Suing Your Employer for Unfair Treatment in California: What Turns Unfair Into Unlawful

Unfair treatment on its own is not what California's Fair Employment and Housing Act (FEHA) makes unlawful. Under that law, treatment becomes an unlawful employment practice when the employer acts because of a characteristic the statute lists, including race, religious creed, physical or mental disability, sex, or age. Age carries its own definition here: Government Code § 12926(b) says age refers to the chronological age of any individual who has reached a 40th birthday. FEHA also uses two employee thresholds, not one: five or more for discrimination, and one or more for harassment.

At a glance

• California treats working free of discrimination as a civil right. Government Code § 12921(a) declares the opportunity to seek, obtain, and hold employment without discrimination because of the characteristics it lists to be a civil right.
• The words "because of" are the line. Government Code § 12940(a) makes it an unlawful employment practice for an employer to discriminate because of one of eighteen listed characteristics. An unlawful employment practice is simply the statute's own name for conduct it forbids.
• On that list, "age" means 40 and over. Government Code § 12926 defines the words used in this part of the code in connection with unlawful practices, and § 12926(b) says age "refers to the chronological age of any individual who has reached a 40th birthday." A younger worker treated badly because of their age sits outside that definition, which is not the same as sitting outside California employment law.
• For a discrimination claim, "employer" means five or more. Government Code § 12926(d) defines "employer" for § 12940's provisions other than the harassment subdivision, the discrimination provision among them, as any person regularly employing five or more persons, along with agents of an employer, the state, its political and civil subdivisions, and cities. The same statutory sentence adds that "employer" does not include a religious association or corporation not organized for private profit.
• For a harassment claim, "employer" means one or more. Government Code § 12940(j)(4)(A) defines "employer" for the harassment subdivision only as any person regularly employing one or more persons, and states that § 12926(d)'s definition applies to every other provision of § 12940.
• The conduct covered is broader than being fired. § 12940(a) reaches refusing to hire or employ someone, barring or discharging them, and discriminating against them in compensation or in terms, conditions, or privileges of employment.
• Complaining is protected on its own. § 12940(h) makes it an unlawful employment practice to discharge, expel, or otherwise discriminate against a person because that person opposed practices forbidden under this part of the law, or filed a complaint, testified, or assisted in a proceeding under it.
• A single incident can be enough to create a triable issue. § 12923(b) says one incident of harassing conduct suffices to create a triable issue about a hostile work environment where the conduct unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.
• These sections are FEHA's, and they describe what FEHA forbids. Conduct that falls outside them sits outside FEHA, and FEHA is one California employment statute among several.

What turns unfair treatment into unlawful treatment in California?

The reason behind it.

Start with the sentence the Legislature wrote first. Government Code § 12921(a):

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The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status is hereby recognized as and declared to be a civil right.

Read the two words in the middle. Not "the opportunity to be treated fairly." The opportunity to work without discrimination because of something on that list. The characteristics on it are what people mean by a protected characteristic: a trait the statute names and attaches consequences to.

The operative prohibition is built the same way. Government Code § 12940(a) makes it an unlawful employment practice:

“

For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

That sentence has three moving parts, and unfair treatment fails on the second one. It starts with who: an employer, and that word does not carry one meaning across this statute. Then why, and this is where the sentence does its work. The employer has to have acted because of one of those eighteen characteristics. Rudeness, favoritism, a review you did not deserve, the bad shift, the promotion that went to someone weaker: none of it is inside this subdivision unless the reason is on the list. Then what, and the list of acts is longer than people expect. Refusing to hire or employ. Refusing to select someone for a training program leading to employment. Barring or discharging them. Discriminating in compensation, or in terms, conditions, or privileges of employment.

The same eighteen characteristics appear in § 12921(a) and in § 12940(a). It is a single list carried across both sections.

