Under the Fair Employment and Housing Act, employees are protected from discrimination in the workplace as well as retaliation against fighting discrimination in the workplace. The FEHA does however require employees to take advantage of any and all administrative remedies before they will issue a Notice of Right to Sue. This notice allows the employee in question to pursue legal action for any unlawful business practices.
The FEHA also protects people’s rights to fair housing against discrimination for race, national origin, religion, disability, gender, or family status. Along with the Unruh Civil Rights Act, the FEHA works to ensure all California residents have fair housing opportunities.
What is the Fair Employment and Housing Act?
The Fair Employment and Housing Act protects the people of California from employment and housing discrimination. This includes claims regarding harassment, retaliation, and denial of medical and pregnancy leave. When someone is the victim of employment or housing discrimination, they need to file their complaint with the Department of Fair Employment and Housing. In employment matters, they may also file a complaint with the Equal Employment Opportunity Commission.
FEHA vs EEOC
The California Fair Employment and Housing Act and the Equal Employment Opportunity Commission are similar and support the same goals, but there are some fundamental differences:
FEHA – An act presiding over California state that governs the course of actions that need to be taken in order to pursue legal action against employment and housing discrimination.
EEOC – A federal agency created to investigate incidents of employment discrimination and provide employees with options going forward.
What are the Protected Classes Under FEHA?
The Fair Employment and Housing Act protects people from discrimination due many things including but not limited to:
- Familial Status
- Gender, Gender Identity, and Gender Expression
- Genetic Information
- Marital Status
- Medical Condition or Status
- Military Status
- National Origin
- Pregnancy or Pregnancy Disability
- Race, Color of skin
- Sexual Orientation
- Veteran Status
What Employment Discrimination Looks Like
Employers are bound to anti-discrimination laws throughout the entire job applicant and hiring process including how they advertise open positions to the way they review applications and conduct interviews. From there, anti-discrimination laws are applicable to all aspects of employment including:
- Pay and benefits
- Working conditions
Any public or private company, employment agency, or labor organization with five or more employees must adhere to anti-discrimination laws and may not retaliate against any employee that exercises their right to not be discriminated against in their workplace.
Employers Duties Under FEHA
It is in the best interest of companies to have strict anti-discrimination policies and to prevent workplace discrimination before it happens as this can protect the company from the consequences and resulting legal action.
Some of the guidelines laid out by the FEHA require employers to follow:
- Educating employees of their rights
- Providing written copies of the FEHA in any languages spoken by 10% or more of the workforce
- Providing anti-discrimination and anti-harassment training to employees
- Providing communication opportunities for disabled employees to seek accommodations
All employers with five or more employees in the state of California must remain compliant with the Fair Employment and Housing Act.
FEHA Retaliation is Prohibited by Law
Not only does the FEHA protect employees from discrimination, but it also protects employees from being retaliated against if they complain about discrimination. Some employers may punish employees for filing complaints in a variety of ways such as:
- Pay cuts
- Reducing hours
- Increased workload/the worst assignments
- Hostility severe enough to cause constructive termination
The FEHA has four main factors that determine if someone is being retaliated against:
- The employee’s actions were protected under the FEHA
- The employer’s actions had an adverse effect on the employment of the employee such as demotion or termination
- The protected actions of the employee were a major contributing reason for the employer’s actions
- The employer’s actions were a major contributing cause of harm to the employee
Retaliation for a FEHA Protected Activity
To have a legitimate claim, retaliation or wrongful termination must occur in response to complaints against actions protected under the FEHA.
Opposing Harassment or Discrimination
Employees have a right to refuse to engage in discriminatory behavior and to oppose such behavior in the workplace. Employers are not allowed to retaliate against employees for standing up against harassment, discrimination, or denial of pregnancy or family leave.
When witness to or pressured to participate in discriminatory practices, employees have many options:
- Contacting state agencies for information and advice
- Helping another employee contact state agencies
- Refusing to participate in discriminatory practices
- Acting against discriminatory practices
These actions are protected under the FEHA, and employers are prohibited from retaliating against employees for taking them.
Filing a FEHA Complaint
Employees also have a right to file complaints with the FEHA when they are subjected to harassment or discrimination. Not only is this action protected, but it is often advised to be one of the first steps an employee should take in these situations. Employers are prohibited from retaliating against employees for filing these complaints. Those who do so are committing what is known as whistleblower retaliation.
Providing Assistance in a FEHA Claim
Employees also have a right to assist or participate in someone else’s claim with the FEHA. Employees may be part of FEHA investigations or even lawsuits regarding FEHA violations. Employers are prohibited by the FEHA for retaliating against employees for assisting in these matters.
Requesting Reasonable Accommodations
Employees have a right to request reasonable accommodations for any disabilities, as well as religious purposes. Employers are prohibited from retaliating against employees who request accommodations such as not performing certain tasks or requesting time off for religious observance.
What Qualifies as Adverse Action?
Retaliation does not just mean that an employer is being unpleasant towards their employee, they have to have taken adverse action against them. This is defined as actions that have a material and adverse impact on the terms and/or privileges of the person’s employment to an extent that prevents them from being able to do their job or hinders their ability to move up within the company. This may be a single large impactful action such as demotion or termination, or it could be smaller individual actions that all add up to an adverse effect.
