It is very important to note that if you do quit your job because you have been discriminated against by your employer and file a claim for unemployment insurance benefits, your employer may appeal any EDD determination that you should receive benefits. If this occurs, you may wish to seek the advice of an attorney. Under California law, if you should subsequently lose your unemployment insurance case, your employer may then be able to use that decision against you in any subsequent discrimination case which you might file with some other governmental agency or in court. In other words, a loss in the unemployment insurance case may prevent you from prevailing in another forum under a different set of laws. If you cannot afford a lawyer and are faced with an employer appeal regarding your unemployment insurance compensation benefits, contact your nearest legal aid office for assistance.

Federal Laws

Title VII of the Federal Civil Rights Act of 1964

A key provision of federal law, Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.), also prohibits discrimination in employment.

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin, in the classification, selection, hiring, promotion, compensation, or termination of employees, or any other discrimination in benefits or other conditions of employment. Title VII establishes a federal agency, the Equal Employment Opportunity Commission (EEOC), to seek out and eliminate unlawful employment practices in accordance with the procedures prescribed by Title VII. Title VII covers state and local governments, private employers with fifteen or more employees, labor organizations, employment services and apprenticeship programs.

You must file your complaint with the EEOC within 300 days of the alleged discrimination or within 30 days of termination of any state proceeding, whichever period expires first. Title VII requires you to file your complaint with the DFEH before allowing you to lodge your Title VII complaint. However, the EEOC and DFEH have a joint filing agreement so a complaint filed with one agency is automatically filed with the other as well.

Like the FEHA, Title VII provides for administrative investigations and a private right of action. However, unlike awards given by the Fair Employment and Housing Commission under the FEHA, administrative findings of the EEOC are not enforceable in court. The EEOC may file a court action to enforce your rights under Title VII, or the EEOC will issue you a "right to sue" letter authorizing you to file your own action in court. If you file a private court action, you may recover back pay and other make-whole relief, injunctive relief, punitive damages, and reasonable attorney fees.

If you have been discriminated against in the area of employment, and want to bring a federal claim based upon Title VII, contact the nearest office of the EEOC. Listed below are the addresses and telephone numbers of the EEOC offices located throughout California:

EEOC Web site:  http://www.eeoc.gov/

Field Offices

To be automatically connected with the nearest EEOC field office, call:
Phone: 1-800-669-4000
TDD: 1-800-669-6820

Fresno Local Office

1265 West Shaw Avenue, Suite 103
Fresno, CA 93711
Phone: 559-487-5793
TDD: 559-487-5837

Los Angeles District Office

255 E. Temple, 4th Floor
Los Angeles, CA 90012
Phone: 213-894-1000
TDD: 213-894-1121

Oakland Local Office
1301 Clay Street, Suite 1170-N
Oakland, CA 94612-5217
Phone: 510-637-3230
TDD: 510-637-3234

San Diego Area Office
401 B Street, Suite 1550
San Diego, CA 92101
Phone: 619-557-7235
TDD: 619-557-7232

San Francisco District Office

901 Market Street, Suite 500
San Francisco, CA 94103
Phone: 415-356-5100
TDD: 415-356-5098

San Jose Local Office

96 North 3rd Street, Suite 200
San Jose, CA 95112
Phone: 408-291-7352


42 U.S.C. § 1981

In addition to Title VII, 42 U.S.C. §1981 (section 1981), provides a federal remedy for some unlawful employment discrimination. Read literally, section 1981 simply provides that all persons have equal rights to make and enforce contracts. However, as interpreted by the United States Supreme Court, section 1981 includes the right to contract for employment free from racial discrimination. ⁽⁴²⁾ Therefore, section 1981 makes it unlawful for an employer to use a person's race as the basis for either interfering with the making of an employment contract or for refusing to enter such a contract.

A recent court decision has limited the reach of section 1981 to discriminatory refusal to enter into a contract, holding that section 1981 does not extend to discriminatory conduct after an employee is hired. ⁽⁴³⁾ However, in certain circumstances you might still wish to pursue a section 1981 action, such as to receive compensatory and punitive damages or if your complaint is untimely under Title VII. Section 1981 is limited to race discrimination, but it applies to all private employers, regardless of size. Since no agency enforces section 1981, enforcement actions are filed directly in court.

Age Discrimination in Employment Act

The federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.) prohibits discriminatory employment practices based upon age. This act provides protection for individuals who are at least 40 years of age.