The statute concedes the point in its own voice. Section 12940(a)(5)(A) says that promotions within existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, and hiring under an established recruiting program from high schools, colleges, universities, or trade schools "do not, in and of themselves, constitute unlawful employment practices." The Legislature wrote down that ordinary employment decisions are not automatically unlawful.

And there is an exception sitting above every subdivision. Section 12940 opens by making the conduct that follows an unlawful employment practice "unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California", and the section does not define that first phrase or say who has to establish it. So nothing in the subdivisions below it reads as an absolute prohibition.

None of that means a reason outside the list leaves you with nothing. It means the conduct is outside these sections. What FEHA forbids and what the rest of California employment law forbids are different questions, and the second one needs a lawyer looking at your actual facts.

For the type-by-type view of what discrimination looks like in practice, our guide to the eight types of workplace discrimination California employees bring most often, and how they combine takes them one at a time.

Does my employer's size decide whether I have a claim?

It decides which parts of the statute reach your workplace, and the answer is two numbers rather than one.

For § 12940's provisions other than the harassment subdivision, Government Code § 12926(d) supplies the definition:

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"Employer" includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows: "Employer" does not include a religious association or corporation not organized for private profit.

Five or more employees is the count for the discrimination provisions. An agent of an employer, direct or indirect, is inside the definition. So are the state, its political and civil subdivisions, and cities, which is to say public employers are covered.

Harassment then gets its own definition of "employer," and the statute does not leave the relationship between the two to guesswork. Government Code § 12940(j)(4)(A):

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For purposes of this subdivision only, "employer" means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of "employer" in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.

That second sentence is the proof, in the Legislature's own words. Section 12926(d)'s five-or-more definition governs every provision of § 12940 except subdivision (j), and subdivision (j) is harassment. Which means:

• A discrimination claim under § 12940(a) runs against an employer regularly employing five or more persons.
• A harassment claim under § 12940(j) runs against an employer regularly employing one or more persons.
• For a retaliation claim under § 12940(h), the word "employer" carries the five-or-more definition, because § 12940(h) is one of the other provisions the cross-reference covers. That subdivision also names a labor organization, an employment agency, and a person, and these sections do not define "person."

So a workplace of four people sits below the count the discrimination provisions use and inside the count the harassment subdivision uses.

More sits on the face of these definitions. The harassment definition also covers a person "regularly receiving the services of one or more persons providing services pursuant to a contract," and § 12940(j)(5) sets out the criteria for who that means. And both definitions carry a religious exclusion: § 12926(d) says "employer" does not include a religious association or corporation not organized for private profit, and § 12940(j)(4)(B) applies the same exclusion to the harassment subdivision, "except as provided in Section 12926.2."

One thing these sections do not do is tell you how to count. Section 12926(d) says "regularly employing" and stops there. Whether part-time workers count, over what period "regularly" gets measured, and how contractors figure into the number are not answered in the text of that definition. The number is on the face of the section. The method for arriving at it is not.

What kinds of treatment does the statute actually cover?

More than hiring and firing, and it covers more people than current employees.

The acts listed in § 12940(a) end with a clause that does most of the work in real cases: discriminating against a person "in compensation or in terms, conditions, or privileges of employment." Pay. Shifts. Assignments. Discipline. The conditions you work under. Those words are the statute's, and they sit alongside the refusal-to-hire and discharge language rather than beneath it.

The people covered reach past the payroll, too. Applicants are in: Section 12940(a) prohibits refusing to hire or employ a person because of a listed characteristic, so the hiring decision itself is inside the subdivision. Training programs and unpaid internships have their own subdivision. Section 12940(c) makes it unlawful for any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in an apprenticeship training program, another training program leading to employment, an unpaid internship, or another limited duration program providing unpaid work experience, because of the same listed characteristics. And the harassment subdivision draws its own circle of people. Section 12940(j)(1) names an employee, an applicant, an unpaid intern or volunteer, and a person providing services pursuant to a contract as the people who can be harassed unlawfully.

