Employment Law

If an employee has been illegally harassed and/or discriminated against in the workplace and is in a protected class, he or she may be the victim of a hostile work environment and may be entitled to damages under the California Fair Employment and Housing Act of 1959 (“FEHA”), codified as Government Code §§12900 – 12996. The protected classes under this statute are the following: race, color, religion, sex (pregnancy or gender), sexual orientation, marital status, national origin, ancestry, mental and physical disability (including HIV/AIDS), medical condition (cancer/genetic characteristics), age (forty (40) and above), denial of family and medical care leave, and/or denial of pregnancy disability leave.

Additionally, FEHA prohibits workplace retaliation against any employee for making a complaint under FEHA, for assisting another in making such a complaint and/or for opposing any action in the workplace that would constitute a violation of FEHA.

Regardless of size, governmental employers, labor organizations, employment agencies, and apprenticeship programs are covered under FEHA. 

In California, employers of five (5) or more employees are required to provide up to four (4) months disability leave for an employee who is disabled due to pregnancy, childbirth, or a related medical condition.

DISCRIMINATION

FEHA anti-discriminatory provisions are applicable to any employer with five (5) or more employees.

FEHA protects workplace discrimination expressed through official employment actions. For example, an employer’s failure to promote an employee based on illegal discrimination of a protected class is prohibited. The aggrieved employee may recover lost wages, lost benefits, damages for emotional distress/suffering and punitive damages. FEHA anti-discriminatory provisions also extend protection to job applicants prior to commencing work with an employer. For example, it is illegal for employers of five (5) or more employees to discriminate against job applicants because of one (1) or more of the aforementioned protected categories. 

HARASSMENT

FEHA’s anti-harassment provisions apply to any employer with one (1) or more employees and the protection extends to independent contractors, unpaid interns and volunteers. FEHA protects an employee from workplace harassment by a supervisor, non-supervisor co-worker, client and/or independent contractor. There are two types of recognized harassment: (1) “quid pro quo” sexual harassment; and/or (2) “hostile work environment” sexual or non-sexual harassment. The former type of harassment is committed by a supervisor. The latter type of harassment may be committed by a supervisor or a non-supervisor employee.

An employer is strictly liable for sexual harassment committed by a supervisor, whether or not the employer tried to prevent it.

However, only a negligent employer is liable for harassment by a non-supervisor employee, client and/or independent contractor. The employer must have known or should have known that the harassment was occurring and the failed to take immediate and appropriate corrective action. It is not required for the harassed employee to file a formal complaint with Human Resources for the employer to be on notice of the harassment. Additionally, pursuant to California Government Code § 12940(j)(3), “an employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

To prevent workplace harassment, employers of fifty (50) or more employees are required to provide sexual harassment training to supervisory employees.

PROCEDURE

Prior to filing civil suit under FEHA, all administrative remedies must be exhausted. The aggrieved employee must either file a complaint with the Department of Fair Employment and Housing (“DFEH”) or obtain an immediate “right-to-sue” notice from the DFEH. If a complaint is filed with the DFEH, the DFEH will investigate the claim and attempt to mediate.

DFEH may litigate the claim before the Fair Employment and Housing Commission but the damages that may be recovered are more limited than the damages one may recover in a civil suit. If the DFEH decides not to bring suit against the employer, the DFEH must notify the employee of their decision within one hundred and fifty (150) days after receiving the initial complaint. Thereafter, an employee can request the DFEH issue a right-to-sue letter.

The aggrieved employee will have three (3) years from the date of the unlawful conduct to file a charge with the DFEH. Thereafter, the aggrieved employee will have one (1) year to file a civil suit after receiving the right-to-sue notice from the DFEH. In a civil suit under FEHA, it may be possible to recover emotional distress damages, punitive damages, reasonable attorney’s fees, expert witness fees and costs.

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