The Fair Employment and Housing Act
The California Fair Employment and Housing Act prohibits employment discrimination, harassment and retaliation based upon race, religious creed, color, national origin (including language use restrictions), ancestry, disability (mental and physical including HIV and AIDS), medical condition (cancer/genetic characteristics), marital status, sex (including pregnancy, childbirth, or related medical conditions), age (40 and above), or sexual orientation (heterosexuality, homosexuality, and bisexuality). The prohibition against employment discrimination also includes a perception that the person has any of these characteristics or that the person is associated with a person who has, or is perceived to have, any of these characteristics. The opportunity to seek, obtain and hold employment without discrimination is also recognized as a civil right. See, Department of Fair Employment and Housing.
Disability (Physical, Mental, and Medical)
In general, California law prohibits employment discrimination and harassment based on a person’s disability or perceived disability. It also requires employers to reasonably accommodate individuals with mental or physical disabilities unless the employer can show that to do so would cause an undue hardship. Any employment-related or personnel decision based on either of the following reasons is not discriminatory:
- The person is unable to perform the essential functions of the job and no reasonable accommodation exists that would enable the person to perform the “essential functions” of the job.
- The person would create an imminent and substantial danger to self or others by performing the job and no reasonable accommodation exists that would remove or reduce the danger.
The law covers mental or physical disabilities (including AIDS/HIV), regardless of whether the conditions are presently disabling. It also covers medical conditions, which are defined as either cancer or genetic characteristics.
Disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance abuse disorders resulting from the current illegal use of drugs.
Physical Disability — Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult.
Mental Disability — Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, or having any other mental or psychological disorder or condition that requires special education or related services. An employee who has a record or history of a mental or psychological disorder or condition which is known to the employer, or who is regarded or treated by the employer as having a mental disorder or condition, is also protected.
Medical Condition — Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or a genetic characteristic. A “genetic characteristic” can be a scientifically or medically identifiable gene or chromosome or an inherited characteristic that could statistically lead to increased development of a disease or disorder.
The employer is required to explore with the employee all possible means of reasonably accommodating a person prior to rejecting the person for a job or making any employment-related decision. The accommodation may arise from a mitigating measure, such as medication taken for the primary disability.
An accommodation is reasonable if it does not impose an undue hardship on the employer’s business. Reasonable accommodation can include, but is not limited to, changing job duties or work hours, providing leave, relocating the work area, and/or providing mechanical or electrical aids. An employer may obtain help from government agencies and outside experts to determine whether accommodation is possible.
Independent Medical Opinion
An employer must allow an applicant the opportunity to submit an independent medical opinion if there is a dispute as to whether the person can perform the essential functions of a position. Failure to allow the submission of an independent medical opinion may be a separate violation of the law.
The Fair Employment and Housing Act (FEHA) defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser. The following is a partial list of types of sexual harassment:
- Unwanted sexual advances
- Offering employment benefits in exchange for sexual favors
- Actual or threatened retaliation
- Leering; making sexual gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters
- Making or using derogatory comments, epithets, slurs, or jokes
- Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes or invitations
- Physical touching or assault, as well as impeding or blocking movements
It is unlawful for an employer to discriminate in terms of compensation, conditions, or privileges of employment because of pregnancy. An employee disabled by pregnancy is entitled to up to four months disability leave. If the employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.
An employer, may not refuse to promote a woman or refuse to select her for a training program leading to promotion, provided she is able to complete the training program at least three months prior to the anticipated date of departure for her pregnancy leave, or to discharge her from employment or from a training program leading to promotion, or to discriminate against her in compensation or in terms, conditions, or privileges of employment because of the pregnancy, childbirth, or related medical condition of any female employee.
The California Family Right Act of 1993 (CFRA)
Denial of Family and Medical Care Leave
An employer, may not refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Upon granting the leave request, an employer must guarantee a qualified employee employment in the same or a comparable position upon the termination of the family or medical leave. Leave may be requested for the birth of a child for purposes of bonding, placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent or spouse, or for the employee’s own serious health condition. See, Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA).
Age (40 and over)
Every employer in this state shall permit any employee who indicates in writing a desire in a reasonable time and can demonstrate the ability to do so, to continue their employment beyond any retirement date contained in any private pension or retirement plan. This employment shall continue so long as the employee demonstrates their ability to perform the functions of the job adequately and the employer is satisfied with the quality of work performed. Any employee indicating this desire and continuing the employment shall give the employer written notice in reasonable time, of intent to retire or terminate when the retirement or termination occurs after the employee’s retirement date.
An institution of higher education, may impose a retirement policy for tenured faculty members, provided that the institution has a policy permitting reemployment of these individuals on a year-to-year basis.
Sexual Orientation includes persons who are homosexual, bisexual or heterosexual. 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.
Ralph Civil Rights Act
The Ralph Civil Rights Act, Civil Code Section 51.7, provides that all persons within the state have the right to be free from violence committed against themselves or their property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, position in a labor dispute, or because another person perceives them to have one or more of these characteristics. If someone threatens you or commits a violent act against you because you possess, or are perceived to possess, a characteristic that is shared by members of any identifiable group, you may have a claim under this law. To file a claim you may contact the:
San Diego Human Relations Commission
1200 3rd Street, Suite 916
San Diego, CA 92101
- Law and Legislation, State of California, Department of Justice
- CAHRO – California Association of Human Relations Organizations
Filing a Complaint
The Department of Fair Employment and Housing does not currently accept complaints through the Internet or by mail. To file a complaint please call the San Diego office after reviewing the complaint process. See Department of Fair Employment and Housing.