A person who was never formally hired often assumes the statute has nothing to say about them. On the face of these subdivisions, it does.

Is it retaliation if I get punished for complaining?

Retaliation is its own unlawful employment practice, with its own subdivision. Government Code § 12940(h):

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For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

Read the sentence in pieces.

"[O]pposed any practices forbidden under this part". That phrase covers this part of the Government Code as a whole, which is wider than § 12940 on its own. The subdivision does not say a formal complaint has to have been filed first for opposition to count.

"[F]iled a complaint, testified, or assisted in any proceeding under this part". Assisted. The subdivision describes the person who backed up a coworker's account as well as the person who brought the complaint, and it ties both to a proceeding under this part.

"[D]ischarge, expel, or otherwise discriminate against". Otherwise discriminate against is broad on its words and is not limited to termination.

There is a limit worth stating plainly. Subdivision (h) protects opposition to practices forbidden under this part. It does not address what happens to someone punished for complaining about something FEHA does not forbid, such as unpaid wages or a safety problem. Other parts of California employment law sit outside these sections, and whether one of them reaches your situation is a conversation to have with a lawyer.

Asking for an accommodation is protected separately. Section 12940(l)(4), for religious belief or observance, and § 12940(m)(2), for a known physical or mental disability, use identical words. Each makes it an unlawful employment practice:

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For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.

The words "in addition to" put this protection on top of the retaliation subdivision rather than folding it in. And "regardless of whether the request was granted", so a refused request does not take the protection away.

What if the harassment came from a coworker or a customer?

The employer can be responsible for both, on a test the statute spells out. Government Code § 12940(j)(1) covers harassment by an employer, a labor organization, an employment agency, an apprenticeship or other training program leading to employment, or any other person, because of the same eighteen characteristics, directed at an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. It then sets out how the conduct of people other than the employer reaches the employer.

Start with a coworker. Harassment by an employee "other than an agent or supervisor" is unlawful "if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." Two elements joined by an "and": the entity knew or should have known, and it failed to act. Read the first quoted phrase closely, because it limits who that two-part test is written for. Harassment by a supervisor is not outside subdivision (j): the first sentence of § 12940(j)(1) already makes it an unlawful employment practice for an employer or any other person to harass an employee because of a listed characteristic. What the knows-or-should-have-known condition does is attach an extra requirement to conduct by an employee who is not an agent or supervisor, a requirement a person harassed by their own boss does not carry. What these sections do not set out is how a supervisor's conduct is treated as the employer's. So if the person harassing you is your boss, do not measure your situation against the coworker rule. Put it to a lawyer instead.

Now the customer. An employer "may also be responsible for the acts of nonemployees," meaning a customer, a client, or a vendor, "with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace," on the same knows-or-should-have-known-and-failed-to-act test. The subdivision adds that in reviewing those cases, "the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered."

Harassment carries the same "because of" hinge as discrimination. A boss who is unpleasant to everyone is not what subdivision (j) describes. Harassment because of a listed characteristic is.

Two duties to prevent, and they are not the same duty. Section 12940(k) makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Subdivision (k) is its own subdivision, so the five-or-more definition of employer governs it.

Separately, inside the harassment subdivision, § 12940(j)(1) says: "An entity shall take all reasonable steps to prevent harassment from occurring." Because that sentence sits inside subdivision (j), it runs with subdivision (j)'s one-or-more definition, and it is a duty about harassment.

So "I reported it and nothing happened" is not a dead end in this statute. It points at a specific subdivision. What neither subdivision states is a consequence. Both describe the duty and stop, without saying what a failure to prevent is worth to an employee.

The individual can be on the hook too. Section 12940(j)(3): "An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action." Note the words "regardless of whether". The employer's knowledge and the employer's response do not gate that personal liability. That provision speaks to harassment. It does not address discrimination or retaliation.

Ready to talk it through?

