Treated Differently at Work in California? How to Tell If It's Illegal Discrimination

California's civil rights law, the Fair Employment and Housing Act, protects job applicants and employees from discrimination based on:

• Race and color, including traits like hair texture and protective hairstyles such as braids, locs, and twists
• Ancestry and national origin
• Religion and creed, including religious dress and grooming
• Age, if you are 40 or older
• Physical and mental disability, and medical conditions like cancer
• Sex and gender, including pregnancy, childbirth, and breastfeeding
• Sexual orientation, gender identity, and gender expression
• Genetic information, marital status, military or veteran status, and reproductive health decisionmaking

Perception and combinations count. The law also covers being treated worse because your employer thinks you have a protected trait, because of someone you are associated with, or because of two or more traits together, like age and sex.

What usually isn't illegal: a boss who is rude or unfair with everyone, or hiring and promoting based on more experience or training when the trait played no part. Most California jobs are "at will," which generally means either side can end the job. But being at will doesn't make an illegal reason legal.

Who is covered. These protections generally apply to employers with five or more employees, including public employers, but not religious nonprofits or the federal government. Harassment is prohibited in all workplaces, even those with fewer than five employees.

California's law covers every stage of a job, from the job ad to the last day. Here is how it often shows up:

• Hiring. A job ad asking for someone "young and energetic" or a "digital native." Questions about your age or graduation year, or about whether you have a disability before a job offer. (An employer generally may ask whether you can do the job's functions.)
• Pay. Being paid less than coworkers of another sex, race, or ethnicity for substantially similar work, or paid less for being 40 or older. Pay includes bonuses, overtime, stock, and benefits.
• Assignments and schedules. Being steered into worse shifts, territories, accounts, or duties because of who you are. The law covers the "terms, conditions, or privileges" of a job, not just hiring and firing.
• Discipline. Being written up, watched more closely, or held to stricter rules than coworkers outside your group.
• Training and promotion. Being skipped, or judged by a harder standard than other candidates. The Civil Rights Department's example: refusing to train an employee on new technology because of their age.
• Layoffs and firing. Being picked because of a protected trait, even when the company really does need to cut costs.
• Rules that look neutral. A policy that applies to everyone but hurts a protected group much more, like a bonus only for parents of children under five, which is likely to leave out older workers.

Pay has its own law. Under California's equal pay law, prior salary alone doesn't justify a pay gap.

The federal Equal Employment Opportunity Commission (EEOC), in its guidance on race discrimination, says statements by decision-makers, or by people who influence the decision, can be evidence of discrimination. That includes "code words" that sound neutral but carry a biased meaning in context. How much a comment matters depends on how serious it is and how closely it relates, in time and content, to the decision.

Comments usually carry more weight when they come from the person who made or influenced the decision, are made while talking about your job or pay, come close in time to the decision, and tie directly to the trait. They usually carry less weight on their own when they are a one-time joke by a coworker with no say, or were made long before. Even then, the EEOC says background, like an employer allowing jokes and slurs about a group, can help show why a decision was made.

What "code words" can sound like. The Civil Rights Department lists job ad wording like "young and energetic" and "digital natives" as examples of illegal age-based language. At work, comments like "we need fresh blood" may raise the same concern.

When comments become harassment. The Civil Rights Department's examples include repeatedly saying "Okay, Boomer" and joking that someone has worked there since the "dark ages." Comments like these may create a hostile work environment when they are severe or happen often enough to change the person's working conditions.

Language and accents. The Civil Rights Department says limiting or banning a language at work may be illegal unless business necessity justifies it and employees are told about the rule. Remarks mocking an accent may be evidence of national origin bias.

The federal EEOC's guidance explains the idea: being treated differently than similarly situated coworkers of a different race tends to show the stated reason wasn't the real one, while treating everyone the same tends to help the employer. The EEOC also says a comparison isn't always required, and the test for who counts shouldn't be unduly strict.

For discipline and firing, a comparison is usually most useful when the other person:

• Had the same supervisor or decision-maker
• Was held to the same rules and job expectations
• Did something similar, of "comparable seriousness" in the EEOC's words
• Did it around the same time
• Is outside your protected group
• Got a lighter outcome, or no discipline at all

For pay, California's equal pay law compares work that is "substantially similar" when you look at skill, effort, and responsibility together, under similar working conditions.

For promotions, the comparison is qualifications. The EEOC says small differences in qualifications, alone, usually don't show discrimination. But criteria that seem to be weighed differently each time so that you come out behind, shifting explanations, or a pattern of passing over people in your group are warning signs. The EEOC also says an employer straying from its own policy or past practice can support an inference of a discriminatory motive.

What usually makes a weak comparison: someone in a different job or under a different manager, conduct that was much less serious, or a general sense that "everyone does it." The EEOC also says that if the better-treated group includes people in your own group, that weakens a claim, though it doesn't end it.

First, does your condition count? In California, a physical or mental condition generally only has to limit a major life activity, and working counts. The law names examples like diabetes, epilepsy, heart disease, clinical depression, and bipolar disorder. Where the condition came from doesn't change the test: a back injury from work is judged the same way as one from home.

Step 1: Ask. No form, written request, or special words are required, and you can ask at any time. Explain what your condition makes hard, and how the change would help you do your job. Federal EEOC guidance says a family member or your doctor can ask for you, and that a doctor's note releasing you to work with restrictions counts as a request.

Step 2: Your employer responds. The Civil Rights Department says employers must respond promptly and start the "interactive process," a good faith conversation about what could work. The employer must also offer to start it when it learns another way that you may need help, like seeing you struggle, or your leave running out while you still need help.

