Cal. Gov. Code § 12940(a); CACI No. 2500
FEHA discrimination: California's employment claim, and the two clocks that govern it
A claim in California superior courts · Last verified August 26, 2026
California's Fair Employment and Housing Act is broader than its federal counterpart in almost every direction that matters, and employees plead it in preference to Title VII for concrete reasons: five employees instead of fifteen, no damages caps, and three years to file with the agency instead of 300 days.
What it also has is two independent clocks, and a plaintiff who is comfortably inside one can be barred by the other.
What the claim is
Your employer took an adverse action against you because of a protected characteristic.
FEHA's protected list is longer than the federal one, covering race, colour, religion, sex, gender, gender identity and expression, sexual orientation, national origin, ancestry, disability, medical condition, genetic information, marital status, age 40 and over, military and veteran status, and reproductive health decisionmaking.
Where the right comes from
Government Code § 12940(a), which makes it unlawful for an employer to discriminate against a person in compensation or in the terms, conditions, or privileges of employment because of a protected characteristic.
What a plaintiff has to prove — CACI No. 2500
- The defendant was an employer.
- The plaintiff was an employee or applicant.
- The plaintiff suffered an adverse employment action.
- The protected characteristic was a substantial motivating reason for the action.
- The plaintiff was harmed.
- The conduct was a substantial factor in causing the harm.
Element four is the California-specific standard and it was set in 2013. In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the Supreme Court held the plaintiff must show the protected characteristic was a "substantial motivating reason" — not merely "a motivating reason." The older jury instruction using the weaker formulation was invalidated.
Mixed motive is a partial defense, not a complete one. If the employer proves it would have made the same decision anyway, that does not end the case. It limits the plaintiff to declaratory and injunctive relief plus attorney's fees, and bars damages, backpay, and reinstatement. That middle position is distinctly Californian — the federal rule and the California rule reach the same question differently.
How long you have to file — two independent clocks
Clock one: the administrative complaint. File a verified complaint with the Civil Rights Department within three years of the unlawful act.
Clock two: the lawsuit. File suit within one year of the CRD's right-to-sue notice.
They are independent, and that is the trap. A timely CRD filing does not save a late court filing. An employee who files with the agency in month 30, receives a right-to-sue letter, and then waits fourteen months to sue has lost — despite having been well inside the three-year administrative window.
Most plaintiffs' counsel request an immediate right-to-sue notice at intake precisely to start the one-year clock on their own schedule rather than the agency's.
The continuing violation doctrine can preserve older acts that would otherwise fall outside the administrative window, where the conduct was sufficiently connected and had not become permanent.
What has to happen before you file
Administrative exhaustion. File the CRD complaint and obtain a right-to-sue letter. You cannot go straight to court.
Character: contested, and worth stating plainly. Older California decisions describe timely exhaustion as jurisdictional. More recent authority treats it as a matter the plaintiff must plead and prove — closer to a mandatory claim-processing requirement. The tension has not been cleanly resolved, and the practical advice is the same either way: exhaust, and plead that you did.
Note one thing that does not apply. The Government Claims Act six-month presentation requirement does not govern a FEHA damages claim against a public employer. FEHA has its own exhaustion scheme, and it displaces the general claims statute. That is a genuine trap in the other direction — a plaintiff who assumes the six-month rule applies may forfeit a claim they still had.
And reporting to HR is not exhaustion. Internal complaints do not satisfy the requirement, however thoroughly documented.
Who can be sued — and who cannot
Employers with five or more employees. Not fifteen. That threshold reaches an enormous number of small California businesses that Title VII never touches, and it is the single most useful difference between the two statutes.
Not individual supervisors — for discrimination. In Reno v. Baird (1998) 18 Cal.4th 640, the Supreme Court held supervisors making personnel decisions cannot be held personally liable for discrimination.
But individuals can be personally liable for harassment, under a separate FEHA subdivision that applies to employers of one or more. That asymmetry is precise and often misstated: same statute, different subdivision, opposite answer on individual liability.
Public employers are covered, with punitive damages unavailable against them.
Common defenses
A legitimate, non-discriminatory reason for the decision, tested through burden-shifting adapted to California in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317.
The same-decision showing — a partial defense under Harris, limiting rather than defeating recovery.
Failure to exhaust, and the limitations periods.
Business necessity and bona fide occupational qualification.
Anti-SLAPP rarely applies. Employment decisions are not protected activity, though communications made during a workplace investigation occasionally raise the question.
What the claim pays
Backpay and front pay. Emotional distress damages, with no statutory cap — the most important difference from Title VII, which caps compensatory and punitive damages together between $50,000 and $300,000 by employer size.
Punitive damages against private employers under Civil Code § 3294, on clear and convincing proof of oppression, fraud, or malice. Not available against public entities.
A one-way attorney's fee award to a prevailing plaintiff. A prevailing defendant recovers fees only if the action was frivolous, unreasonable, or groundless — the standard the California Supreme Court confirmed in Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97.
Jury trial: yes.
What people get wrong
"My employer is too small." FEHA reaches five employees. Title VII's fifteen-employee threshold is not the California rule.
"I complained to HR, so I exhausted." You did not. Exhaustion means a CRD complaint and a right-to-sue letter.
"I filed with the agency in time, so I'm fine." Not necessarily. The one-year suit deadline runs separately from the three-year filing deadline.
"I'll sue my supervisor for discriminating against me." You cannot under FEHA. You can sue them personally for harassment.
"Damages are capped like the federal claim." They are not.
"They'd have fired me anyway, so I lose." Not entirely. A same-decision showing limits your remedies rather than defeating the claim.
"I have to present a government claim first because my employer is a school district." For a FEHA damages claim, no — FEHA's own scheme governs.
Where it came from
FEHA traces to California's fair employment legislation of 1959, predating the federal Civil Rights Act by five years, and it has been expanded steadily since — in coverage, in protected characteristics, and in remedies.
Two changes define the modern claim. Harris (2013) set the substantial-motivating-reason standard and reshaped mixed-motive analysis into a remedies limitation rather than a defense.
And in 2020 the Legislature tripled the administrative filing window from one year to three — an expansion of employee rights that dramatically changed the timing of these cases, and one reason material written before 2020 should be checked against its date.
The live question is the scope of liability for business-entity agents of an employer, which the Supreme Court addressed in 2023 without resolving its full extent.
Common questions
How small can my employer be before FEHA stops applying?
Five employees. That is far lower than the federal threshold of fifteen, and it is the main reason California employees plead FEHA rather than Title VII.
How long do I have to file a FEHA claim?
Two deadlines. Three years to file a complaint with the Civil Rights Department, then one year from the right-to-sue notice to file suit. They run independently — being timely on one does not save you on the other.
Can I sue my supervisor personally?
Not for discrimination — Reno v. Baird forecloses it. You can sue a supervisor personally for harassment, which is a different FEHA subdivision and applies to employers of one or more.
Are FEHA damages capped?
No. Unlike Title VII, FEHA has no statutory cap on compensatory or punitive damages, though punitive damages are unavailable against public entities.
Is complaining to HR enough before I sue?
No. You must file with the Civil Rights Department and obtain a right-to-sue letter. Internal complaints do not satisfy exhaustion.