Fair Employment and Housing Act (FEHA) provides significantly broader protections than the ADA in numerous critical areas, reflecting California’s leadership in disability rights and its commitment to exceeding federal minimum standards. Government Code Section 12926.1(a) explicitly declares that “the law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act” and that “although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.”
Employer Size Coverage: One of the most significant differences lies in employer coverage thresholds. The ADA applies only to employers with 15 or more employees, whereas Fair Employment and Housing Act applies to employers with five or more employees. This difference means that significantly more California workers enjoy protection from employment discrimination, as Fair Employment and Housing Act covers approximately three times as many employers as the ADA.
Definition of Disability – “Substantial” vs. “Limiting”: A crucial distinction involves the standard for measuring disability. The ADA requires that impairments “substantially limit” a major life activity, while FEHA requires only that the disability “limit” such activity. This distinction is intended to result in broader coverage under California law than under federal law.
This difference has practical significance for individuals with conditions that impact their lives but may not rise to the “substantial” limitation threshold. For example, individuals with short-term or temporary conditions may qualify for protection under FEHA though the same condition might not qualify under the ADA. However, “mild” conditions that have little or no residual effects and do not limit a major life activity are still excluded under FEHA.
Mitigating Measures Consideration: Under pre-2009 ADA law, mitigating or corrective measures were relevant in determining whether a condition was disabling. FEHA explicitly provides that whether a condition limits a major life activity is determined “without respect to any mitigating measures” unless the measure itself limits a major life activity. The Legislature specifically stated this rule applies “regardless of federal law under the Americans with Disabilities Act.”
Working as Major Life Activity: FEHA declares that “working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.” Under pre-2009 ADA law, an employee who couldn’t perform specific job requirements but could work in different positions was not substantially limited in working. FEHA’s approach means that exclusion from a single job with a single employer constitutes a limitation on “working,” making the California law much broader.
Reasonable Accommodation Scope: FEHA imposes a broader duty of accommodation than the ADA. Notably, FEHA creates an affirmative duty for employers to provide reasonable accommodations even when employees haven’t specifically requested accommodation, if the employer is aware of the disability. This proactive approach contrasts with the ADA’s generally reactive framework.
Additionally, FEHA requires employers to reasonably accommodate applicants or employees whom they regard as disabled, even if the person is not actually disabled. The ADAAA now provides that employers need not provide reasonable accommodations to persons who are only “regarded as” disabled, creating another area where FEHA provides broader protection.
Leave as Accommodation: While both laws recognize leave as a potential reasonable accommodation, FEHA provides no statutory limit on leave duration, stating that “a disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship on the employer.” This unlimited approach to leave accommodations represents a significant expansion beyond federal requirements.
Interactive Process: While both laws require interactive processes, FEHA makes failure to engage in the interactive process a separate cause of action under Government Code Section 12940(n). Some California courts hold that FEHA allows an independent cause of action for failing to engage in the interactive process regardless of whether reasonable accommodation was possible, potentially providing broader protection than the ADA.
Causation Standards: Recent federal law changes have created differences in causation standards. ADA discrimination claims now require “but for” causation, meaning employees must show the employment action would not have occurred but for the disability. FEHA disability discrimination cases continue to apply the “substantial motivating factor” standard from Title VII, which can be easier for plaintiffs to prove in mixed-motive cases.
Religious Employer Coverage: FEHA generally does not cover most religious employers, while the ADA does cover them but grants certain protections. This represents one area where the ADA potentially provides broader coverage than FEHA.
Perceived Impairment Coverage: The ADAAA prohibits discrimination based on perceived impairment regardless of whether it has or is perceived to have any disabling effect. FEHA’s comparable provision appears narrower, covering only perceived impairments that are “disabling, potentially disabling, or perceived as disabling or potentially disabling.” However, this broader federal definition may be incorporated by Government Code Section 12926.1(a), which makes the ADA the “floor of protection” for disability claims.
Specific Protected Conditions: FEHA specifically lists certain conditions as protected disabilities, including HIV/AIDS, hepatitis, epilepsy, diabetes, multiple sclerosis, and heart disease. While these conditions may be disabilities under the ADA, each ADA claim must be evaluated case-by-case, whereas FEHA’s explicit inclusion provides clearer protection.
Practical Implications: These differences mean that California employees often have stronger disability discrimination protections than their counterparts in other states. Practitioners should consider arguing that favorable federal decisions should be adopted under FEHA while avoiding adverse federal precedents where California law provides broader protection.