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Workplace Discrimination Examples: California Employer Defense Guide

February 25, 2025 by Lerner & Weiss

California employers face some of the nation’s most stringent workplace discrimination laws. Under the California Fair Employment and Housing Act (FEHA) and related statutes, the scope of prohibited conduct is broader and the potential liability greater than under federal law. At Lerner & Weiss, our employer defense attorneys regularly assist businesses in navigating these complex legal requirements while mounting effective defenses when discrimination claims arise.

Common Types of Workplace Discrimination in California

Understanding the various forms discrimination can take is the first step in prevention and defense. California law recognizes numerous protected characteristics, with discrimination claims typically falling into these categories:

Race and Color Discrimination

This includes treating employees differently based on race, color, or perceived racial characteristics. Examples include:

  • Denying promotions to employees of certain racial backgrounds
  • Imposing stricter performance standards on minority employees
  • Making employment decisions based on racial stereotypes
  • Creating hostile environments through racial comments or jokes

Age Discrimination

Applying to workers 40 and older, age discrimination may manifest as:

  • Passing over qualified older workers for promotion
  • Implementing layoffs that disproportionately affect older workers
  • Making comments about seeking “fresh blood” or “young energy”
  • Excluding older workers from training opportunities or new initiatives

Sex and Gender Discrimination

This broad category includes differential treatment based on:

  • Gender or gender identity
  • Pregnancy or potential pregnancy
  • Childbirth or related medical conditions
  • Gender stereotyping

Common examples include:

  • Rejecting female candidates for traditionally male roles
  • Denying promotions to mothers based on assumptions about family priorities
  • Different dress codes or appearance standards for different genders
  • Pay disparities between men and women performing substantially similar work

Disability Discrimination

This involves treating employees or applicants unfavorably because of a disability, perceived disability, or association with a disabled person. Examples include:

  • Refusing to provide reasonable accommodations
  • Screening out candidates with disabilities through non-job-related requirements
  • Harassment based on physical or mental impairments
  • Making employment decisions based on unfounded safety concerns

Sexual Orientation and Gender Identity Discrimination

California law explicitly protects employees from discrimination based on:

  • Sexual orientation
  • Gender identity
  • Gender expression
  • Transgender status

Examples include:

  • Refusing to hire LGBTQ+ applicants
  • Harassment based on gender nonconformity
  • Denying benefits to same-sex partners
  • Requiring adherence to gender norms related to birth sex

Religious Discrimination

This involves treating employees differently based on religious beliefs or practices, including:

  • Refusing to accommodate religious practices
  • Requiring participation in religious activities
  • Scheduling policies that disadvantage certain religious observers
  • Harassment based on religious attire or expressions of faith

National Origin Discrimination

This category includes discrimination based on:

  • Country of origin
  • Ancestry
  • Cultural practices
  • Language and accent

Examples include:

  • English-only policies that aren’t justified by business necessity
  • Refusing to hire applicants from certain countries
  • Stereotyping employees based on their national origin
  • Harassment about accents or cultural practices

Real-World Case Examples: Learning from Discrimination Claims

Our firm has successfully defended numerous employers against discrimination claims. These case studies illustrate effective defense strategies and important lessons:

Case Study: Violations of California Fair Housing and Employment Act (January 2024)

Situation: Client was sued by female job applicant based upon allegations of Discrimination in Violation of the California Fair House and Employment Act (“FEHA”), Failure to Prevent Violation of FEHA, and Wrongful Failure to Hire.

Our Approach: After reviewing allegations of complaint, Lerner & Weiss meets and confers with plaintiff’s counsel’s regarding deficiencies in complaint. Based upon meet and confer, counsel for plaintiff files a First Amended Complaint. After hearing on Demurrer to First Amended Complaint, the parties engage in discovery and then agree to participate in mediation.

Result: At mediation, matter settles for $50,000.00 with a monthly payment plan over 16 months.

Case Study: Age Discrimination Claim with Multiple Labor Code Allegations (June 2023)

Situation: Former employee files complaint for Meal and Rest period Violations, Unfair Business Practices, Age Discrimination, Wrongful Termination, and Damages for Mental Pain, Anguish and Emotional Distress. The former employee sought damages in excess of $80,000.00 for lost wages, plus future damages in excess of $55,000.00, as well as additional damages for alleged pain, suffering and emotional distress.

