Gender discrimination - California

Summary of differences between federal and state regulations

Employer defined

Any employer regularly employing five or more persons is covered. Employers include the state, other government bodies, and private employers. Also subject are labor organizations, employment agencies, and apprenticeship programs.

An exception to the five-employee minimum occurs when harassment is at issue. Every employer employing one or more persons or receiving the services of one or more independent contractor(s) is covered by the prohibition of harassment. Additionally, an employee is personally liable for any unlawful employment harassment of another employee.

Religious associations or religious corporations not organized for private profit may be exempt under certain circumstances. Employees of the federal government are protected from discrimination under federal laws.

Unlawful employment practices

The Fair Employment and Housing Act prohibits employment discrimination, harassment and retaliation based upon marital status, sex (including pregnancy, childbirth, or related medical conditions as well as breastfeeding or medical conditions related to breastfeeding), or sexual orientation (heterosexuality, homosexuality, and bisexuality). 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.

If the case is litigated before the Fair Employment and Housing Commission, employees may recover back pay, out-of-pocket losses, and up to $150,000 in combined emotional distress damages per respondent. 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.

Right to wear pants

Employers may not refuse to allow employees to wear pants on the basis of sex unless the employer has a good cause exemption (formally granted by the Fair Employment and Housing Commission) or the employer requires that uniforms or a costume (e.g., for dramatic roles or specific character portrayal) be worn as part of the employment.

Recordkeeping

Covered entities must preserve any and all applications, personnel, membership, or employment referral records and files for a minimum of two years after they are initially created or received. Employers must retain personnel files of applicants or terminated employees for a minimum of two years after the date of the employment action taken.

Upon notice that a verified complaint has been filed, any covered entity must maintain and preserve any and all records and files until the complaint is fully and finally disposed of and all appeals or related proceedings terminated.

A licensing board must keep records of applications for licensing or certification for two years following the date of receipt of the applications.

Posting

All employers must post the Department of Fair Employment and Housing’s poster “Harassment or Discrimination in Employment is Prohibited by Law” (DFEH-162).

State

Contact

Department of Fair Employment and Housing, which prosecutes cases before the Fair Employment Housing Commission

Regulations

California Government Code Sections 12925-12928 and Sections 12940-12951

Federal

Contact

Equal Employment Opportunity Commission (EEOC)

Regulations

29 CFR Part 1604, Guidelines on Discrimination Because of Sex