabilitation Act, it may instruct the federal agency your employer contracts with to withhold payments from your employer, to terminate your employer's contract, or to bar your employer from receiving future government contracts until the discrimination is remedied. Federal courts across the county are not in agreement as to whether you can bring your own action under the Rehabilitation Act where your employer is a federal contractor.
Finally, the Rehabilitation Act also prohibits employment discrimination against the disabled where the employer is receiving federal funds. Each federal department and agency empowered to give financial assistance is authorized to issue compliance regulations. If there is a violation of the law by your employer, a federal agency has the right to enforce compliance by any authorized means, including the termination of federal funding to the employer until the discrimination is eliminated. An individual who believes that he or she has experienced discrimination generally must file a written complaint with the federal agency within 180 days from the date of the alleged discrimination. If the agency finds that your employer did not violate the Rehabilitation Act, you may appeal this determination to federal court. In most cases, you also can go directly to federal court and bypass the entire administrative process by filing a private lawsuit. In cases involving educational programs funded under the Education of the Handicapped Act (EHA) (20 U.S.C. § 1400 et seq.), however, you may be required to complete the administrative process before going to court.
Recipients of federal funds who violate the Rehabilitation Act can be forced to stop their discriminatory practices or to hire a disabled individual who experienced discrimination. In addition, they may be liable for back pay and reimbursement of some of the victim's costs.
- Government Code section 12921, subdivision (a). Back to link 15
- Government Code section 12920. Back to link 16
- Government Code sections 12930-12935. Back to link 17
- Legislation effective January 1, 2000, increased the money damages from $50,000 to $150,000 per aggrieved person per respondent. (Gov. Code, § 12970, subd. (a)(3).) Back to link 18
- Government Code section 12970, subdivision (d). Back to link 19
- Legislation effective January 1, 2000, added expert witness fees which may be awarded to a prevailing party. However, no attorney's fees, costs or expert witness fees may be awarded to the prevailing party where the action is filed by a public entity or public official, acting in an official capacity. (Gov. Code, § 12965, subd. (b).) Back to link 20
- Legislation effective January 1, 2000, added sexual orientation as a protected basis under the FEHA. (Gov. Code, §§ 12920, 12926, subd. (q).) Previously, discrimination based on sexual orientation in employment was part of the now-repealed Labor Code section 1102.1, which required employees to file their complaints with the Labor Commissioner within 30 days. Under the FEHA, complainants have one year to file such complaints with the DFEH. (Gov. Code, § 12965, subd. (b).) The FEHA's protections extend to actual as well as perceived sexual orientation, and include persons who are discriminated against because of their association with a person who is or is perceived to be of a particular sexual orientation. (Gov. Code, § 12926, subd. (m).) Under former Labor Code section 1102.1, money damages were limited to back pay only. (Lab. Code, § 1102.1, repealed by Stats. 1999, ch. 592 (AB 1001), § 12.) Back to link 21
- Government Code sections 12920, 12921, 12926, subdivision (j), 12940. Back to link 22
- Though interpreted by some that the FEHA had previously provided for a broad range of disability coverage, legislation effective January 1, 2001, officially expanded the scope of physical and mental impairment to include conditions that are disabling, potentially disabling, or perceived as disabling. (Gov. Code, §12926.1, subds. (b) and (c).) In determining whether an individual has a disability under the FEHA, mitigating measures, such as medication or assistive devices, are not considered. Back to link 23
- Government Code section 12945. Back to link 24
- CFRA applies to all California public employers of any size, as well as all private employers that directly employ 50 or more full or part-time persons within a 75-mile radius from the work site where the California employee is employed. (Cal. Code of Regs., tit. 2, § 7297.0, subd. (d).) An eligible employee may take CFRA leave for up to a total of 12 workweeks in a 12-month period for family care and medical leave, but it does not have to be taken in one continuous period of time. (Cal. Code of Regs., tit. 2, § 7297.0, subd. (e).) CFRA need not be taken in one continuous period of time, but it cannot exceed more than 12 workweeks total for any purpose in a 12-month period. (Cal. Code of Regs., tit. 2, § 7297.3.) An employee is required to give at least verbal notice sufficient to make the employer aware that CFRA-qualifying leave is needed. (Cal. Code of Regs., tit. 2, § 7297.4., subd. (a)(1).) The employer may require a certification, but this certification need not disclose the underlying diagnosis of the serious health condition. (Gov. Code, § 12945.2, subds. (j) and (k); Cal. Code Regs., tit. 2, §§ 7297.0, subd. (a)(1) and (2); 7297.4, subd. (b)(1) and (2), and 7297.11.) An employee may elect or an employer may require the employee to substitute accrued vacation leave, other accrued time off, any other paid or unpaid time off negotiated with the employer, or sick leave because of the employee's serious health condition. (Gov. Code, § 12945.2, subd. (e); Cal. Code of Regs., tit. 2, § 7297.5.) During the period that an employee takes CFRA leave, the employer shall maintain and pay for coverage under a group health plan. (Gov. Code, § 12945.2, subd. (f)(1); Cal. Code Regs., tit. 2, § 7297.5, subd. (c).) Back to link 25
