Employment Discrimination

Who is covered by the employment part of the Fair Employment and Housing Act?

The FEHA applies to public and private employers, labor organizations, apprentice training programs, employment agencies, and licensing boards. An employer can be one or more individuals, partnerships, corporations or companies. Employers of five or more are subject to the FEHA’s prohibition against employment discrimination. Harassment is prohibited in all workplaces, even those with only one employee or independent contractor on staff. “Employer” does not include the federal government or a non-profit religious association or corporation.

Who can file a complaint of employment discrimination?

Any applicant or employee—or an individual who works in a sheltered workshop or rehabilitation facility—can file an employment discrimination complaint with CRD. This includes applicants for training programs leading to employment. An employee, applicant, unpaid intern, volunteer, or contractor may file a complaint of harassment.

What are the time limits for filing a complaint of employment discrimination?

In general, a complaint of employment discrimination must be filed within three years from the date an alleged discriminatory act occurred. You must file a complaint with CRD even if you wish to file a case directly in court. If you wish to go to court, you can request an immediate “right to sue” notice when you file your complaint.

Must I be a U.S. citizen or legal permanent resident to file a complaint of employment discrimination?

No. The FEHA applies to California workers regardless of their citizenship or immigration status. CRD does not inquire about citizenship or immigration status.

If I already filed a complaint with the Federal Equal Employment Opportunity Commission (EEOC), can I also file with CRD?

If a complaint has been filed with EEOC, it will automatically be filed with CRD as well, although the EEOC will usually investigate. If a complaint is filed with CRD and alleges facts that would violate a law enforced by the EEOC, the complaint is automatically filed with EEOC, although CRD will usually investigate. The worksharing agreement between CRD and EEOC is posted on our website.

How does a person file a complaint of employment discrimination?

Start by filing an “Intake Form.” You can find that form using any of the following methods:

• Online by creating an account and using our interactive California Civil Rights System, CCRS. When you begin, you will see instructions how to open a free account. From then on you can use the service to communicate with CRD.
• Call the Contact Center at 800-884-1684 (voice). If you are deaf or hard of hearing, please call 800-884-1684 (voice or 711 relay operator) or 800-700-2320 (TTY).
• Print and fill out a hard copy of the Intake Form that matches your issue and send it.
• Via U.S. mail to any of CRD’s office locations.
• Via E-mail to contact.center@dfeh.ca.gov.

If you have a disability that prevents you from submitting a written pre-complaint form online, by mail, or email, the CRD can assist you by scribing your pre-complaint by phone or for individuals who communicate by American Sign Language through the relay system. Contact the Contact Center 800-884-1684 (voice or 711 relay operator) or 800-700-2320 (TTY) or by email to contact.center@dfeh.ca.gov to schedule an appointment.

How does CRD conduct an investigation?

CRD gathers evidence to determine if the complainant’s allegations can be proven. The individual filing the complaint is called a complainant and the employer is called a respondent. The investigation process includes gathering evidence from both sides, interviewing the parties and witnesses, and reviewing records. An investigation may be conducted on site and/or through telephone interviews. CRD has the authority to take interviews under oath, issue subpoenas and interrogatories and seek temporary restraining orders during the course of its investigation. All evidence gathered is analyzed to determine if a violation of the Fair Employment and Housing Act has occurred.

How long does it take CRD to conduct an investigation?

In general, CRD has up to one year from the date a CRD complaint is filed to complete an investigation.

How long does CRD retain investigation records?

CRD retains records for 3 years after an investigation is closed.

Does CRD represent complainants?

No. During the investigation, CRD acts as an objective fact-finder, gathering evidence to determine whether the complainant’s allegations can be proven. CRD does not represent either the complainant or the respondent.

If the investigation establishes that there is evidence to support the complainant’s allegations, and the parties do not reach a settlement, CRD’s Legal Division reviews the case for potential litigation in court. CRD has attorneys who prepare and file cases in court.

When CRD decides to sue, it files a civil lawsuit in the name of the Civil Rights Department against the employer. CRD attorneys represent the Department, not the individual complainant. The complainant is a real party in interest in the lawsuit.

Although the assigned CRD attorney is not the complainant’s personal legal advisor, the complainant’s interests are important in the litigation, and the complainant receives 100% of any remedies recovered, with the exception of attorney fees and costs. CRD does not charge complainants attorney fees or expert witness fees, nor does it take a percentage of any award or settlement.

What remedies are available to people who file complaints of employment discrimination?