The ADEA applies to employers engaged in an industry affecting commerce who employ 20 or more employees, agents of employers, state and local agencies, employment agencies, and labor organizations. ⁽⁴⁴⁾ The EEOC is authorized to bring actions in federal court to enforce compliance with the ADEA. An aggrieved individual may also bring a private action in federal court under the ADEA. ⁽⁴⁵⁾ The filing of a private action, however, must be preceded by the filing of a charge of unlawful age discrimination with the EEOC and a 60-day waiting period to allow the EEOC to attempt conciliation. In California, the charge must be filed with the EEOC within 300 days of the alleged discrimination or within 30 days of receiving notice that the California DFEH will not proceed with your claim, whichever is earlier. Because California's FEHA covers age discrimination, you must exhaust your state administrative remedies before filing a civil action under the ADEA. Upon receiving a charge of discrimination from an aggrieved party, the EEOC must promptly notify the prospective defendants and seek to settle the matter. Any private action must be brought within three years of the alleged unlawful act. ⁽⁴⁶⁾ The applicable statute of limitations is tolled for a period not to exceed one year pending the EEOC's attempt to settle a dispute.

Remedies available in any civil action brought under the ADEA include back pay, hiring, reinstatement, and promotion orders, damages for willful violations, and reasonable attorney's fees. In order to enforce your rights under the ADEA, you should contact any of the EEOC offices listed earlier in this chapter.

Federal Equal Pay Act

The federal Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) contains a provision commonly referred to as the federal "Equal Pay Act" (EPA) (29 U.S.C. § 206(d)). Like California's Equal Pay Law, the federal EPA prohibits employers from maintaining wage differentials based upon sex. The EPA also prohibits labor organizations from causing or attempting to cause an employer to discriminate in the payment of wages based upon the sex of an employee.

The EEOC also has jurisdiction over EPA matters. The EEOC may bring a civil action in federal court on behalf of any aggrieved employee to collect unpaid wages due the employee because of a violation of the EPA. The EEOC can in addition seek damages for the aggrieved employee in an amount equal to the unpaid wages. Injunctive relief is also available. The statute of limitations applicable to an EPA claim also provides for a private right of action in either federal or state court. Accordingly, you can retain an attorney and recover unpaid wages and damages on your own. Attorney's fees may also be awarded to you if you are successful in your lawsuit. As is the case in ADEA actions, if the EEOC brings an action to enforce your rights under the EPA, you must terminate your civil lawsuit. The EPA also contains criminal penalties for willful violations of its provisions. Up to six months in prison and a $10,000 fine may be imposed for such criminal violations.

Unlike Title VII and ADEA claims, you need not file a complaint with the EEOC before you file a private EPA lawsuit. Of course, if you choose not to file a private action, you can always file a complaint with the EEOC, provided you do so within the statute of limitations.

Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) is a comprehensive federal statute aimed at eliminating discrimination against disabled persons in employment, public services (including transportation), public accommodations, and telecommunications.

The ADA prohibits employment discrimination against a qualified individual with a disability because of that disability in job applications, hiring, advancement, discharge, compensation, job training, and other terms and conditions of employment. ⁽⁴⁷⁾ An individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, who has a record of such an impairment, or who is regarded as having such an impairment. A qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the job.

Employers are required to provide reasonable accommodation for known limitations of qualified individuals with a disability, unless to do so would impose an undue hardship on the business. The procedures and remedies to redress ADA employment discrimination violations are those provided under Title VII, which, as discussed above, must begin with filing a complaint with the EEOC.

Federal Rehabilitation Act of 1973

The Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.) is a federal law which prohibits certain employers from employment discrimination based upon handicap. The Act contains specific provisions barring employment discrimination against any qualified handicapped person by federal agencies, federal contractors, or recipients of federal financial assistance. The Act's protection extends to all aspects of employment including recruitment, hiring, promotion, benefits, and any other term, condition, or privilege of employment. If any federal funds are received, the Rehabilitation Act affects the entire program.

The Act's nondiscrimination provisions have been implemented by regulations developed by individual federal agencies. The various regulations contain similar guidelines although they differ in some aspects from agency to agency. All are designed to promote equal access to employment opportunities for qualified handicapped individuals.

Under the Rehabilitation Act, a handicapped individual is defined as a person who either has a physical or mental impairment which substantially limits some or more of the person's major life activities, has a record of such an impairment, or is regarded as having such an impairment. However, someone with a contagious disease who is not a direct threat to the health and safety of others, and who is otherwise able to perform the job, is a "handicapped individual" protected by the Rehabilitation Act. ⁽⁴⁸⁾

The procedure to follow and remedies available to you under the Rehabilitation Act depend upon who your employer is. If the employer is a federal agency, you may file a complaint with the EEOC. The complaint should be filed within 30 days of the occurrence of the discriminatory act.

Once the complaint is filed with the EEOC, you can bring a private lawsuit if you so desire. You may be awarded back pay and other make-whole relief, and reasonable attorney's fees.

