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What types of claims can an employee allege in a DFEH Complaint?

By on July 29, 2019

Types of Protections: 

Employers that are subject to the Fair Employment and Housing Act are prohibited from discriminating against any person with respect to hiring, firing, compensation, and virtually all terms, conditions, and privileges of employment. Thus, in the absence of a valid defense, such employers will be liable if they discriminate on the basis of any of the following:

  • race
  • color; 
  • national origin;
  • ancestry; 
  • sex (including breastfeeding or medical conditions related to breastfeeding);
  • gender (including a person’s gender identity and gender expression);
  • pregnancy, childbirth, or related medical condition;
  • marital status; 
  • religious creed;
  • physical disability; 
  • mental disability; 
  • medical condition (any health impairment related to or associated with a diagnosis of cancer and genetic characteristics);
  • genetic information;
  • sexual orientation;
  • age 40 or over;
  •  military and veteran status.

Many of the above characteristics are also protected by one of the federal civil rights laws, such as Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. Therefore, in many respects the Fair Employment and Housing Act duplicates the requirements of federal law. However, the Fair Employment and Housing Act prohibits discrimination based on some characteristics left unprotected by the federal laws applicable to a particular employer. For example, while Title VII does not prohibit discrimination based on an individual’s sexual orientation, gender identity, gender expression, marital status, medical condition, or genetic characteristics, California law prohibits such forms of discrimination. 

Also, the Fair Employment and Housing Act is of major significance to California employers since its often the main statute that victims of alleged discrimination base their claims. It also allows greater remedies, and it provides a different enforcement procedure and statute of limitations than exist under federal law. For example, punitive damages and other forms of relief generally available in noncontractual actions under California law may be recovered for certain Fair Employment and Housing Act violations.

Applicants, Employees and Unpaid Interns: 

The protections afforded by the Fair Employment and Housing Act extend to job applicants, employees, and, as of January 1, 2015, unpaid interns. For this purpose, the term “applicant” is defined to include any person who (1) files a written application, (2) otherwise indicates a specific desire to be considered for employment if the employer does not use an application form, or (3) can prove that he or she has been deterred from applying for a job by alleged discriminatory practices. However, it does not include an individual who willingly withdraws an employment application before being interviewed, tested or hired.

Employees and Temporary Help Firms: 

The term “employee” is defined broadly to include anyone under the direction and control of an employer under any oral or written appointment, contract of hire, or apprenticeship. The definition excludes the following individuals: 

  • independent contractors under Section 3353 of the Labor Code (relating to workers’ compensation).
  • children, parents, and spouses of the employer.
  • persons employed under special licenses in a nonprofit sheltered workshop or rehabilitation facility. 
  • employment agencies that procure employees for an employer. 

Partners and Independent Contractors: 

People considered “partners” may seek the protections available under the state and federal employment discrimination laws when the facts demonstrate that they are actually employees. The determination of whether an individual is actually an “employee” generally requires a factual inquiry regarding the following: 

  • the true relationship among the partners, 
  • the method of compensation, 
  • the individual’s responsibility for partnership liabilities, 
  • the management structure of the partnership, and 
  • the individual’s role in that management.
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