Our Approach: Lerner & Weiss argued that the former employee was not terminated based upon his age, but for legitimate business reasons, and was not replaced by a younger employee; that the alleged damage period was significantly shorter than alleged by the former employee based upon time defendant’s business operations were closed due to COVID; that the former employee had signed a valid meal period waiver, and was provided all rest breaks; and, that the former employee failed to properly mitigate any damages he alleged to have suffered.

Result: The matter resolved at mediation with payment to the former employee of $32,000.00.

Critical Defense Strategies for California Discrimination Claims

Based on our extensive experience defending employers, we’ve identified several effective strategies for responding to discrimination allegations:

1. Legitimate, Non-Discriminatory Rationale

One of the most powerful defenses is demonstrating that employment decisions were based on legitimate, non-discriminatory business reasons rather than protected characteristics. This includes:

  • Documenting performance issues before adverse employment actions
  • Maintaining consistent application of policies across all employee groups
  • Preserving records of decision-making processes for employment actions
  • Creating clear, objective criteria for hiring, promotion, and termination decisions

Our employment law attorneys help clients develop robust documentation systems that establish legitimate rationales for employment decisions, significantly strengthening defense positions.

2. Consistent Policy Implementation

Demonstrating consistent policy application is crucial when defending discrimination claims. This includes:

  • Applying discipline policies uniformly across protected categories
  • Ensuring performance evaluation standards are applied consistently
  • Making accommodations available to all qualifying employees
  • Maintaining records that show similar treatment in similar situations

When discrimination allegations arise, we help clients gather and organize evidence of consistent policy implementation to rebut claims of differential treatment.

3. Prompt and Effective Remedial Action

When discrimination concerns are raised internally, employers who take prompt, effective remedial action are in a much stronger defense position. Effective response includes:

  • Thorough investigation of all complaints
  • Appropriate disciplinary measures for policy violations
  • Follow-up to ensure the concerning behavior has stopped
  • Protection against retaliation for complainants

Our business litigation experience shows that employers who respond promptly and effectively to internal complaints substantially reduce their liability risk.

4. Procedural Defenses

Various procedural defenses can limit or eliminate discrimination liability:

  • Failure to exhaust administrative remedies (filing with DFEH/EEOC)
  • Statute of limitations defenses
  • Scope of release in prior settlements
  • Proper corporate entity identification

We regularly employ these procedural defenses to narrow or dismiss claims at early stages of litigation.

5. After-Acquired Evidence

Evidence of employee misconduct discovered after termination can limit damages in discrimination cases. While not a complete defense to liability, this doctrine can significantly reduce exposure by establishing that the employee would have been legitimately terminated had the misconduct been known.

6. Failure to Mitigate Damages

In discrimination cases seeking lost wages, plaintiffs must make reasonable efforts to find comparable employment. We often investigate plaintiffs’ job search efforts and either negotiate reduced settlements or present evidence at trial that the plaintiff failed to mitigate damages.

Preventive Measures: Building a Discrimination-Resistant Workplace

The most cost-effective approach to discrimination claims is preventing them through proactive measures. Based on our defense experience, we recommend these preventive strategies:

Comprehensive Anti-Discrimination Policies

Develop clear, thorough policies that:

  • Define prohibited conduct with specific examples
  • Establish multiple reporting channels for concerns
  • Outline investigation procedures
  • Prohibit retaliation against those who report concerns

Our employment law practice helps clients develop policies that both comply with California’s stringent requirements and provide practical guidance for employees and managers.

Regular Training Beyond Compliance Minimums

While California mandates sexual harassment training, effective prevention requires more comprehensive education:

  • Train managers on all forms of prohibited discrimination
  • Provide practical examples of appropriate vs. inappropriate conduct
  • Teach proper documentation of performance issues
  • Educate decision-makers about unconscious bias

Structured Employment Decision Processes

Implement structured processes for employment decisions that:

  • Require documentation of legitimate business reasons
  • Involve multiple decision-makers when possible
  • Include review of decisions for disparate impact
  • Maintain consistent evaluation criteria

Accommodation and Interactive Process Protocols

Develop clear protocols for:

  • Responding to accommodation requests
  • Conducting good faith interactive processes
  • Documenting accommodation efforts
  • Maintaining consistency across similar situations

Our clients who implement robust accommodation protocols significantly reduce their exposure to disability and religious discrimination claims.

