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Which Employers Are Covered by the Fair Employment and Housing Act?

By on July 29, 2019

A Majority of Employers Are Covered

The Fair Employment and Housing Act creates a comprehensive coverage to protect against employment discrimination by protecting and safeguarding the right and opportunity of all persons to seek, obtain, and hold employment free from discrimination. It requires employers to treat all individuals equally by evaluating each person on the basis of individual skills, knowledge, and abilities and not on the basis of characteristics generally attributed to a group protected by the law. Its monitored and enforced by the Department of Fair Employment and Housing (“DFEH”). The Department of Fair Employment and Housing is authorized by Government Code Section 12930 to receive, investigate, and conciliate complaints alleging discrimination in employment. The Fair Employment and Housing Council (“FEHC”) was created when the Fair Employment and Housing Commission was abolished and is authorized to issue regulations interpreting the Fair Employment and Housing Act.

The regulations make clear that, with extremely limited exceptions, the Fair Employment and Housing Act applies to virtually all California employers, regardless of whether they are operated by the government, or are private, proprietary, or nonprofit. Further, any person acting as an agent of an employer is also considered an “employer.” The three principal exceptions to Fair Employment and Housing Act coverage apply to the following employers: 

  • Small Employers: Businesses and enterprises (other than a government entity) that do not regularly employ five or more persons on a full-time or part-time basis are exempt from most provisions of the FEHA.

However, the FEHA prohibitions against unlawful harassment apply to any person or business that regularly employs one or more persons, as well as to any person acting as an agent of an employer.

Religious Entity Exemption: 

An employer that qualifies as a “religious association or corporation not organized for private profit” is exempt from the FEHA. In 2000, the FEHA was amended to limit the scope of the exemption. As a result of the amendment, health care facilities operated by a religious association or corporation that are not restricted to adherents of the religion are covered as “employers” of persons who perform non-religious duties. 

Two statutory exceptions exist. 

  • Under the first exception, a religious corporation is not an “employer” with respect to either the employment of an individual of a particular religion or the application of the employer’s religious doctrines, tenets, or teachings, in any work connected with the provision of health care. 
  • The second exception provides that the term “employer” does not include a nonprofit public benefit corporation incorporated to provide health care on behalf of a religious organization with respect to employment of an individual of a particular religion in an executive or pastoral -care position connected with the provision of health care.

Government Employers: 

Federal employers are exempt from the Fair Employment and Housing Act. However, the State of California and any county, city, city and county, local agency, special district or political or civil subdivision of the state is subject to the Fair Employment and Housing Act, even if it has fewer than five employees.

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