What are the enforcement mechanisms and remedies available under Fair Employment and Housing Act (FEHA) for disability discrimination? 

Fair Employment and Housing Act (FEHA) provides a comprehensive enforcement scheme designed to eliminate disability discrimination through both administrative and judicial mechanisms, offering extensive remedies that serve both compensatory and deterrent functions. Government Code Section 12920.5 establishes that the enforcement scheme and remedies for disability discrimination are the same as those provided under Fair Employment and Housing Act generally to prevent and redress the adverse effects of unlawful employment practices.  

Administrative Enforcement Structure: The California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH), serves as the primary administrative enforcement agency for Fair Employment and Housing Act violations. The CRD has adopted procedural regulations governing how it accepts and processes complaints of unlawful discrimination, harassment, and retaliation under FEHA, with these regulations available on the CRD website.  

The administrative process provides an accessible first avenue for employees to seek redress without the expense and complexity of immediate litigation. This system allows for investigation, conciliation, and resolution of many cases without formal court proceedings, while preserving the right to judicial enforcement when administrative remedies prove inadequate. 

Work-Sharing Arrangements: The CRD and the Equal Employment Opportunity Commission (EEOC) maintain work-sharing arrangements for administrative charges, allowing coordination between state and federal enforcement efforts. However, when the EEOC is the investigating agency, it considers only federal law in processing charges, which may create strategic considerations for complainants given FEHA’s broader protections.  

This coordination can provide efficiency benefits while ensuring that employees receive the full protection of whichever law provides greater rights. However, employers should exercise caution in responding to EEOC investigations since arguments or admissions may be discoverable in later state court litigation where different legal standards apply. 

Right to Sue Requirements: Government Code Section 12965 requires that plaintiffs obtain a right-to-sue notice before filing civil actions for FEHA violations. This administrative exhaustion requirement ensures that the CRD has an opportunity to investigate and potentially resolve complaints before litigation begins, while also providing a screening mechanism for claims. 

The right-to-sue process serves multiple functions: it provides administrative agencies with opportunities to gather information and attempt conciliation; it gives employers notice of potential claims and opportunities to remedy violations; and it creates a record that may be useful in subsequent litigation. 

Civil Litigation Rights: After obtaining appropriate notice, employees may pursue civil litigation for FEHA violations including failure to provide reasonable accommodation. The availability of private civil litigation ensures that employees have meaningful enforcement options when administrative processes fail to provide adequate remedies. 

FEHA’s civil enforcement provisions allow for comprehensive relief that can address both individual harm and systemic violations. Courts have authority to fashion remedies that not only compensate individual victims but also require employers to implement policies and practices to prevent future violations. 

Burden of Proof Framework: FEHA disability discrimination cases apply the McDonnell Douglas/Burdine burden of proof framework from Title VII, requiring plaintiffs to establish prima facie cases before burdens shift to employers to articulate legitimate, non-discriminatory reasons for challenged actions. The prima facie burden is relatively light, with employees needing only to “offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.”  

In mixed-motive cases involving both discriminatory and non-discriminatory reasons, employees must prove that discrimination was a “substantial motivating factor” for adverse action. If successful, the burden shifts to employers to show they would have made the same decision absent discrimination. A successful “same-decision” defense limits remedies to declaratory and injunctive relief and attorney fees rather than providing complete defense to liability.  

Accommodation and Interactive Process Claims: For “failure to accommodate” claims, plaintiffs must prove they have FEHA-covered disabilities and that defendants failed to reasonably accommodate those disabilities. Some courts require plaintiffs to prove their ability to perform essential job functions with accommodation, while others treat inability to perform as an affirmative defense for employers.  

On summary judgment motions in accommodation cases, employers seeking judgment bear the greater burden of showing employees cannot perform essential functions of both former jobs and any available vacant positions for potential reassignment.  

Interactive Process Violations: Failure to engage in the timely, good faith interactive process constitutes a separate unlawful employment practice under Government Code Section 12940(n). Courts are split on whether this violation requires showing that reasonable accommodation was available, with some recognizing independent liability for process failures regardless of accommodation availability.  

This split creates uncertainty but also potential advantages for plaintiffs who can argue that the interactive process has intrinsic value in promoting mutual understanding and avoiding litigation, making process failures independently actionable.  

Harassment Claim Standards: Harassment claims require showing conduct sufficiently severe or pervasive to alter employment conditions and create hostile working environments. Employers face strict liability for supervisory harassment and knowledge-based liability for coworker harassment.  

Retaliation Protection: FEHA provides broad protection against retaliation for opposing discrimination, filing complaints, participating in proceedings, or requesting reasonable accommodations. This protection ensures that employees can exercise their rights under the Act without fear of employer reprisal. 

Remedial Scope: FEHA’s remedial framework is designed to be comprehensive, eliminating adverse effects of unlawful practices while deterring future violations. Available remedies can include compensatory damages, injunctive relief, reinstatement, promotion, policy changes, training requirements, monitoring, and attorney fees. 

Personal Liability Limitations: While employers face comprehensive liability, individual supervisors and coworkers generally cannot be held personally liable for discrimination under FEHA, except for harassment claims where personal liability is specifically authorized. This limitation focuses liability on entities with resources to provide meaningful remedies while preserving individual accountability for harassment. 

Arbitration Considerations: FEHA claims may be subject to arbitration under valid arbitration agreements, providing alternative dispute resolution mechanisms that can offer efficiency benefits while preserving substantive rights under the Act.  

The enforcement framework reflects FEHA’s comprehensive approach to disability rights, providing multiple avenues for relief while maintaining strong incentives for employer compliance and systemic change to prevent discrimination.