Discrimination

California Discrimination Defense — Employer Counsel

FEHA’s discrimination protections apply to employers with 5 or more employees for most claims (Cal. Gov. Code §12940(a)). The analytical framework most California courts apply to single-motive disparate-treatment cases is the McDonnell Douglas burden-shifting test. For mixed-motive cases, California applies the “substantial motivating factor” standard from Harris v. City of Santa Monica (2013) 56 Cal.4th 203, which is a meaningfully lower threshold for plaintiffs than the federal “but-for” standard in some contexts.

How Discrimination Defense Works in Practice

Most successful FEHA defenses are built before a claim is filed, through documented performance management, consistent application of policies across comparators, careful documentation of legitimate non-discriminatory reasons contemporaneous with the adverse action, and trained decision-makers. Disability discrimination, failure-to-accommodate, and failure-to-engage-in-the-interactive-process claims each have their own framework under Cal. Gov. Code §12940(m)-(n) and require a separate analytical approach. Whether the employer’s position is defensible turns on the documentary record, the decision-maker’s testimony, and the consistency of comparator treatment — all fact-specific.

Background Checks for California Employers

California employers face two overlapping sets of restrictions before running or acting on a background check. Under the federal Fair Credit Reporting Act, an employer must provide a standalone written disclosure and obtain the applicant’s written authorization before procuring a consumer report, and before taking any adverse action based on that report must provide a pre-adverse action notice, a copy of the report, and a summary of rights, then allow a reasonable opportunity to respond (15 U.S.C. §1681 et seq.). California layers additional requirements on top: the Investigative Consumer Reporting Agencies Act imposes parallel state disclosure obligations and limits reportable convictions to a seven-year lookback period (Civ. Code §§1786 et seq., 1786.18); the Fair Chance Act bars employers with five or more employees from asking about conviction history before a conditional offer, and requires an individualized assessment, written notice, and an opportunity to respond before rescinding an offer based on conviction history (Cal. Gov. Code §12952); and Labor Code section 432.7 restricts consideration of arrests not resulting in conviction, diversion program participation, and sealed or expunged records. Employers may not shift the cost of a required background check onto an applicant or employee: Labor Code sections 401 through 405 require the employer to bear the cost of any bond or security it requires as a condition of employment, and Labor Code section 2802 requires reimbursement of necessary expenses a current employee incurs in the discharge of duties. Whether a particular hiring or promotion decision complies with this framework is fact-specific and depends on the timing, the disclosures given, and the process followed after any adverse finding.

The Duty to Prevent Discrimination and Harassment

FEHA does not just prohibit discrimination and harassment; it separately requires employers to take all reasonable steps necessary to prevent them from happening. An employer that fails to do so can face liability for that failure alone, independent of whether the underlying harassment or discrimination claim succeeds. Courts look at concrete measures: a written policy, a functioning complaint procedure, training, and prompt follow-through when a complaint is made.

Cal. Gov. Code §12940(k).

Zero-Tolerance Policies as a Defense Tool

A clearly written, consistently enforced zero-tolerance policy for discrimination and harassment is one of the strongest pieces of evidence an employer can offer to show it met its prevention duty under FEHA. The policy only helps if it is actually followed: courts and juries look past the document itself to whether the employer investigated complaints promptly and applied its own rule consistently, including to supervisors and high performers.

Cal. Gov. Code §12940(k).

When to Contact Us

Discrimination defense is most cost-effective when policies, documentation, and manager training are audited proactively. Contact Michael Trust Law, APC.

Initial contact does not create an attorney-client relationship — see Disclaimers.

Cal. Gov. Code §12940(a); Cal. Gov. Code §12940(m)-(n); Harris v. City of Santa Monica (2013) 56 Cal.4th 203; 15 U.S.C. §1681 et seq. (Fair Credit Reporting Act); Cal. Civ. Code §§1786 et seq., 1786.18 (Investigative Consumer Reporting Agencies Act); Cal. Gov. Code §12952 (Fair Chance Act); Lab. Code §432.7; Lab. Code §§401–405; Cal. Lab. Code §2802.