Supervisors and upper management are the ones responsible for retaliation. If an employee is being retaliated against by a coworker, they may still bring a claim against their employer if their supervisor or manager was aware of the retaliation and allowed it to happen or did not take reasonable steps to put an end to it.
Proving Connection Between Retaliation & FEHA Opposition
In order to prove that an employee is being retaliated against for engaging in protected behavior, they must be able to prove a connection between their actions and the adverse actions of their employer. Specifically, they must prove that their actions were a substantial motivating reason for their employer’s actions. This does not mean that it has to have been the only motivating factor, but it does have to be a direct cause. This proof can be circumstantial such as the timing of the events. If an employee had a perfect employment record, filed a complaint with the FEHA, and then was terminated the next day for no reason, they could have a good case for a retaliation claim.
What if There Were Other Reasons That Qualified for Termination?
Many employers will try to argue that they found a valid reason for terminating an employee. This is known as after-acquired evidence. Sometimes, this is a fabrication to cover up the existence of discrimination or retaliation. Sometimes it is true. If an employer had a real substantial reason for terminating an employee, then that employee might not be able to win a wrongful termination suit.
In order for an employer to successfully argue that the termination was rightful, there are a few things they need to prove:
- That the employee was guilty of wrongdoing within their job
- The wrongdoing was substantial or serious enough to warrant termination
- Termination for that type of wrongdoing was in line with company policy
That is not to say that any wrongdoing on the part of the employee will prevent them from winning a wrongful termination suit. Generally, only things like fabricating a job application, breaking the law, or a serious violation of company policy would be enough to affect an employee’s claim.
What to Do If You Have Been Retaliated Against for Taking Action?
If you have been retaliated against by your employer, there are options and steps that you can take. If the retaliation is in the form of adverse action that is not termination, then, if at all possible, it is advised to make a formal written complaint via email to your human resources department, or a different member of upper management. In some instances, this can remedy the situation.
If the matter cannot be resolved, or if the adverse action is termination, then the best option is to file a complaint with the Department of Fair Employment and Housing. This complaint should be as detailed as possible with a comprehensive timeline and the names of those involved. When filing this complaint, you may request an immediate right to sue letter, or choose to wait until the DFEH has conducted their investigation into the complaint. Only after receiving this letter, will you be able to file a lawsuit for DEHA retaliation.
Statute of Limitations for FEHA Claims
Until 2019, the statute of limitations within which to file a complaint with the DFEH was one year from the date of the violation. Employees now have three years from the date of the violation to file their complaint. After the complaint has been filed, the employee has one year from the date that they are issued their right to sue letter in which to file a lawsuit.
AB 9 Extension Impact on Statute of Limitations
In October of 2019, Assembly Bill 9 was signed into law. This bill extended the statute of limitations for filing complaints with the DFEH from one year to three years. This does not affect the one year statute of limitations for filing a lawsuit after receiving a right to sue letter, meaning that employers can be sued up to four years after a violation occurs.
What Damages Can Be Recovered for FEHA Retaliation?
There are many types of damages that an employee may be compensated for in a wrongful termination claim such as:
Lost Wages – The economic damages of money and benefits that the employee would have been earning if they had not been terminated. This can include the costs incurred by searching for a new job and may be reduced by any income being made by similar work after the termination occurred.
Pain and Suffering – The non-economic damages of emotional distress caused from the retaliation and the ordeal of being terminated. This can include stress, reduced quality of life, and anxiety that may be ongoing afterwards.
Attorney’s Fees – In California, judges may award attorney’s fees as part of a retaliation suit.
Punitive – Sometimes, a defendant’s behavior is so egregious as to warrant punishment and a deterrent against that same behavior in the future. In these cases, a judge may award additional punitive damages if there is evidence of malice, oppression, or fraud.
Contact Mesriani Law Group for FEHA Related Injustices
The Fair Employment and Housing Act exists to protect people from workplace harassment and discrimination. When an employer violates the FEHA, it can have a serious detrimental impact on their employees. No one should have to fight for their rights in the workplace. When these violations occur, an employment attorney can help navigate the situation, guide you through the steps you need to take, and help you recover the compensation you deserve. If you have been the victim of an FEHA violation, call Mesriani Law Group today for a free consultation.
What does FEHA prohibit?
Employers are forbidden from harassing their employees or discriminating against them or prospective employees due to any FEHA protected classes such as age, disability, gender, pregnancy, race, religion, or sexual orientation. They are also forbidden from retaliating against employees for engaging in protected activities such as filing a complaint regarding an FEHA violation. Employers are also forbidden from denying family leave to eligible employees.
Does FEHA apply to all employers?
The FEHA applies in its entirety to any and all employers who have at least five or more employees. This may include both public and private employers as well as employment agencies and labor organizations. Employers with even one employee are bound by the FEHA’s regulations against harassment. People who hire independent contractors are also generally bound by FEHA regulations.
What is violation of FEHA?
There are many ways in which an employer may commit a violation of the FEHA including but not limited to:
• Refusing to hire members of a specific race
• Refusing to promote certain genders
• Substantially cutting the hours of an employee who filed a complaint
• Denying an employee pregnancy leave
• Making sexual advances towards an employee
• Failure to provide reasonable accommodations to a disabled employee