The remedies available for employment discrimination include:

• Back pay (past lost earnings)
• Front pay (future lost earnings)
• Hiring/Reinstatement
• Promotion
• Out-of-pocket expenses
• Policy changes
• Training
• Reasonable accommodation(s)
• Damages for emotional distress
• Punitive damages
• Attorney’s fees and costs

For what reasons may an employee take leave under the California Family Rights Act (CFRA)?

Please refer to CRD’s Family Care and Medical Leave Fact Sheet.

Can an employer fire an employee who can’t return to work after using all 12 weeks of CFRA or FMLA leave?

Not if the employee used CFRA or FMLA leave for the employee’s own serious health condition. When an employee with a serious health condition can’t return to work after 12 weeks of CFRA or FMLA leave, the employer must initiate an interactive process to consider reasonable accommodations such as additional leave.

Can an employer fire an employee for being out sick?

Not if the employee (a) is disabled and entitled to leave or time off as a reasonable accommodation, or (b) has a “serious health condition” and qualifies for leave under CFRA or FMLA.

• If the employee’s illness qualifies as a disability, the employee is generally entitled to leave or time off as a reasonable accommodation. Mild conditions that do not limit a major life activity, such as the common cold or flu, or minor cuts, bruises, or abrasions do not qualify as disabilities. But even temporary conditions, like a broken bone or pneumonia, qualify as disabilities when they limit a major life activity.
• Sometimes an employee has a “serious health condition” as defined under the California Family Rights Act and qualifies for CFRA leave, but misses work without first requesting leave. If the need for leave is an emergency or otherwise unforeseeable and the employee provides notice of the need for leave as soon as practical, the employer may not deny CFRA leave or fire the employee for failing to provide advanced notice of the need for leave.

Which unfair employment practices can CRD help with?

CRD does not have jurisdiction over all workplace complaints. It can only help resolve employment complaints that involve discrimination or harassment based on a FEHA-protected characteristic such as race, sex, religion, national origin, or disability, for example, or reasonable accommodation, CFRA or PDL complaints.

CRD Cannot Help With
Instead Contact

• Recovering unpaid wages
• Rest break/meal period violations

Labor Commissioner’s Office, Department of Industrial Relations (DIR) – External Site

• Workers’ compensation claims

Division of Workers’ Compensation, Department of Industrial Relations (DIR) – External Site

• Unemployment insurance/paid family leave

Employment Development Department (EDD) – External Site

• Collective bargaining agreement violations

National Labor Relations Board (NLRB) – External Site

What are my employment rights if I am or become pregnant?

• If your employer has five or more employees, you are entitled to rights and protections under California state law in the event of pregnancy, childbirth, loss of pregnancy, and related physical or mental conditions. These rights and protections include the right to reasonable accommodations and the right to time off from work. It is illegal for employers to fire, refuse to hire, bar, harass, discharge, or otherwise discriminate against someone because of pregnancy, childbirth, or a related condition. (Gov. Code, § 12945; Cal. Code Regs., tit. 2, § 11035).
• If you have at least 12 months of service with your employer (and have worked at least 1,250 hours during the previous 12-month period), you are entitled to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. (Gov. Code, § 12945.6(a)(1)).
• An employer covered by these rules can be one or more individuals, partnerships, corporations, companies, labor organizations, apprentice training programs, employment agencies, or licensing boards. (Gov. Code, § 12925; Cal. Code Regs., tit. 2, § 11035(e)).

What is a pregnancy disability?

• A pregnancy disability is a physical or mental condition related to pregnancy or childbirth that prevents you from performing essential duties of your job, or if your job would cause undue risk to you or your pregnancy’s successful completion. Your health care provider should determine whether or not you have a pregnancy disability. (Gov. Code, § 12945; Cal. Code Regs., tit. 2, § 11035(d) & (f)).
• Examples of pregnancy disability include severe morning sickness, prenatal or postnatal care, need for bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, lactation conditions such as mastitis, loss or end of pregnancy, and recovery from loss or end of pregnancy. (Cal. Code Regs., tit. 2, § 11035(f)).

What if I have restrictions due to my pregnancy?

