California FEHA Explained: What Employers Should Know
California has some of the strongest workplace protections in the United States.
The primary California law governing workplace discrimination, harassment, retaliation, and reasonable accommodation is the California Fair Employment and Housing Act, commonly known as FEHA.
For employers, especially small and growing businesses, understanding FEHA is important because many employment disputes begin with preventable management, communication, or documentation problems.
What Is FEHA?
The California Fair Employment and Housing Act is found in California Government Code section 12900 and the sections that follow.
FEHA prohibits certain unlawful employment practices, including discrimination, harassment, retaliation, failure to provide reasonable accommodation, and failure to engage in the interactive process.
Depending on the type of claim, FEHA may apply to employers with five or more employees. Workplace harassment protections may apply more broadly.
What Employment Practices Can Violate FEHA?
FEHA may apply to employment decisions involving:
- Hiring
- Promotion
- Compensation
- Work assignments
- Discipline
- Leave
- Accommodation
- Termination
- Other terms and conditions of employment
An employment decision may create legal risk when it is based on a protected characteristic or when an employee is punished for engaging in legally protected activity.
What Characteristics Are Protected Under FEHA?
Protected characteristics under California law include, among others:
- Race
- Color
- National origin
- Ancestry
- Religion
- Age for workers who are 40 or older
- Physical disability
- Mental disability
- Medical condition
- Sex
- Pregnancy
- Gender
- Gender identity
- Gender expression
- Sexual orientation
- Marital status
- Military or veteran status
- Genetic information
California law may recognize additional protections depending on the circumstances.
What Is FEHA Retaliation?
Retaliation occurs when an employer takes an adverse employment action against an employee because the employee engaged in protected activity.
Protected activity may include:
- Reporting discrimination
- Reporting harassment
- Requesting reasonable accommodation
- Participating in an internal investigation
- Filing an administrative complaint
- Supporting another employee's workplace complaint
Examples of possible adverse actions include termination, demotion, suspension, reduction in hours, denial of promotion, or other actions that materially affect employment.
An employee who makes a complaint is not automatically protected from legitimate discipline.
However, the employer should be able to show that the decision was based on a lawful, documented, and non-retaliatory reason.
Does Timing Prove Retaliation?
Close timing between an employee's protected activity and an adverse employment action may support an inference of retaliation.
However, timing alone does not necessarily prove that the employer's stated reason was false or pretextual.
Employers should carefully document performance issues, policy violations, investigations, and decision-making processes, especially when disciplinary action occurs shortly after a complaint or accommodation request.
What Is Reasonable Accommodation?
FEHA may require an employer to provide reasonable accommodation to a qualified employee or applicant with a known disability or medical condition.
Possible accommodations may include:
- Modified work schedules
- Medical leave
- Assistive equipment
- Job restructuring
- Changes to nonessential job duties
- Remote work when appropriate
- Reassignment to a vacant position in certain circumstances
An employer is not necessarily required to provide the exact accommodation requested by the employee.
The accommodation must be evaluated based on the employee's limitations, the essential functions of the position, available alternatives, and whether the accommodation would create an undue hardship.
What Is the Interactive Process?
The interactive process is a timely and good-faith discussion between the employer and employee about possible accommodations.
The employer should not simply ignore, deny, or indefinitely delay an accommodation request.
A proper interactive process may include:
- Identifying the employee's work-related limitations.
- Reviewing the essential functions of the position.
- Requesting appropriate medical information when legally permitted.
- Discussing possible accommodations.
- Evaluating whether an accommodation is effective and reasonable.
- Documenting the discussion and final decision.
A failure to engage in the interactive process may create a separate legal claim, even when the employee's preferred accommodation is not required.
Why Is Documentation Important?
Employment disputes often depend heavily on written records.
Relevant documents may include:
- Performance evaluations
- Written warnings
- Emails and text messages
- Attendance records
- Accommodation communications
- Medical certification records
- Investigation notes
- Personnel policies
- Internal complaint records
- Records explaining disciplinary decisions
Consistent documentation can help demonstrate that an employment decision was based on legitimate business reasons.
Poor, incomplete, or inconsistent documentation may make an otherwise lawful decision more difficult to defend.
Common FEHA Mistakes Made by Employers
Common employer mistakes include:
- Ignoring employee complaints
- Delaying an investigation
- Failing to document performance concerns
- Treating similar employees inconsistently
- Reacting negatively to accommodation requests
- Failing to engage in the interactive process
- Allowing supervisors to make undocumented decisions
- Giving changing explanations for discipline or termination
- Failing to train managers
- Using informal messages that contradict official records
Many of these problems can be reduced through clear policies, manager training, prompt communication, and consistent documentation.
Frequently Asked Questions
Does FEHA Apply to Small Businesses?
Many FEHA employment discrimination provisions generally apply to employers with five or more employees.
Harassment-related protections may apply more broadly.
Coverage depends on the specific legal claim and the facts of the situation.
Can an Employer Terminate an Employee Who Filed a Complaint?
Possibly.
An employee complaint does not prevent an employer from taking legitimate disciplinary action.
However, the employer should have a lawful and well-documented reason that is unrelated to the protected complaint.
Is Remote Work Always Required as an Accommodation?
No.
Remote work may be a reasonable accommodation in some circumstances, but it is not automatically required in every situation.
The employer should evaluate the employee's limitations, essential job duties, operational needs, and possible alternative accommodations.
Must an Employer Approve the Employee's Preferred Accommodation?
Not necessarily.
An employer may offer another effective accommodation when more than one reasonable option is available.
The employer should still participate in a good-faith interactive process.
What Should an Employer Do After Receiving a Workplace Complaint?
The employer should respond promptly, preserve relevant documents, evaluate whether an investigation is necessary, avoid retaliation, and document the steps taken.
The appropriate response depends on the nature and seriousness of the complaint.
Key Takeaways for California Employers
California employers should:
- Respond promptly to workplace complaints.
- Train supervisors and managers.
- Document performance issues consistently.
- Evaluate accommodation requests individually.
- Engage in a timely, good-faith interactive process.
- Avoid retaliatory conduct.
- Review disciplinary decisions for consistency.
- Preserve relevant employment records.
Proactive compliance is generally less expensive and disruptive than defending an employment lawsuit.
Conclusion
FEHA affects many everyday workplace decisions, from hiring and discipline to disability accommodation and termination.
Employers can reduce risk by developing clear policies, responding carefully to employee concerns, documenting legitimate business reasons, and seeking legal guidance before making high-risk employment decisions.
This article is provided for general informational purposes only and does not constitute legal advice. Employment law outcomes depend on the specific facts and applicable law.