Step 3: Paperwork, if needed. When your disability or need isn't obvious, your employer may ask for a note from a health care provider. The Civil Rights Department says employer forms should not ask for more than the law allows, like your medical records, your specific diagnosis, or what caused your disability. When the need is obvious, it generally should not ask for paperwork at all.

Step 4: Talk through options. Common accommodations include:

• A changed or part-time schedule, like a later start on migraine days, or time off for treatment
• Changing or restructuring some job tasks
• Moving your workspace, or working from home
• Equipment, or adjusting a policy, exam, or training materials
• Reassignment to a vacant job you can do

Your employer has to consider what you prefer, but when several options would work, it can generally choose the one that suits it best. The Civil Rights Department says employers should not require you to accept one that doesn't meet your need.

Step 5: A decision. The Civil Rights Department lists four situations where an employer may deny a request: you don't have a disability the law recognizes; the change would take away an essential function of the job; it would cause undue hardship (significant difficulty or expense for that business); or it would endanger health and safety. Even when a request would be an undue hardship, the employer must keep working with you to find something else.

Step 6: Follow-through. Accommodations should be put in place without delay when possible. If one isn't working, say so in writing. Treating you worse for asking may be illegal retaliation, even if the request was granted.

Warning signs: weeks with no answer; demands for your full medical file; a rule that you must be "100%" or on "full duty" to come back; being let go the day your leave runs out with no talk of other options; or being nudged to find another job.

Leave. Separately, eligible employees may have up to 12 weeks of job-protected leave for their own serious health condition under the California Family Rights Act.

The Civil Rights Department says age must not be a factor in deciding who is laid off, and that a need to downsize doesn't justify age discrimination. It also warns against using downsizing as an excuse to keep only lower-cost workers who may be younger.

Salary-based cuts. California law says using salary to decide who gets let go may be found to be age discrimination if it hurts older workers as a group.

What to look at in a layoff:

• The ages of the people let go, compared with the people kept
• The criteria used, and whether they were set before the choices were made
• Whether vague measures, like "flexibility" or "future potential," decided it
• Whether your duties went to a younger worker, or your job was posted again soon after
• Comments about "new energy," retirement, or cost

If you're offered severance. If your employer has 20 or more employees, federal age law also applies. The EEOC says an agreement asking you to give up federal age claims generally must give you at least 21 days to consider it (45 in a group layoff), 7 days to change your mind after signing, and written advice to consult an attorney. In a group layoff, the employer must also give you, in writing, the job titles and ages of the people chosen and the ages of those in the same group who were not. That list can show a pattern.

The federal EEOC says discrimination is often subtle and there's rarely a "smoking gun," so all the surrounding facts matter, and usually no single piece of evidence decides it. Proof usually comes from:

• Comments by decision-makers, and comparisons with coworkers outside your group
• Timing, like trouble that started soon after you disclosed a medical condition, asked for an accommodation, or announced a pregnancy
• Broken rules and patterns, like skipped policy steps, or who keeps getting hired, promoted, or let go
• Credibility, meaning whether the employer's reason holds up

In accommodation cases, the paper trail is often the whole story. For disability claims, the Civil Rights Department asks people to bring documents showing the request, documents showing a denial, and medical documentation supporting the request.

Gather it the right way.

• Keep what is yours or was sent to you, and don't delete anything. Don't take confidential company files or other employees' personnel or medical information; that can hurt your case.
• Ask for your records. Your employer generally must provide your personnel file within 30 days of a written request, your payroll records within 21 calendar days, and copies of anything you signed to get or keep your job. The personnel file right generally stops while a related lawsuit is pending, so ask early.
• Be careful with recordings. California law generally makes it a crime to record a confidential conversation without the consent of everyone in it, and a recording made that way generally can't be used as evidence.

Much of the proof is held by the employer, like other workers' pay and discipline. If a lawsuit is filed, each side can generally request relevant, non-privileged documents and the names of people who know about it. You don't have to prove everything today.

The federal EEOC says an employer's credibility is key. Its explanation can be called into question if it isn't supported by the facts, is unduly vague, looks like an after-the-fact explanation, or shifts over time. But a decision isn't discrimination just because it was unwise or a mistake. Here is how common explanations usually get tested:

• "It was performance." Compared against your reviews, numbers, and praise, and the date problems were first written down.
• "We picked the most qualified person." Real differences in experience and training are a lawful basis. Tested by the actual qualifications and whether the criteria changed.
• "The manager is the same race as you," or "is also over 40." That doesn't settle it. The EEOC says it shouldn't be presumed that a person won't discriminate against members of their own race, and that age discrimination can happen when both people are over 40.
• "You couldn't do the job." The question is whether you could do the essential duties, meaning the core duties rather than marginal ones, with a reasonable accommodation. Evidence includes job descriptions written before the job was posted, how much time the task really takes, and what others in the job actually do.
• "Accommodating you was too hard." The employer has to show undue hardship, measured against its own size and resources. The Civil Rights Department says the possibility of future harm, or higher insurance rates, is not a legally acceptable excuse for disability discrimination.

Watch for shifting stories. Note each version of the reason, and where it came from.

The Civil Rights Department lists these remedies for employment discrimination under California law:

• Back pay (past lost earnings) and front pay (future lost earnings)
• Hiring, reinstatement, or promotion
• Out-of-pocket expenses
• Reasonable accommodations
• Policy changes and training
• Damages for emotional distress
• Punitive damages, in some cases
• Attorney's fees and costs, in some cases

Equal pay claims have their own formula: the wages you were shorted, interest, and an additional equal amount as "liquidated damages."

What a case may be worth depends on how much pay you lost, how long it takes to find comparable work, how the treatment affected you, and how strong the evidence is. If you lost your job, keep records of your job search and new income.