Fair Employment and Housing Act‘s coverage extends to a broad range of employers while protecting a comprehensive class of individuals, reflecting California’s commitment to ensuring widespread protection against disability discrimination. The Act’s coverage provisions are designed to reach more employers than federal disability laws while providing protection to diverse categories of workers and applicants.
Employer Coverage Under Government Code Section 12926(d): Fair Employment and Housing Act (FEHA) applies to any person regularly employing five (5) or more persons, any person acting as an agent of an employer, directly or indirectly, and the state or any of its political or civil subdivisions and cities. This five-employee threshold is significantly lower than the Americans with Disabilities Act, which applies only to employers with 15 or more employees, resulting in broader coverage for California workers.
The term person includes one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries. This comprehensive definition ensures that virtually all forms of business entities can be subject to FEHA obligations.
Regularly Employing Standard: The phrase regularly employing means employing five or more individuals for any part of the day on which the unlawful conduct allegedly occurred, or five or more employees on a regular basis. Regular basis refers to the nature of the business that is recurring rather than constant, meaning an employer that has at least five employees on its payroll during its operating season is covered even if it doesn’t operate every day throughout the year.
The count of five or more includes individuals performing service under any appointment, contract of hire or apprenticeship, whether express or implied, oral or written. These individuals need not be traditional employees, be located in California, or be full-time employees. This broad counting mechanism ensures that employers cannot avoid coverage through creative employment arrangements.
Agent Liability: The term employer includes any person or individual acting as agent of an employer, directly or indirectly. A business entity acting as an employer’s agent may be held directly liable as an employer for employment discrimination when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.
However, franchisors are generally not considered employers of franchisee employees and are not liable under FEHA unless the franchisor retains or assumes general control over the day-to-day supervision and management of the franchisee’s employees.
Exceptions to Coverage: FEHA excludes certain employers from coverage. Employer does not include tax exempt divisions of religious associations or nonprofit corporations. This religious exemption recognizes the special status of religious organizations while still maintaining broad coverage for most employment relationships.
Personal Liability Limitations: Significantly, aggrieved individuals have no FEHA claim against individual supervisors or coworkers who discriminate against them. Supervisors are not personally liable for retaliation under FEHA either. However, supervisors can be held personally liable for harassment based on medical conditions when their discriminatory conduct also supports harassment claims.
Protected Persons: FEHA protects any person from discriminatory employment practices, with employee defined as any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.
The Act expressly excludes individuals employed by their parents, child, spouse, or registered domestic partner, and those under a special license in a nonprofit sheltered workshop or rehabilitation facility except as specifically provided. However, individuals employed under special licenses in nonprofit sheltered workshops may bring FEHA actions for harassment or discrimination, with employers having an affirmative defense if they can prove the challenged activity was permitted by statute and necessary to serve employees with disabilities.
Independent Contractors: Generally, FEHA prohibits discrimination against employees, not independent contractors. Independent contractors are defined as persons who render service for specified recompense for a specified result and who are under the principal’s control only as to the result of the work, not the means by which the result is accomplished.
However, FEHA protects independent contractors from harassment as persons providing services pursuant to contract, creating an important exception that recognizes the reality of modern employment relationships.
Volunteers: Because they are not employees, volunteers cannot maintain a cause of action for disability discrimination under FEHA. This limitation reflects the traditional employment-based scope of anti-discrimination laws, though it may leave gaps in protection for some individuals contributing services to organizations.
State and Local Government: FEHA’s inclusion of the state or any of its political or civil subdivisions and cities ensures that government employers at all levels are subject to the Act’s requirements. This comprehensive coverage reflects the principle that government employers should be model employers in providing equal employment opportunities.