Disparate Treatment Discrimination: What California Business Owners Need to Know
Introduction
California’s Fair Employment and Housing Act (FEHA) is one of the strongest anti-discrimination laws in the nation and applies to both public and private employers with five or more employees (Cal. Gov’t Code § 12940(a); Cal. Gov’t Code § 12926(d)). Every business owner needs to understand what the law prohibits and how to protect their company from costly legal claims.
What Is Disparate Treatment?
Disparate treatment is intentional discrimination based on a person’s protected characteristic—such as race, gender, disability, age, religion, sexual orientation, and more. Under FEHA, it is unlawful for an employer to treat an employee or applicant less favorably because of these characteristics (Cal. Gov’t Code § 12940(a)). This applies to all employment decisions, including hiring, firing, promotion, demotion, compensation, job assignments, and discipline.
Key Elements of a Disparate Treatment Claim
To prove a disparate treatment claim under FEHA, an employee or applicant must establish:
The employer is covered by FEHA—a private employer with five or more employees or a public entity (Cal. Gov’t Code § 12926(d)).
The plaintiff had a job, applied for a job, or otherwise had a covered relationship with the employer.
The employer took an adverse employment action (such as termination, refusal to hire, demotion, denial of promotion, or discipline) (Cal. Gov’t Code § 12940(a)).
The plaintiff’s protected characteristic (e.g., race, gender, age, disability) was a substantial motivating reason for the employer’s action (Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (Cal. 2013)).
The plaintiff suffered harm.
The employer’s conduct was a substantial factor in causing that harm (Mamou v. Trendwest Resorts, Inc., 165 Cal.App.4th 686, 713 (Cal. Ct. App. 2008)).
Disparate treatment can also occur if an employer discriminates based on perceived membership in a protected class or association with someone in a protected class (Cal. Gov’t Code § 12926(o)).
How These Cases Work
Disparate treatment claims follow a burden-shifting framework:
The employee must first present evidence of discrimination.
The employer can then assert a legitimate, nondiscriminatory reason for its decision (Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354–56 (Cal. 2000)).
The employee may then prove that the employer’s stated reason was pretext for illegal bias.
Direct evidence of intent is rare; most claims rely on circumstantial evidence, patterns, or the treatment of similarly situated employees (Mixon v. Fair Employment and Housing Com., 192 Cal.App.3d 1306, 1317 (Cal. Ct. App. 1987)).
Compliance Tips for California Business Owners
Regularly audit your practices: Ensure all employment decisions—hiring, discipline, pay, promotions—are based on objective, neutral criteria.
Train supervisors and HR professionals: They must understand FEHA’s requirements and recognize unconscious bias.
Thoroughly document all actions: Clear, consistent records are powerful evidence in defending against claims.
Respond promptly and appropriately to complaints: Investigate, take corrective action, and prevent retaliation.
Update workplace policies: Confirm your policies address all protected categories and are distributed to all staff.
Consult legal counsel: Especially when dealing with high-risk employment decisions involving protected classes.
Bottom Line
Disparate treatment discrimination claims can lead to costly lawsuits, back pay, reinstatement orders, attorney’s fees, and even punitive damages. By proactively fostering a culture of fairness, documenting objective business reasons for employment decisions, and staying current on FEHA obligations, California business owners can reduce legal risks and reinforce a productive, inclusive workplace.
Citations:
Cal. Gov’t Code § 12940(a); Cal. Gov’t Code § 12926(d), (o); Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (Cal. 2013); Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354–56 (Cal. 2000); Mamou v. Trendwest Resorts, Inc., 165 Cal.App.4th 686, 713 (Cal. Ct. App. 2008); Mixon v. Fair Employment and Housing Com., 192 Cal.App.3d 1306, 1317 (Cal. Ct. App. 1987); CACI No. 2500.