If you have spent weeks trying to decide whether what happened to you counts, that is worth one conversation rather than another month of searching. We represent employees only, the first consultation is free, and we will tell you plainly what we make of the facts you have. Book a free employment law consultation.

How do you prove unfair treatment at work?

The Legislature has said something useful about how the picture gets assessed, and it is narrower than it first sounds. Government Code § 12923(c):

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The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.

Keep every qualifier in that sentence: may, relevant, circumstantial. The Legislature did not say an offhand comment proves anything or wins anything. It said such a remark may be relevant circumstantial evidence even where it was not made in the context of an employment decision and even where the speaker was not the person who made the decision. A hostile work environment is the statute's own term rather than a loose description of a bad atmosphere, and § 12923(a) sets out what the Legislature means by it.

The Legislature said more about how a situation gets read.

A single incident can create a triable issue. Section 12923(b): "A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment." A triable issue is a question that can go forward to be decided. It is not the same as winning, and the condition attached to that sentence is part of the rule.

You do not have to show you lost a tangible job benefit. Section 12940(j)(1) closes with one short sentence that answers a worry people carry for months: "Loss of tangible job benefits shall not be necessary in order to establish harassment." That sentence is about job benefits the employer confers, and it says the loss of one is not a necessary part of establishing harassment.

"That is just how this industry talks" is not a legal standard. Section 12923(d): "The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past." The subdivision adds that courts should consider the nature of the workplace only where engaging in or witnessing prurient conduct and commentary is integral to performing the job duties.

Section 12923(a) is where the Legislature set the bar the conduct has to clear, and the word doing the work in it is "when." The Legislature declared that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct "sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim's emotional tranquility in the workplace, affect the victim's ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being." The vocabulary is closer to how people actually describe their own week than anything in § 12940, and that is why it is easy to misread. It is a condition the conduct has to meet, not a description of how a week felt.

If the harm you are carrying is what you want to ask about, that is a different claim with its own rules, and our guide to when you can sue an employer for emotional distress in California, and why workers' compensation blocks most of those claims covers it.

Will suing my employer follow me to my next job?

This is the question that keeps people from calling anyone, and the statute answers part of it and only part.

What it answers: § 12940(h) makes it an unlawful employment practice for any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person opposed practices forbidden under this part, or filed a complaint, testified, or assisted in any proceeding under this part. That reaches the employer whose conduct you complained about, and it reaches a person who assisted rather than complained.

What it does not answer: nothing in that subdivision speaks to a future employer, to references, or to what happens in the job market. That silence is not an answer either way. It marks the edge of what these sections say, and the job market sits outside that edge.

How long do I have to file?

Less time than the situation feels like it allows, and the honest answer is that it depends on which claim is brought and on your own dates.

Sections 12921, 12923, 12926 and 12940 say what is unlawful. None of them states a filing period, and no article should hand you a date to rely on. There is also a step before court for a FEHA claim, with its own clock, and our guide to how to sue your employer in California, including whether you have to go through an agency first and what a right-to-sue notice is walks through it. The deadlines themselves, claim by claim, are set out in how long you have to file a wrongful termination claim in California.

Do not calendar a date from an article, this one included. Deadlines can run early, so confirm yours with us before you rely on anything.

Frequently asked questions

What are two examples of unfair treatment in the workplace?

Take two situations that feel identical to the person living through them. A worker who has reached a 40th birthday is not selected for a training program leading to employment because of their age: that is described in Government Code § 12940(a), which prohibits refusing to select a person for such a program because of age, and Government Code § 12926(b) defines age for this part of the code as the chronological age of any individual who has reached a 40th birthday. A worker is passed over because the manager prefers a friend: the discrimination subdivision turns on the reason, and personal favoritism is not one of the characteristics it lists. Same feeling, different position under this statute, because the prohibition turns on the reason rather than on how unfair it felt. Being outside this statute is not the same as being outside California employment law, which contains more statutes than this one.