If your employer is a government contractor, you should file your complaint with the United States Department of Labor's Office of Federal Contract Compliance Programs within 180 days of the occurrence of the alleged unlawful discrimination. If that office finds that your employer has violated the Rehabilitation Act, it may instruct the federal agency your employer contracts with to withhold payments from your employer, to terminate your employer's contract, or to bar your employer from receiving future government contracts until the discrimination is remedied. Federal courts across the county are not in agreement as to whether you can bring your own action under the Rehabilitation Act where your employer is a federal contractor.

Finally, the Rehabilitation Act also prohibits employment discrimination against the disabled where the employer is receiving federal funds. Each federal department and agency empowered to give financial assistance is authorized to issue compliance regulations. If there is a violation of the law by your employer, a federal agency has the right to enforce compliance by any authorized means, including the termination of federal funding to the employer until the discrimination is eliminated. An individual who believes that he or she has experienced discrimination generally must file a written complaint with the federal agency within 180 days from the date of the alleged discrimination. If the agency finds that your employer did not violate the Rehabilitation Act, you may appeal this determination to federal court. In most cases, you also can go directly to federal court and bypass the entire administrative process by filing a private lawsuit. In cases involving educational programs funded under the Education of the Handicapped Act (EHA) (20 U.S.C. § 1400 et seq.), however, you may be required to complete the administrative process before going to court.

Recipients of federal funds who violate the Rehabilitation Act can be forced to stop their discriminatory practices or to hire a disabled individual who experienced discrimination. In addition, they may be liable for back pay and reimbursement of some of the victim's costs.

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15. Government Code section 12921, subdivision (a).

16. Government Code section 12920.

17. Government Code sections 12930-12935.

18. Legislation effective January 1, 2000, increased the money damages from $50,000 to $150,000 per aggrieved person per respondent. (Gov. Code, § 12970, subd. (a)(3).)

19. Government Code section 12970, subdivision (d).

20. Legislation effective January 1, 2000, added expert witness fees which may be awarded to a prevailing party. However, no attorney's fees, costs or expert witness fees may be awarded to the prevailing party where the action is filed by a public entity or public official, acting in an official capacity. (Gov. Code, § 12965, subd. (b).)

21. Legislation effective January 1, 2000, added sexual orientation as a protected basis under the FEHA. (Gov. Code, §§ 12920, 12926, subd. (q).) Previously, discrimination based on sexual orientation in employment was part of the now-repealed Labor Code section 1102.1, which required employees to file their complaints with the Labor Commissioner within 30 days. Under the FEHA, complainants have one year to file such complaints with the DFEH. (Gov. Code, § 12965, subd. (b).) The FEHA's protections extend to actual as well as perceived sexual orientation, and include persons who are discriminated against because of their association with a person who is or is perceived to be of a particular sexual orientation. (Gov. Code, § 12926, subd. (m).) Under former Labor Code section 1102.1, money damages were limited to back pay only. (Lab. Code, § 1102.1, repealed by Stats. 1999, ch. 592 (AB 1001), § 12.)

22. Government Code sections 12920, 12921, 12926, subdivision (j), 12940.

23. Though interpreted by some that the FEHA had previously provided for a broad range of disability coverage, legislation effective January 1, 2001, officially expanded the scope of physical and mental impairment to include conditions that are disabling, potentially disabling, or perceived as disabling. (Gov. Code, §12926.1, subds. (b) and (c).) In determining whether an individual has a disability under the FEHA, mitigating measures, such as medication or assistive devices, are not considered.

24. Government Code section 12945.

25. CFRA applies to all California public employers of any size, as well as all private employers that directly employ 50 or more full or part-time persons within a 75-mile radius from the work site where the California employee is employed. (Cal. Code of Regs., tit. 2, § 7297.0, subd. (d).) An eligible employee may take CFRA leave for up to a total of 12 workweeks in a 12-month period for family care and medical leave, but it does not have to be taken in one continuous period of time. (Cal. Code of Regs., tit. 2, § 7297.0, subd. (e).) CFRA need not be taken in one continuous period of time, but it cannot exceed more than 12 workweeks total for any purpose in a 12-month period. (Cal. Code of Regs., tit. 2, § 7297.3.) An employee is required to give at least verbal notice sufficient to make the employer aware that CFRA-qualifying leave is needed. (Cal. Code of Regs., tit. 2, § 7297.4., subd. (a)(1).) The employer may require a certification, but this certification need not disclose the underlying diagnosis of the serious health condition. (Gov. Code, § 12945.2, subds. (j) and (k); Cal. Code Regs., tit. 2, §§ 7297.0, subd. (a)(1) and (2); 7297.4, subd. (b)(1) and (2), and 7297.11.) An employee may elect or an employer may require the employee to substitute accrued vacation leave, other accrued time off, any other paid or unpaid time off negotiated with the employer, or sick leave because of the employee's serious health condition. (Gov. Code, § 12945.2, subd. (e); Cal. Code of Regs., tit. 2, § 7297.5.) During the period that an employee takes CFRA leave, the employer shall maintain and pay for coverage under a group health plan. (Gov. Code, § 12945.2, subd. (f)(1); Cal. Code Regs., tit. 2, § 7297.5, subd. (c).)