You may be entitled to accommodations if you have a pregnancy disability. Accommodations are changes to the work environment that allow you to perform your job. Examples of changes or accommodations are:

• Modifying work duties to be less strenuous. (Cal. Code Regs., tit. 2, §§ 11040 & 11035(s)(2)).
• Use of a stool or chair while performing work duties. (Cal. Code Regs., tit. 2, §§ 11040 & 11035(s)(4)).
• Temporary transfer to a less strenuous or hazardous job. (Cal. Code Regs., tit. 2, § 11041).
• Longer or more frequent breaks. (Cal. Code Regs., tit. 2, § 11035(s)(5)).
• Private lactation accommodations. (Cal. Code Regs., tit. 2, § 11035(s)(5)).
• Pregnancy Disability Leave (PDL). (Cal. Code Regs., tit. 2, § 11042.
• Additional leave as a reasonable accommodation at the end of PDL.

Whether you are entitled to any particular accommodation will depend upon the circumstances of your pregnancy-related disability and your workplace.

What is Pregnancy Disability Leave (PDL)?

Pregnancy Disability Leave, or PDL, is leave from work to accommodate employees with a pregnancy disability. Your health care provider will recommend how long you need to take leave from work, but you are entitled to up to four months of PDL per pregnancy. (Cal. Code Regs., tit. 2, § 11042). This leave is in addition to any other leave for which you may be eligible under the Fair Employment and Housing Act (FEHA), California Family Rights Act (CFRA), other state laws and local ordinances, or your employer’s leave policies. If your employer has a policy of providing more than four months of leave for other disabilities, then your employer must also provide you the same leave, if required by your pregnancy-related disability.

Am I eligible for PDL?

If your employer employs five or more employees and you have a pregnancy disability, you are eligible for PDL. There is no minimum requirement for number of hours or years worked to be eligible. Your health care provider should recommend PDL for you to apply for it. (Cal. Code Regs., tit. 2, §§ 11035(h) & 11037).>

Do I have to take my PDL all at once?

• No. You may take your PDL all at once or “intermittently.” Intermittent PDL is taking leave in small increments, which can be hours, days, weeks or months. This could mean taking a few hours off every day, or taking a few days or weeks off at a time. See PDL CALCULATION at the end of this FAQ section. (Cal. Code Regs., tit. 2, § 11042(a)).
• EXAMPLES: Working 4 hours per day instead of 8. Working 4 days per week instead of 5. Starting work later in the day 5 days per week. Taking 2 weeks off at a time. Taking 4 months off at once.

How do I request PDL?

If you think you may have to take time off from work for your pregnancy-related disability, inform your employer as soon as possible. If possible, give your employer 30 days’ notice. Your employer must give you a written guarantee that you will be reinstated to your same job after PDL, if you request it. Your employer may require that you provide a written medical certification from your health care provider substantiating your need for leave. (Cal. Code Regs., tit. 2, §§ 11050(a)-(b) & 11042(c)).

Will I lose my job if I take PDL?

It is illegal for your employer to fire you because you are pregnant or because you take PDL. However, PDL does not protect you from employment actions not related to your pregnancy, such as layoffs. Employers are otherwise required by law to reinstate you to the same job you had before taking leave. In some situations, you may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job you had before taking PDL. (Gov. Code, § 12945; Cal. Code Regs., tit. 2, § 11043).

If I am transferred as part of pregnancy disability accommodation, will I be transferred back to my original job?

Yes. Your employer is required to reinstate you to your original job after you are no longer disabled by pregnancy. In some situations, you may be reinstated to a comparable job (same tasks, skills, benefits, and pay). (Cal. Code Regs., tit. 2, § 11041(d)).

Will I be paid if I take PDL?

Maybe. If your employer pays employees for other temporary disability leave, then your employer must pay you for your PDL. You will be paid if you use paid vacation or paid time off during your PDL. You may also collect partial wage replacement if you pay into State Disability Insurance (SDI). (Cal. Code Regs., tit. 2, § 11044(a)). You may also be eligible for paid leave through other state laws or local ordinances, such as Paid Family Leave Benefits.

For more information please visit EDD’s “Am I Eligible for Benefits?” page.

Will PDL count for sick or vacation time?

Your employer may require you to use available sick leave during PDL. If your employer does not require you to use available sick leave during PDL, you may use it at your discretion. Your employer may not require you to use vacation or paid time off. You may use vacation or paid time off at your discretion during PDL. (Cal. Code Regs., tit. 2, § 11044(b)).

Will I continue to be covered by my employer’s group health coverage during PDL?

Yes. Your employer is required to pay for the continuation of your group health coverage (if you are covered by your employer) for all four months of your PDL. (Cal. Code Regs., tit. 2, § 11044(c)).

