If you’re running a business in California, or even if you’re just working a 9-to-5 here, you’ve heard of the FEHA. Or, as it’s officially known, the California Fair Employment and Housing Act. It’s the big one. It’s the law that makes the federal Civil Rights Act look like a rough draft.
Most people think they get it. "Don't fire someone for their race or religion." Simple, right? Well, not really. In California, the law is a living, breathing creature that changes almost every legislative cycle. If you haven't looked at the updates from the last two years, you’re basically flying a plane with an outdated manual. Honestly, the gap between what most managers think is legal and what the California Civil Rights Department (CRD) actually enforces is massive.
The FEHA vs. Federal Law: Why California is Different
The federal government has Title VII. California has the FEHA. They aren't the same. While federal law often applies to employers with 15 or more employees, the California Fair Employment and Housing Act kicks in for almost any employer with five or more people.
That’s a huge distinction.
It means the tiny boutique in Silver Lake or the tech startup in a garage in Palo Alto has to follow the same rigorous anti-discrimination rules as a giant like Google. And the list of protected categories? It’s exhaustive. We aren't just talking about the "standard" protections. In California, you’re looking at specific protections for genetic information, gender expression, military status, and even reproductive health decision-making.
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The law is designed to be employee-friendly. That's just the reality of the California legal landscape. While a federal court might throw out a harassment claim because the conduct wasn't "severe or pervasive" enough, California courts have a much lower bar. One bad incident can be enough to trigger a lawsuit under the FEHA.
What You Didn't Know About "Protected Characteristics"
Let’s talk about "perception." This is where a lot of people get tripped up. Under the California Fair Employment and Housing Act, you don't actually have to be part of a protected group to be discriminated against. If an employer perceives you as having a certain disability or belonging to a certain religion and treats you differently because of that perception, they’ve broken the law.
It’s about the intent and the impact, not just the labels.
Then there’s the CROWN Act. This was a major amendment to the FEHA that explicitly prohibits discrimination based on hair texture and protective hairstyles like braids, locks, and twists. It seems specific because it is. California was the first state to do this because the legislature recognized that "professionalism" was often used as a proxy for racial discrimination.
The Accommodation Trap: Disability and Religion
This is where the most expensive mistakes happen.
If an employee has a disability—and "disability" in California is defined much more broadly than under the federal ADA—the employer has a mandatory duty to engage in a "timely, good faith, interactive process." You can't just say "no."
I’ve seen dozens of cases where the employer actually could have accommodated the employee, but they lost the lawsuit because they didn't document the process of trying to find an accommodation. If you don’t sit down, talk through options, and record those conversations, you’re basically handing the plaintiff's attorney a win on a silver platter.
The same applies to religious Creed. If an employee needs a shift swap for the Sabbath or a specific dress code exemption, you have to prove "undue hardship" to deny it. In California, "undue hardship" is a very high bar. It’s not just an inconvenience. It’s an action requiring significant difficulty or expense.
The New Frontier: Criminal History and Cannabis
The FEHA has recently expanded into areas that used to be considered "employer's discretion." Take the Fair Chance Act, which is part of the FEHA. You cannot ask about criminal history on a job application. You can’t even run a background check until after a conditional offer of employment has been made.
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And then there's the 2024 update regarding cannabis.
Unless you’re in building and construction or a job requiring federal background checks, you generally cannot discriminate against a person for using cannabis off-the-clock and away from the workplace. Testing for "non-psychoactive cannabis metabolites" in their system is now a no-go for most California employers. This flipped the script for HR departments that had been using the same drug-testing policies for decades.
Harassment Prevention: It's Not Just a Video
Most companies do the mandatory sexual harassment training every two years. They check the box. They move on.
But the California Fair Employment and Housing Act requires more than just a 60-minute video. It requires an actual policy that is distributed to employees, and that policy must include a complaint mechanism that doesn't just lead back to the direct supervisor. Why? Because the supervisor is often the one being complained about.
The law also covers "third-party harassment." If a client or a contractor is harassing your employee and you know about it (or should have known) and you do nothing? You’re liable. Your "non-employee" status won't save you in a California courtroom.
Retaliation: The "Silent Killer" of Defenses
You might win the discrimination part of the case. You might prove that you fired the person for performance issues. But if that person complained about a "hostile work environment" two weeks before they were fired, you are likely facing a retaliation claim.
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In California, retaliation claims are often easier to prove than the original discrimination claim. All the employee has to show is:
- They engaged in a "protected activity" (like complaining about a supervisor).
- You took an "adverse action" (like firing, demoting, or even just changing their shift).
- There is a causal link.
Timing is everything. If the "adverse action" happens shortly after the complaint, the court assumes retaliation unless you have bulletproof documentation to prove otherwise.
What Most People Get Wrong About FEHA Lawsuits
There's a myth that you can just go straight to court. You can't.
Before an employee can sue under the California Fair Employment and Housing Act, they have to "exhaust their administrative remedies." This means filing a complaint with the CRD and obtaining a "Right to Sue" letter. Most people just get the automated letter immediately, but the step is legally required.
Another misconception: "I'm an at-will state, so I can fire anyone for any reason."
Sure, California is an at-will state. But "at-will" doesn't mean "at-whim." You can fire someone for no reason, but you can’t fire them for an illegal reason. And in California, the list of illegal reasons is so long that "at-will" starts to feel very thin for employers who don't keep meticulous records.
Actionable Steps for Navigating the FEHA
If you’re an employer, you need to stop treating HR as an afterthought. If you’re an employee, you need to know that your rights in California are probably stronger than you realize.
For Employers:
- Audit your handbooks yearly. Not every three years. Not every five. Yearly. Legislative changes in Sacramento happen fast.
- Train your managers on the "Interactive Process." They need to know that when an employee mentions a medical issue, that is the "trigger" for a legal obligation.
- Standardize your "Fair Chance" process. Ensure your background check flow doesn't start until the offer letter is signed.
- Update your drug testing panels. Remove the testing for non-psychoactive cannabis metabolites unless you fall into the narrow exceptions.
For Employees:
- Document everything. If you feel you are being targeted, keep a log of dates, times, and witnesses.
- Follow the internal complaint procedure. It’s harder to claim the company failed to protect you if you never gave them the chance to fix the problem through their stated channels.
- Know the 1-year rule. Generally, you have one year from the date of the "unlawful practice" to file a complaint with the CRD. If you wait too long, you lose your right to sue.
The California Fair Employment and Housing Act isn't just a set of suggestions. It’s one of the most powerful pieces of legislation in the country. Whether you're a CEO or an entry-level clerk, understanding its nuances isn't just "good business"—it's a necessity for survival in the California workforce.
Next Steps for Compliance and Protection
- Download the CRD’s required workplace posters. Ensure they are displayed in a conspicuous place where all employees can see them, or distributed electronically for remote teams.
- Review your "Performance Improvement Plans" (PIPs). Ensure they are objective and documented. A vague PIP is a gift to a plaintiff’s attorney.
- Consult with a California-specific employment attorney. Federal templates or "general" HR advice from the internet will not protect you against the specific rigors of the FEHA.