What employers are covered by California Fair Employment and Housing Act (FEHA) and who is protected under the Act? 

California Fair Employment and Housing Act (FEHA) covers any employer that regularly employs five (5) or more persons, along with employer agents and all state and local government entities. Gov. Code § 12926(d). This five-employee threshold provides California workers significantly broader protection than federal law, as the ADA requires 15 employees for coverage. 

The regularly employing standard is satisfied when an employer maintains five or more individuals on any day the alleged discrimination occurred, or employs five workers on a regular basis. Regular basis means recurring business operations, seasonal employers operating with five employees during their active periods are covered, even without year-round daily operations. 

The employee count includes anyone performing services under any appointment, contract, or apprenticeship arrangement, whether express or implied, oral or written. Gov. Code § 12926(d). These individuals need not be traditional employees, California residents, or full-time workers. This expansive definition prevents employers from circumventing coverage through creative employment arrangements. 

Agent and Entity Liability 

California Fair Employment and Housing Act (FEHA) defines employer to include agents acting on employers’ behalf. Business entities with at least five employees that conduct FEHA-regulated activities for other employers face direct liability as employers themselves. 

Franchisors generally avoid liability for franchisee employees unless they retain day-to-day supervision and management authority over those workers. 

Coverage Exclusions 

California Fair Employment and Housing Act (FEHA) exempts tax-exempt religious associations and nonprofit corporations, acknowledging religious organizations’ special constitutional status while preserving broad coverage elsewhere. 

Individual supervisors and coworkers cannot be sued directly under California Fair Employment and Housing Act (FEHA) for discrimination or retaliation. Reno v. Baird, 18 Cal. 4th 640, 645-646 (1998). However, supervisors face personal liability for harassment based on medical conditions when their discriminatory conduct supports harassment claims. 

Protected Individuals 

California Fair Employment and Housing Act (FEHA) protects any person from employment discrimination, defining employee as individuals under an employer’s direction and control through any appointment or contract arrangement, express or implied. 

Key Exclusions from Employee Status 

The Act excludes individuals employed by parents, children, spouses, or registered domestic partners, plus those working under special licenses in nonprofit sheltered workshops, though sheltered workshop employees retain rights to pursue harassment and discrimination claims, with employers maintaining an affirmative defense if challenged activities were statutorily permitted and necessary for serving disabled employees. 

Independent Contractors and Volunteers 

While California Fair Employment and Housing Act (FEHA) typically protects employees rather than independent contractors, it extends harassment protection to independent contractors as persons providing services pursuant to contract. This exception recognizes modern employment relationship complexities. 

Volunteers cannot pursue disability discrimination claims under California Fair Employment and Housing Act (FEHA) due to their non-employee status, creating potential protection gaps. 

Government Employer Coverage 

FEHA’s inclusion of the state or any of its political or civil subdivisions and cities ensures comprehensive government employer coverage at all levels, embodying the principle that government entities should exemplify equal employment opportunity practices. 

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California Fair Employment and Housing Act, California Fair Employment and Housing Act (FEHA), disability discrimination, FEHA