Will I lose seniority or benefits if I take PDL?

No. You will not lose seniority or benefits while taking PDL. If your employer allows employees to accrue seniority and/or benefits while on other temporary disability leave or during sick or vacation leave, then you will continue to accrue seniority and/or benefits while on PDL. (Cal. CodeRegs., tit. 2, § 11044(d)-(e)).

What if I am still experiencing a pregnancy disability after my four months of PDL are up?Panel 1 Title

If you have completed your four months of PDL, you may be eligible for leave under CFRA and you are still entitled to “reasonable accommodation” under FEHA, which may include additional time off from work (see information about CFRA below). (Gov. Code, §§ 12945, 12945.5; Cal. Code Regs., tit. 2, §§ 11040, 11047, 11087(o) & 11093(e)).

What is a reasonable accommodation?

A reasonable accommodation is a change in the work environment or the way a job is done in order to accommodate your pregnancy disability while still performing the essential functions of your job. This can include taking more leave from work. Talk to your health care provider and your employer about necessary reasonable accommodations. (Gov. Code, § 12945; Cal. Code Regs., tit. 2, §§ 11035(s) & 11046(c)(2)).

What accommodations am I entitled to for lactation?

• You are entitled to breaks while at work to lactate or express milk in private. (Cal. Code Regs., tit. 2, § 11035(s)(5)).
• You may be entitled to PDL for lactation-related medical conditions (such as mastitis). Ask your doctor if you need time off work for a lactation-related medical condition. (Cal. Code Regs., tit. 2, § 11035(d) & (u)).

Am I entitled to leave to bond with my new child?

Yes – if you qualify. After you take PDL, you may be entitled to 12 additional weeks within 12 months of birth, adoption, or beginning of foster care, to bond with your new child under CFRA. Both parents of the child may be entitled to bonding leave. CFRA leave may be limited to 12 weeks total for both parents if both parents work at the same company. However, CFRA has different requirements than PDL. CFRA leave may also be taken to care for a sick family member. (Cal. Code Regs., tit. 2, § 11087(h), (m), & (o)).

What are the CFRA requirements?

Please refer to DFEH’s Pregnancy Disability Leave Fact Sheet.

Am I entitled to any leave in addition to PDL and CFRA bonding leave?

Maybe. The FEHA is clear that PDL operates in addition to other provisions of the Act. You therefore may be entitled to leave as a reasonable accommodation, even beyond what PDL requires. You may also be entitled to leave under the Family & Medical Leave Act (FMLA). Both parents are entitled to FMLA leave. See chart below for more FMLA information. DFEH does not enforce FMLA because it is a federal law under the jurisdiction of the United States government. Please visit Department of Labor’s site for more information. Additionally, you may be entitled to leave under FMLA to care for a family member. (Cal. Code Regs., tit. 2, § 11045). Finally, you may be entitled to leave under local ordinances. The chart below sets forth only the benefits afforded for pregnancy leave.

What if I qualify for PDL, CFRA, and FMLA?

You are entitled to take leave under each law—PDL, CFRA, and FMLA—if you qualify. PDL and FMLA may run at the same time. CFRA will be counted separately from PDL. CFRA will also be counted separately from FMLA taken for pregnancy disability, childbirth, or related medical conditions. PDL and FMLA run at the same time because both cover pregnancy-related medical condition. (Gov. Code, § 12945.2(s)).

I’m transgender and I have a pregnancy disability. Am I eligible for PDL and other reasonable accommodations?

Yes. Transgender employees who have pregnancy disabilities are entitled to all the same rights and accommodations afforded any other employee with pregnancy-related conditions. (Cal. Code Regs., tit. 2, § 11035(f)-(g)).

Can I be fired or otherwise punished for taking PDL or needing reasonable accommodation?

No. It is illegal for an employer to terminate, punish, refuse to hire, harass, or discriminate against you for taking PDL or reasonable accommodation for your pregnancy-related condition. (Gov. Code, § 12945; Cal. Code Regs., tit. 2, §§ 11036 & 11039).

Can my employer require me to take PDL?

• No. Your employer may not force you to take PDL. Even if you choose to not take PDL, you are still entitled to reasonable accommodations for your pregnancy-related condition. (Cal. Code Regs., tit. 2, § 11039(a)(1)(H)).
• EXAMPLE: Your physician recommends that you spend less time than your normal 40 hours per week at work during your pregnancy. If you are able to complete essential functions of your job from home, you may request telework for one day per week as a reasonable accommodation to save your PDL for after childbirth. Your employer is required to grant you this reasonable accommodation and may not require you to use PDL instead of teleworking.

