California’s Fair Employment and Housing Act (FEHA) offers plaintiffs many advantages over its federal counterpart, Title VII of the Civil Rights Act of 1964. These advantages are particularly significant in the area of harassment.
To begin with, Title VII does not expressly prohibit harassment; rather, it forbids discrimination on the basis of an individual’s race, color, religion, sex, or national origin. Caselaw has made it clear, however, that harassment can be actionable as discrimination under Title VII. In contrast, FEHA explicitly proscribes harassment, and expands the protected characteristics to include sexual orientation, gender identity, gender expression, and military or veteran status.
Other features of FEHA make it much more broadly applicable than Title VII. For example, FEHA’s harassment provisions protect not just employees, but independent contractors and unpaid interns and volunteers as well. Further, FEHA’s harassment sections apply to all employers, whereas only those with five or more employees are subject to FEHA’s general anti-discrimination provisions, and only those with fifteen or more employees are subject to Title VII’s rules. Also, FEHA’s anti-harassment laws cover entities such as non-profit hospitals and health care facilities affiliated with religious entities that are ordinarily exempt from many anti-discrimination laws.
The expansive reach of FEHA’s anti-harassment provisions empowers California plaintiffs who have suffered from harassment to seek redress for their injuries despite the fact that roads to recovery for similar conduct such as ordinary discrimination may be closed to them. For this reason, it is important that FEHA plaintiffs always allege a cause of action for harassment if their cases include any facts that may support such a claim.
Source: Cal. Prac. Guide Employment Litigation Ch. 10-A (Rutter Grp. 2014).