TITLE VII & CALIFORNIA’S FEHA:
No Discrimination Based on Race, Religion, Gender or Ethnicity
Discrimination on the basis of race, color, creed, sex or national origin is prohibited under federal law by Title VII of the Civil Rights Act of 1964 (“Title VII”) and under state law by California’s Fair Employment and Housing Act (“FEHA”). See Price v. Civil Service Commission (1980) 26 Cal.3d 257, 271.
California courts often borrow from interpretations of the federal law, but the FEHA generally offers broader employee protections, and cannot be entirely waived by contract, but a contract can require that federal anti-discrimination law applies.
What Acts of “Discrimination” are Prohibited?
Discrimination – Unlawful Employment Practices – can mean:
-Refusing to Hire or Refer for Work
-Firing or Otherwise Terminating or Discharging
-Otherwise discriminating in pay, privileges or terms & conditions of employment
Failing to give a promotion, raise, pension benefits, adjusting test scores, preventing other employment etc. are all covered by the law.
Retaliation:
An employer cannot take adverse employment action against an employee who has opposed or participated in an investigation or proceeding related to an unlawful employment practice.
Under the FEHA, “adverse employment action” is conduct that materially affects the terms, conditions, or privileges of employent. See Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028.
WHO IS COVERED BY THE LAW?
Employers
TITLE VII: Generally applies to employers with 15 or more employees engaged in any industry that affects commerce and their agents. Title VII does not apply to bona fide private member clubs.
FEHA: The FEHA coverage is broad. All employers are subject to some of its provisions, while other provisions apply to employers with 5 or more employees. The specific nature of the claim will determine the employer applicability requirements.
Employees
TITLE VII: Applies to employees, former employees and applicants for employment. Volunteers are not covered, nor are those who are not authorized to work, commonly referred to as “illegal aliens.”
Employment Relationship: Often, questions will arise as to whether an “employment” relationship exists. Occasionally discrimination claims will involve partners, shareholders, independent contractors or joint employers. In these situations, courts will apply a multi-factor analysis to determine whether the relationship is “employment” withing the meaning of the law.
TITLE VII & THE EEOC
Under Title VII, the Equal Employment Opportunity Commission (“EEOC”) is responsible for investigating claims of discrimination and enforcing penalties against employers, unions, and employment agencies.
In addition to Title VII, the EEOC also enforces the Equal Pay Act, the Age Discrimination in Employment Act (“ADEA”) and parts of the Americans with Disabilities Act (“ADA”).
CALIFORNIA’S FEHA & THE DFEH
Administrative enforcement under California’s FEHA is handled by the Department of Fair Employment and Housing (“DFEH”). The DFEH will investigate and can decide to file a civil action itself, or if it decides not to pursue the case, it must notify the employee of their right to bring an action.
The EEOC and DFEH communicate and share work, and also forward complaints to one another where the issues fall under both angencies’ jurisdiction.