I think my rights to PDL and/or reasonable accommodation have been violated. What do I do?

If you think your rights have been violated, you may file a complaint with DFEH within one year of the date of violation. Visit www.dfeh.ca.gov or call 1 (800) 884-1684 (voice) or email contact.center@dfeh.ca.gov. If you are deaf or hard of hearing, please call (800) 884-1684 (through California’s Relay Service by dialing 711) or (800) 700-2320 (TTY) or email contact.center@dfeh.ca.gov. You may also be able to file a complaint with the Equal Employment Opportunity Commission.

What if I still have questions?

• See Family, Medical, and Pregnancy Disability Leave for Employees in California Toolkit.
• See Interactive App on Job-Protected Leave.
• See lawhelpca.org – External Site.

How do I calculate my pregnancy disability leave?

PDL calculations

Your four months of PDL are calculated based on how many hours you work per week. For this calculation, four months equals 17⅓ weeks. Take the average number of hours you work per week and multiply that number by 17⅓. That will give you the number of hours of leave you are entitled to in your “four months” of PDL. (Cal. Code Regs., tit. 2, § 11042(a)).

# of hours worked per week
x
17-1/3
=
# of hours of PDL

Quick Reference chart

# of hours worked per week
# of hours of Pregnancy Disability Leave

12208
20346.5
28485
32554.5
40693
48832

PDL, CFRA, and FMLA Requirements and Obligations

Please see Leave for Pregnancy Disability and Child Bonding: Quick Reference Guide.

What is sexual harassment?

State regulations define sexual harassment as unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of prohibited behavior:

• Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.
• Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual.
• Physical conduct: touching, assault, impeding or blocking movements.
• Offering employment benefits in exchange for sexual favors.
• Making or threatening retaliatory action after receiving a negative response to sexual advances.

Which employers have to provide training?

By January 1, 2021, an employer having five or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position. This training must be provided once every two years.

What training do employers have to provide?

Employers must provide sexual harassment prevention training in a classroom setting, through interactive E-learning, or through a live webinar. E-learning training must provide instructions on how to contact a trainer who can answer questions within two business days.

Any training must explain:

• The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
• The statutes and case-law prohibiting and preventing sexual harassment;
• The types of conduct that can be sexual harassment;
• The remedies available for victims of sexual harassment;
• Strategies to prevent sexual harassment;
• Supervisors’ obligation to report harassment;
• Practical examples of harassment;
• The limited confidentiality of the complaint process;
• Resources for victims of sexual harassment, including to whom they should report it;
• How employers must correct harassing behavior;
• What to do if a supervisor is personally accused of harassment;
• The elements of an effective anti-harassment policy and how to use it;
• “Abusive conduct” under Government Code section 12950.1, subdivision (g)(2).
• Discuss harassment based on gender identity, gender expression, and sexual orientation, which shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

Finally, any training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.

Which employees do employers have to train?

Employers having five or more employees must train all supervisors in California, as well as nonsupervisory employees in California. A supervisor is anyone with authority to hire, fire, assign, transfer, discipline, or reward other employees. A supervisor is also anyone with the authority to effectively recommend (but not necessarily take) these actions if exercising that authority requires the use of independent judgment.

Who can provide sexual harassment prevention training?

There are three types of qualified trainers:

1. Attorneys who have been members of the bar of any state for at least two years and whose practice includes employment law under the Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964;

2. Human resource professionals or harassment prevention consultants with at least two years of practical experience in:

   • Designing or conducting training on discrimination, retaliation, and sexual harassment prevention;
   • Responding to sexual harassment or other discrimination complaints;
   • Investigating sexual harassment complaints; or
   • Advising employers or employees about discrimination, retaliation, and sexual harassment prevention.

3. Law school, college, or university instructors with a post-graduate degree or California teaching credential and either 20 hours of instruction about employment law under the FEHA or Title VII.

Neither DFEH nor any other state agency issues licenses or certificates validating a person’s qualifications to teach sexual harassment prevention training classes.

What should I do if I experience a sexual assault, sexual violence, or other criminal acts?

If you experience sexual harassment that rises to the level of violence or assault, you should immediately contact law enforcement. Please see the California Attorney General’s webpage on Sexual Violence for more information about sexual violence and available resources for victims of such violence.