What counts as illegal discrimination or harassment at work in California

This page explains what the law covers. It is general information, not legal advice. For filing steps, see How to file a discrimination complaint in California.

Is what my boss is doing illegal?

It may be. In California, workplace discrimination is illegal when three things are true:

1. You were treated worse. For example, you were not hired, fired, paid less, given worse shifts, passed over for a raise, disciplined harder, or pushed out.
2. It was because of a protected trait. The law lists which traits count (below).
3. Your employer is covered. For discrimination, that means 5 or more workers. For harassment, every employer is covered.

If a boss is rude to everyone, or makes a choice you think is unfair but it has nothing to do with a protected trait, it may not be illegal discrimination. That does not mean you have no rights. Unpaid wages, unsafe work and punishment for speaking up are covered by other laws. See Your rights at work, with or without papers.

Which traits does California protect?

The California Civil Rights Department lists these for jobs:

• Race and color
• Ancestry and national origin
• Religion and creed
• Age, 40 and over
• Disability, mental and physical
• Sex and gender, including pregnancy, childbirth, breastfeeding and related medical conditions
• Sexual orientation
• Gender identity and gender expression
• Medical condition
• Genetic information
• Marital status
• Military or veteran status
• Reproductive health decision making

What about discrimination because of immigration status, national origin or accent?

Your rights do not depend on your papers. The Civil Rights Department says California's job discrimination law applies to workers whatever their citizenship or immigration status, and the department does not ask about status.

California's rules on national origin go further. Under these state rules:

• Immigration status. Treating a worker worse because of immigration status is against the law, unless the employer proves federal immigration law requires it. In plain words: an employer must still follow federal work permit rules, like Form I-9. It may not use your status as an excuse to pay you less, insult you or treat you worse.
• Immigration threats. Threatening to call immigration or the police about you or your family because you used your rights is illegal retaliation. Threats of deportation and insults about immigration status can also be harassment.
• Accent. Treating you worse because of your accent is illegal unless your employer proves it truly gets in the way of the job.
• English skills. Requiring a level of English the job does not truly need is illegal.
• Language rules. English only rules are allowed only in narrow cases, and never on breaks or lunch. See Can my employer require English only at work?
• Driver's license. Treating you worse because you have a California license issued without proof of legal presence (often called an AB 60 license) is illegal, unless a law requires a different license for the job. See Driver's license without papers.

What is harassment?

Harassment is unwanted words or actions about a protected trait that make work hostile, frightening or humiliating. It can come from a boss, a coworker, or even a customer. Examples:

• Slurs, jokes or insults about your race, religion, country or accent
• Mocking how you speak, pray or dress
• Comments about deporting you or your family
• Sexual comments, touching, or pressure for dates
• Offensive pictures, messages or gestures

To be illegal, harassment must be serious or keep happening. California law says a single incident can be enough to bring a harassment case if it unreasonably interfered with your work (Government Code 12923). That applies to every kind of harassment the law covers, not only national origin.

Harassment is illegal at every workplace in California, even one with fewer than 5 workers. For harassment, the law counts any employer with one or more workers (Government Code 12940(j)).

What are other kinds of discrimination?

Discrimination is not only insults. It can also look like this:

• Refusing reasonable changes. You may have the right to ask for changes at work for a disability, pregnancy or religious practice. See Changes at work because of a disability, Changes at work while pregnant or breastfeeding, and Religious clothing and time to pray.
• Rules that hit one group harder. A rule that looks neutral but mostly shuts out one group, without a real job reason, can be illegal.
• Unequal pay. Being paid less than coworkers for similar work because of sex, race or ethnicity. See Equal pay.
• Punishment for complaining. Being fired or punished because you complained about discrimination, filed a complaint, or testified or helped a coworker with one (Government Code 12940(h)). Threats to call immigration because you used your rights are named in California's rules. See What counts as illegal retaliation at work.

How can I tell? Some examples

These are examples only. Real cases turn on the facts.

What should I write down?

Proof helps more than anything. Start now, and keep notes on your own phone or in a notebook at home.

• Date, time and place of each incident
• Exact words, as close as you can remember
• Who did it, and their job
• Who saw or heard it
• How others were treated in the same situation
• Any change after you complained or after your trait became known (for example, after you said you were pregnant)
• Texts, emails, schedules and pay stubs

Do not take company papers you are not allowed to have. Ask a clinic what is safe to keep.

What can I do next?

1. Keep your notes going. Add to them each time something happens.
2. Check your workplace rules. Many employers have a way to report harassment. Reporting in writing creates a record. Keep a copy.
3. Talk to a free clinic. A clinic can tell you whether what happened is likely covered and what your deadline is. See Free help with a work problem in the Bay Area.
4. File with the state in time. You generally have 3 years from the last thing that happened to file with the Civil Rights Department. You must file there first even if you plan to go to court. Steps: How to file a discrimination complaint.

What about federal law?

Federal law also bans job discrimination. The federal agency is the U.S. Equal Employment Opportunity Commission (EEOC). Federal law reaches fewer employers than California law. The main federal law, Title VII, covers employers with 15 or more workers (42 U.S.C. 2000e(b)). California's law covers employers with 5 or more, and harassment at any size, so it covers more people. A clinic can help you decide where to file.

Questions people ask

My employer has only 3 workers. Am I protected? From harassment, yes. Harassment is illegal at every workplace. The state discrimination rules on firing, pay and hiring cover employers with 5 or more workers.

Do I have to be fired to have a case? No. Pay, hours, shifts, promotions, discipline and harassment all count.

I am a job applicant, not an employee yet. Does this apply? Yes. California's rules protect applicants from discrimination in hiring.

Can my boss ask about my immigration status? Federal rules require the I-9 form at hiring. Beyond that, California's rules say status may not be used against you unless federal immigration law requires it. If you were asked for more than the I-9 requires, see the notice above.

Will filing hurt my immigration case? The Civil Rights Department does not ask about status. For your own case, ask an immigration lawyer or accredited representative. See Find a trusted lawyer.

Who can help?

These are public offices and nonprofit clinics. Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• California Civil Rights Department: 800-884-1684, or 711 relay. Employment (calcivilrights.ca.gov)
• Legal Aid at Work, Workers' Rights Clinic: free and confidential for people within its income limits, or age 60 and over. Spanish, Mandarin, Cantonese and many other languages. East Palo Alto line (415) 404-9093. Workers' Rights Clinic
• Legal Aid at Work, Language Rights Helpline: for language, accent or English based treatment. 1-800-864-1664. Language Rights Helpline
• U.S. Department of Justice, Immigrant and Employee Rights Section: papers and citizenship status discrimination. 1-800-255-7688. IER
• More places: Free help with a work problem in the Bay Area

You deserve to be treated with dignity at work. Write it down, reach out, and do not lose hope.

Is there a log I can print?