Regular Policy and Practice Audits

Conduct periodic reviews of employment practices to identify potential issues before they become claims:

  • Analyze demographic patterns in hiring, promotion, and termination
  • Review accommodation request outcomes for consistency
  • Assess complaint response effectiveness
  • Evaluate manager compliance with anti-discrimination policies

Understanding California’s Unique Discrimination Law Landscape

California’s discrimination laws differ from federal standards in several key ways that affect defense strategies:

Broader Protected Categories

California protects numerous characteristics not covered by federal law, including:

  • Gender identity and expression
  • Sexual orientation
  • Marital status
  • Military or veteran status
  • Medical condition
  • Political activities or affiliations
  • Status as a victim of domestic violence, sexual assault, or stalking

Defense strategies must account for these broader protections.

Lower Thresholds for Hostile Environment Claims

California courts generally apply a lower threshold for what constitutes a legally actionable hostile environment. A successful defense must address:

  • The severity and pervasiveness of the alleged conduct
  • The context in which incidents occurred
  • The employer’s response to reported concerns
  • The impact on the plaintiff’s work environment

Individual Supervisor Liability

Unlike federal law, FEHA permits individual liability for supervisors in certain circumstances, particularly for harassment. Defense strategies must often address claims against both the company and individual managers.

Expanded Damages

California discrimination claims may involve:

  • Uncapped compensatory and punitive damages
  • Attorney’s fees for prevailing plaintiffs
  • Extended back pay periods
  • Front pay until reinstatement or for extended periods

These expanded damages increase the importance of early intervention and effective defense strategies.

Responding to Agency Complaints: DFEH/CRD Strategies

Many discrimination claims begin with complaints to the California Civil Rights Department (formerly DFEH). Effective response to these administrative complaints is crucial:

Initial Response Approach

When responding to agency complaints:

  • Provide thorough, factual responses that establish legitimate reasons for employment decisions
  • Include supporting documentation demonstrating non-discriminatory treatment
  • Address each allegation specifically
  • Consider whether early resolution is appropriate

Our employer defense attorneys work closely with clients to develop strategic responses to agency complaints that position cases favorably for either dismissal or favorable settlement.

Mediation Considerations

The CRD often offers mediation. When deciding whether to participate, consider:

  • The strength of your defense position
  • The cost of continued proceedings
  • The potential for resolution before a lawsuit
  • The opportunity to better understand the complainant’s position

We help clients evaluate when early mediation may present cost-effective resolution opportunities.

Strategic Use of Position Statements

Position statements submitted to the CRD require careful consideration, as they:

  • May be discoverable in subsequent litigation
  • Can create inconsistencies if not carefully crafted
  • Establish the employer’s initial position on the allegations
  • May influence the agency’s investigation priorities

We help clients develop position statements that present strong defenses while avoiding potential pitfalls.

Industry-Specific Discrimination Concerns

Different industries face distinct discrimination risks based on their operations and workforce:

Healthcare

Healthcare employers often face unique challenges with:

  • Religious accommodation requests related to certain procedures
  • Disability accommodations for staff with patient care responsibilities
  • Age discrimination concerns in high-stress environments
  • Gender discrimination in traditionally gender-segregated roles

Technology

The technology sector frequently encounters:

  • Age discrimination allegations in youth-oriented cultures
  • Gender discrimination claims in male-dominated environments
  • National origin discrimination in companies with international workforces
  • Issues related to flexible work arrangements and accommodation requests

Retail and Hospitality

Customer-facing businesses often deal with:

  • Image-based discrimination claims related to appearance standards
  • Religious accommodation requests for scheduling or attire
  • Disability accommodation challenges in customer service positions
  • Language and accent discrimination concerns

Manufacturing and Construction

These industries typically face:

  • Physical ability discrimination claims
  • Gender discrimination in traditionally male environments
  • Age discrimination concerns related to physical demands
  • Safety-related challenges in accommodation requests

Our industry-specific experience allows us to tailor defense strategies to each client’s unique operational context.

