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Is discrimination illegal based on any immutable characteristic?

No. It is not true that employers cannot discriminate against people because of any immutable characteristic. In California, the Fair Employment and Housing Act (FEHA) lays out a limited number of characteristics that are protected by the law. Federal laws also apply, and they work the same basic way.

The FEHA protects people from job discrimination based on any of these characteristics:

  • Race
  • Color
  • Ancestry/national origin
  • Religion or creed
  • Age (40 and over)
  • Disability, whether mental or physical
  • Sex/gender (including pregnancy, childbirth, breastfeeding and related conditions)
  • Sexual orientation
  • Gender identity or expression
  • Medical condition
  • Genetic information
  • Marital status
  • Military or veteran status

In addition to the FEHA’s protections, there are a host of federal anti-discrimination laws that protect people from discrimination based on certain characteristics, including:

  • Race
  • Color
  • National origin
  • Religion/lack of religion
  • Sex/gender (including sexual orientation, gender identity and gender expression)
  • Pregnancy, childbirth, breastfeeding and related conditions
  • Age (40 and over)
  • Disability, whether mental or physical or perceived
  • Genetic information

When considering whether the FEHA or federal law protects you, you should ask yourself if the negative job action you have experienced was based on one of these characteristics. The analysis can be broader than a simple yes or no.

For example, the U.S. Supreme Court has ruled that discrimination based on sexual orientation, gender identity or gender expression counts as discrimination based on gender. Similarly, the high court found that the prohibition on religious discrimination applies to people who profess no religion.

Both the FEHA and most of the federal anti-discrimination laws have been read to prohibit harassment based on a protected characteristic, along with retaliation for making a discrimination complaint.

California and federal law have different rules for which employers are prohibited from discrimination. For example, in California, the FEHA generally applies to all employers with 5 or more employees. The corresponding federal laws typically apply to employers with 15 or more employees. However, both apply to public and private employers, including labor unions and employment agencies.

If you believe you have suffered discrimination at work, talk to a lawyer before taking any concrete steps. Your lawyer can help you identify if you have a claim, collect appropriate evidence and make any required internal complaints.

Leigh Law Group represents employees in FEHA and federal discrimination claims.