Does my employer's size matter for a discrimination or harassment claim?

It matters, and California uses two numbers. Government Code § 12926(d) defines "employer" as any person regularly employing five or more persons, and that definition governs the discrimination provisions of § 12940. Government Code § 12940(j)(4)(A) defines "employer" for the harassment subdivision only as any person regularly employing one or more persons, and states that § 12926(d)'s definition applies to all provisions of § 12940 other than that subdivision. So a four-person workplace is outside the discrimination definition and inside the harassment one.

Can a single incident be enough for a harassment claim in California?

Government Code § 12923(b) says a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment, if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment. A triable issue means a question that can go forward to be decided rather than a result, and the condition attached to the sentence is part of what the statute says.

How do you prove unfair treatment at work in California?

Government Code § 12923(c) says the existence of a hostile work environment depends upon the totality of the circumstances, and that a discriminatory remark may be relevant circumstantial evidence of discrimination even if it was not made in the context of an employment decision or was uttered by someone who was not the decisionmaker. The qualifiers are the statute's own: may be, relevant, circumstantial. Nothing in that subdivision says such a remark proves discrimination.

Is it hard to get a job after suing an employer?

Government Code § 12940(h) makes it an unlawful employment practice for any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person opposed practices forbidden under this part, or filed a complaint, testified, or assisted in any proceeding under it. That subdivision addresses the employer complained about. It says nothing about future employers, references, or the job market.

Does sexual harassment have to be motivated by attraction?

No. Government Code § 12940(j)(4)(C) says that for purposes of the harassment subdivision, "harassment" because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions, and then states plainly that sexually harassing conduct need not be motivated by sexual desire. That single sentence corrects a belief that stops a lot of people from recognizing their own situation as something the statute describes.

Can the person who harassed me be held personally responsible?

Government Code § 12940(j)(3) provides that an employee of an entity subject to the harassment subdivision is personally liable for any harassment prohibited by that section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. The subdivision speaks to harassment, and it does not address discrimination or retaliation.

I was an applicant, not an employee. Does the law cover me?

Government Code § 12940(a) prohibits an employer from refusing to hire or employ a person because of a listed characteristic, so the hiring decision itself is inside the discrimination provision. Government Code § 12940(c) covers apprenticeship programs, other training programs leading to employment, and unpaid internships. Government Code § 12940(j)(1) names an employee, an applicant, an unpaid intern or volunteer, and a person providing services pursuant to a contract among the people who can be harassed unlawfully.

Where to start

Write down the treatment and the reason behind it. What was said, by whom, when, and who else heard it. The statute turns on why something happened, so the details that seem too small to matter, a remark in a hallway, the timing of a schedule change after you raised something, belong on that list.

Then get clear on two facts about your workplace: roughly how many people work there, and whether what you are describing is closer to a decision made about you or to conduct directed at you. Those two answers point at different subdivisions with different definitions of "employer."

If you are also weighing whether a claim is worth pursuing at all, our guide to what an employment case is worth in California, including punitive damages and what you actually take home sets out how these cases get valued.

We act for employees across California, we do not represent employers, and the first conversation is free.

The Law Offices of Jonathan J. Delshad is a Los Angeles based employment law firm representing employees across California in wrongful termination, discrimination, retaliation, harassment, and wage and hour matters. Representing employees is the core of the firm's practice. Mr. Delshad serves as Editor-in-Chief of the California Wrongful Termination Law Review and trained at Latham & Watkins. Recognition includes Super Lawyers (2022 to 2026), Best Lawyers (since 2017), and an Avvo 10.0 "Superb" rating. Reviewed for California employment law accuracy. Last updated: August 24, 2026.

Attorney advertising. This article is educational only and is not legal advice. Reading it does not create an attorney-client relationship, which exists only under a signed engagement agreement. Every case is different, and outcomes depend on the specific facts. Deadlines can run early, so consult a lawyer promptly about your situation.