26. Legislation effective January 1, 2000, covers "a person providing services pursuant to a contract" under the FEHA. The criteria for independent contractor include: (1) a person who has the right to control the performance of the contract; (2) a person who is customarily engaged in an independently established business; and (3) a person who has control over the time and place the work is performed, supplies the tools and instruments used, and performs work that requires a particular skill not ordinarily used in the course of the employer's work. (Gov. Code, § 12940, subd. (j)(5)(A)-(C).)

27. Government Code section 12940, subdivision (j)(3)(C); Matthews v. Super. Ct. (1995) 34 Cal.App.4th 598; Mogilefsky v. Super. Ct. (1993) 20 Cal.App.4th 1409.

28. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607-608, 611.

29. If you are a state employee, you can also file a discrimination claim with the State Personnel Board in addition to any claims you may separately file under the FEHA. (Gov. Code, § 19702.) The State Personnel Board and the FEHC both have jurisdiction over complaints concerning state employees. (See State Personnel Board v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422).

30. See footnote 26.

31. Government Code section 12940, subdivision (j).

32. Government Code section 12940, subdivision (j)(3).

33. The Commission by precedential decision, in Dept. of Fair Employment and Housing v. Hoag Memorial Hospital Presbyterian (1985) FEHC Dec. No. 85-10 [1985 WL 62889 (Cal.F.E.H.C.); 1984-85 CEB 14], has interpreted Government Code section 12926, subdivision (d), to exempt the sectarian activities of religious organizations from coverage under the FEHA. However, the Commission has interpreted this section not to exempt those activities engaged in by such organizations whenever the job at issue is purely secular in nature. Legislation effective January 1, 2001, redefined religious exemption to exclude religious associations or corporations not organized for private profit.

34. Legislation effective January 1, 2001, imposes personal liability on an employee who engages in unlawful harassment in employment under the FEHA. (Gov. Code, § 12940, subd. (j).)

35. Government Code section 12960.

36. Legislation effective January 1, 2000, increased the money damages from $50,000 to $150,000 per aggrieved person per respondent. (Gov. Code, § 12970, subd. (a)(3).)

37. Government Code section 12970, subdivision (d).

38. Legislation effective January 1, 2000, added expert witness fees which may be awarded to a prevailing party. However, no attorney's fees, costs or expert witness fees may be awarded to the prevailing party where the action is filed by a public entity or public official, acting in an official capacity. (Gov. Code, § 12965, subd. (b).)

39. California Constitution, Article I, section 31, added by California Civil Rights Initiative, Primary Election (Prop. 209) (Nov. 5, 1996).

40. Executive Order No. B-54-79 (1979). In addition, "[w]ithin 30 days after receipt of notice of termination of a career executive assignment, the affected employee may appeal to the State Personnel Board upon the grounds that the termination was effected for reasons of age, sex, sexual preference as prohibited by Governor's Executive Order B-54-79 (4/4/79), marital status, race, color, national origin, ancestry, disability as defined in Government Code section 19231(a)(1), religion, or religious opinions and affiliations, political affiliation, or political opinions. After hearing the appeal, the board may affirm the action of the appointing power, or restore the affected employee to the career executive assignment." (Cal. Code Regs., tit. 2, § 548.13.)

41. You should note that before you quit you are required to take reasonable steps to preserve your employment.

42. Runyon v. McCrary (1976) 427 U.S. 160.

43. Patterson v. McLean Credit Union (1989) 491 U.S. 164.

44. However, the United States Supreme Court has held that, under the 11^th Amendment of the U.S. Constitution, state employers are immune from ADEA suits by state employees in federal courts. (Kimel v. Florida Board of Regents (2000) 528 U.S. 62.) Thus, state employees alleging age discrimination in employment must file their claims under the FEHA.

45. It should be noted, however, that if the EEOC commences an action under this act, the private lawsuit must be terminated.

46. 29 U.S.C. § 255.

47. However, the United States Supreme Court has held that, under the 11^th Amendment of the U.S. Constitution, state employers are immune from ADA suits by state employees in federal courts. (Bd. of Trustees, U. of Ala. v. Garrett (2001) 531 U.S. 356.) Thus, state employees alleging disability discrimination in employment must file their claims under the FEHA.

48. School Board of Nassau County v. Airline (1987) 480 U.S. 273.

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