Recent Developments in California Discrimination Law

Several recent developments affect discrimination defense strategies:

Expanded Pay Data Reporting

California now requires larger employers to submit annual pay data reports broken down by race, ethnicity, and gender. These reports can create evidence for pattern-and-practice discrimination claims, making proactive pay equity analysis increasingly important.

Remote Work Accommodation Precedents

Recent cases have addressed whether remote work constitutes a reasonable accommodation, with courts generally becoming more accepting of remote arrangements as presumptively reasonable in appropriate circumstances. For more information on remote work legal issues, see our article on California labor laws for remote work.

COVID-19 Related Discrimination Claims

The pandemic has generated new categories of discrimination claims, including:

  • Age discrimination related to COVID-19 vulnerability
  • Disability discrimination related to COVID-19 complications
  • Religious discrimination related to vaccination requirements
  • National origin discrimination related to COVID-19 origins

Algorithmic Decision-Making Scrutiny

As employers increasingly use AI and algorithms in employment decisions, California regulators are focusing on potential discrimination embedded in these systems. Employers using such tools must be prepared to demonstrate their non-discriminatory impact.

The Role of Documentation in Discrimination Defense

Documentation is often the deciding factor in discrimination cases. Essential documentation includes:

Performance Management Records

Maintain thorough records of:

  • Performance evaluations
  • Performance improvement plans
  • Verbal and written warnings
  • Coaching and development efforts

These records establish legitimate, non-discriminatory reasons for adverse actions.

Decision-Making Documentation

Document the rationale for significant employment decisions:

  • Selection criteria for promotions or special assignments
  • Reasons for reorganizations or reductions in force
  • Comparative qualifications in hiring decisions
  • Business necessity for policy changes

Accommodation Efforts

Maintain detailed records of:

  • All accommodation requests
  • Interactive process discussions
  • Accommodations considered and implemented
  • Business reasons for denied accommodations

Complaint Investigation Records

Document all steps in investigating discrimination complaints:

  • Interview notes with witnesses
  • Evidence collected and reviewed
  • Conclusions reached
  • Remedial actions taken

Our business law practice helps clients develop documentation systems that balance operational efficiency with litigation readiness.

Beyond Defense: The Business Case for Inclusive Practices

While effective defense strategies are essential, the most successful employers recognize that inclusive practices provide business advantages beyond litigation avoidance:

Talent Acquisition and Retention

Inclusive workplaces typically experience:

  • Larger and more diverse candidate pools
  • Improved employee engagement
  • Reduced turnover across demographic groups
  • Stronger employee loyalty and advocacy

Innovation and Problem-Solving

Research consistently shows that diverse teams:

  • Identify more creative solutions
  • Recognize a broader range of opportunities
  • Make fewer group-think errors
  • Better understand diverse customer needs

Market Reputation and Brand Value

Companies known for inclusive practices often enjoy:

  • Stronger brand perception among consumers
  • Better relationships with diverse customer bases
  • Positive media coverage
  • Advantages in competitive markets

From Vulnerability to Leadership: Transforming Your Approach to Workplace Discrimination

Discrimination claims present significant risks, but they also create opportunities for employers to strengthen their overall employment practices. At Lerner & Weiss, we help clients transform potential vulnerabilities into strategic advantages.

Our case results demonstrate the effectiveness of our approach. By combining thorough documentation review, strategic legal arguments, and decisive action, we’ve repeatedly turned potentially costly discrimination claims into manageable resolutions. Our January 2024 case, which settled for $50,000 instead of proceeding to potentially costly litigation, exemplifies this approach.

For California employers seeking to minimize discrimination liability while maximizing workplace effectiveness, the path forward involves both rigorous compliance systems and partnership with experienced legal counsel. Our California employer defense attorneys provide both preventive guidance and strategic defense to help employers confidently navigate California’s challenging discrimination law landscape.

Contact our Los Angeles employment lawyers today to discuss how we can help your business develop discrimination defense strategies that protect against liability while enhancing your workplace culture.

This article is for informational purposes only and does not constitute legal advice. For specific guidance regarding your company’s situation, please consult with a qualified attorney.