- Legislation effective January 1, 2000, covers "a person providing services pursuant to a contract" under the FEHA. The criteria for independent contractor include: (1) a person who has the right to control the performance of the contract; (2) a person who is customarily engaged in an independently established business; and (3) a person who has control over the time and place the work is performed, supplies the tools and instruments used, and performs work that requires a particular skill not ordinarily used in the course of the employer's work. (Gov. Code, § 12940, subd. (j)(5)(A)-(C).) Back to link 26
- Government Code section 12940, subdivision (j)(3)(C); Matthews v. Super. Ct. (1995) 34 Cal.App.4th 598; Mogilefsky v. Super. Ct. (1993) 20 Cal.App.4th 1409. Back to link 27
- Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607-608, 611. Back to link 28
- If you are a state employee, you can also file a discrimination claim with the State Personnel Board in addition to any claims you may separately file under the FEHA. (Gov. Code, § 19702.) The State Personnel Board and the FEHC both have jurisdiction over complaints concerning state employees. (See State Personnel Board v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422). Back to link 29
- See footnote 26. Back to link 30
- Government Code section 12940, subdivision (j). Back to link 31
- Government Code section 12940, subdivision (j)(3). Back to link 32
- The Commission by precedential decision, in Dept. of Fair Employment and Housing v. Hoag Memorial Hospital Presbyterian (1985) FEHC Dec. No. 85-10 [1985 WL 62889 (Cal.F.E.H.C.); 1984-85 CEB 14], has interpreted Government Code section 12926, subdivision (d), to exempt the sectarian activities of religious organizations from coverage under the FEHA. However, the Commission has interpreted this section not to exempt those activities engaged in by such organizations whenever the job at issue is purely secular in nature. Legislation effective January 1, 2001, redefined religious exemption to exclude religious associations or corporations not organized for private profit. Back to link 33
- Legislation effective January 1, 2001, imposes personal liability on an employee who engages in unlawful harassment in employment under the FEHA. (Gov. Code, § 12940, subd. (j).) Back to link 34
- Government Code section 12960. Back to link 35
- Legislation effective January 1, 2000, increased the money damages from $50,000 to $150,000 per aggrieved person per respondent. (Gov. Code, § 12970, subd. (a)(3).) Back to link 36
- Government Code section 12970, subdivision (d). Back to link 37
- Legislation effective January 1, 2000, added expert witness fees which may be awarded to a prevailing party. However, no attorney's fees, costs or expert witness fees may be awarded to the prevailing party where the action is filed by a public entity or public official, acting in an official capacity. (Gov. Code, § 12965, subd. (b).) Back to link 38
- California Constitution, Article I, section 31, added by California Civil Rights Initiative, Primary Election (Prop. 209) (Nov. 5, 1996). Back to link 39
- Executive Order No. B-54-79 (1979). In addition, "[w]ithin 30 days after receipt of notice of termination of a career executive assignment, the affected employee may appeal to the State Personnel Board upon the grounds that the termination was effected for reasons of age, sex, sexual preference as prohibited by Governor's Executive Order B-54-79 (4/4/79), marital status, race, color, national origin, ancestry, disability as defined in Government Code section 19231(a)(1), religion, or religious opinions and affiliations, political affiliation, or political opinions. After hearing the appeal, the board may affirm the action of the appointing power, or restore the affected employee to the career executive assignment." (Cal. Code Regs., tit. 2, § 548.13.) Back to link 40
- You should note that before you quit you are required to take reasonable steps to preserve your employment. Back to link 41
- Runyon v. McCrary (1976) 427 U.S. 160. Back to link 42
- Patterson v. McLean Credit Union (1989) 491 U.S. 164. Back to link 43
- However, the United States Supreme Court has held that, under the 11th Amendment of the U.S. Constitution, state employers are immune from ADEA suits by state employees in federal courts. (Kimel v. Florida Board of Regents (2000) 528 U.S. 62.) Thus, state employees alleging age discrimination in employment must file their claims under the FEHA. Back to link 44
- It should be noted, however, that if the EEOC commences an action under this act, the private lawsuit must be terminated. Back to link 45
- 29 U.S.C. § 255. Back to link 46
- However, the United States Supreme Court has held that, under the 11th Amendment of the U.S. Constitution, state employers are immune from ADA suits by state employees in federal courts. (Bd. of Trustees, U. of Ala. v. Garrett (2001) 531 U.S. 356.) Thus, state employees alleging disability discrimination in employment must file their claims under the FEHA. Back to link 47
- School Board of Nassau County v. Airline (1987) 480 U.S. 273. Back to link 48