Gov. Code §12940 – FEHA Discrimination & Retaliation

Government Code section 12940 is the core of California’s Fair Employment and Housing Act (FEHA): it lists the employment practices that are illegal in California, including discrimination, harassment, retaliation, failing to accommodate a disability or religious practice, and failing to prevent discrimination and harassment. When a worker brings a FEHA claim, it almost always rests on one or more subdivisions of section 12940.

The stakes are real. A FEHA claim can recover lost wages, emotional distress damages and attorney’s fees. But you generally must file with California’s Civil Rights Department (CRD) within three years and then sue within one year after the CRD issues a right-to-sue notice.

This page explains what section 12940 itself says, subdivision by subdivision, who it covers, what counts as a violation, and the remedies and deadlines. If you want help spotting discrimination in your own workplace, start with our guide on how to recognize workplace discrimination.

What Government Code 12940 says

Section 12940 makes each of the following an “unlawful employment practice,” unless based on a bona fide occupational qualification or applicable security regulations. It was last amended effective January 1, 2025.

Subdivision	What is unlawful (paraphrased)
(a)	Refusing to hire, firing, or discriminating in pay or terms of employment because of a protected characteristic.
(b), (c)	Discrimination by labor unions, and in apprenticeships, training programs and unpaid internships.
(d)	Job ads or non-job-related questions that express a discriminatory limitation or preference.
(e), (f)	Medical or psychological exams and disability questions of applicants before a job offer, or of employees unless job-related and consistent with business necessity.
(h)	Retaliating because a person opposed practices FEHA forbids, or filed a complaint, testified or assisted in a FEHA proceeding.
(i)	Aiding, abetting, inciting, compelling or coercing a FEHA violation.
(j)	Harassment because of a protected characteristic, of employees, applicants, unpaid interns, volunteers and contractors.
(k)	Failing to take all reasonable steps necessary to prevent discrimination and harassment.
(l)	Failing to reasonably accommodate religious beliefs and observance, including religious dress and grooming, absent undue hardship.
(m)	Failing to reasonably accommodate a known physical or mental disability, absent undue hardship, or retaliating for requesting an accommodation.
(n)	Failing to engage in a timely, good-faith interactive process to find an effective accommodation.
(o), (p)	Genetic testing, and requiring disclosure of reproductive health decisions.
(q)	Requiring a driver’s license in a job posting unless driving is reasonably expected to be a job function and alternative transportation wouldn’t be comparable in travel time or cost.

By the numbersThree years

Protected characteristics under section 12940

Subdivision (a) lists the traits FEHA protects: 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, and veteran or military status.

Several of these terms are defined in Government Code 12926. For example, “age” protects people who have reached their 40th birthday, and “sex” includes pregnancy, childbirth and related medical conditions. For disability questions, see what qualifies as a disability under FEHA.

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Who section 12940 covers

• Employers with 5 or more employees. Government Code 12926(d) defines “employer” as any person regularly employing five or more persons, plus the state, cities and other public entities. Religious associations and corporations not organized for private profit are excluded from that definition, with limited exceptions.
• Any employer with 1 or more employees for harassment. Subdivision (j)(4)(A) uses a broader definition: anyone regularly employing one or more persons or regularly receiving services from one or more contractors.
• Individual harassers. An employee who harasses a coworker is personally liable, whether or not the employer knew about it (subdivision (j)(3)).
• Applicants, unpaid interns, volunteers and contractors are protected from harassment, and applicants are protected from discriminatory hiring.
• Labor unions, employment agencies and training programs are covered by their own subdivisions.

What counts as a violation

Discrimination

Discrimination means an adverse decision, such as not hiring, firing, demoting or paying less, because of a protected characteristic. The characteristic doesn’t have to be the only reason. Employers rarely admit bias, so these claims are usually proven through comments, comparisons with coworkers, timing and shifting explanations.

Harassment

Harassment is unwelcome conduct because of a protected characteristic. Loss of a tangible job benefit isn’t required. For harassment by a coworker or a nonemployee such as a customer, the employer is liable if it, or its supervisors, knew or should have known and didn’t take immediate and appropriate corrective action. That knew-or-should-have-known limit does not apply to harassment by a supervisor or agent. Sexual harassment need not be motivated by sexual desire. Learn more on our sexual harassment page.

Retaliation

Subdivision (h) protects you for opposing discrimination or harassment, such as complaining to HR, and for filing a CRD complaint, testifying or helping a coworker’s case. Requesting a disability or religious accommodation is also protected, whether or not the request was granted.

Accommodation and the interactive process

For a known disability, the employer must provide a reasonable accommodation unless it would cause undue hardship, and must engage in a timely, good-faith interactive process. These are separate violations, so an employer that refuses to talk with you about accommodations can be liable even apart from the outcome. See our page on failure to accommodate.

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Remedies and penalties

FEHA claims are civil claims; there is no fixed statutory penalty like the Labor Code’s $10,000 whistleblower penalty. Instead, a worker who wins may recover:

• Back pay and lost benefits, and in some cases front pay or reinstatement.
• Damages for emotional distress.
• Punitive damages in cases involving malice, oppression or fraud.
• Reasonable attorney’s fees and costs, including expert witness fees (Government Code 12965(c)(6)). A winning employer can recover fees only if the case was frivolous, unreasonable or groundless.

💡 Example: Lena, a hypothetical warehouse lead, asks for a lifting restriction after back surgery. Her employer refuses to discuss options and fires her. She earned $26 an hour for 40 hours a week, or $1,040 a week, and was unemployed for 20 weeks. Her back pay is $1,040 × 20 = $20,800. She may also have claims for failure to accommodate, failure to engage in the interactive process and disability discrimination, each under a different subdivision of section 12940.

Our guide to employment law damages in California explains each category.

Key fact

Deadlines and where to file

Step	Deadline	Source
File a complaint with the Civil Rights Department (CRD)	3 years from the unlawful practice (limited extensions apply, for example for late-discovered facts)	Gov. Code 12960(e)
File a lawsuit after a right-to-sue notice	1 year from the date of the notice	Gov. Code 12965(c)(1)

You don’t have to let the CRD investigate. According to the CRD, in employment cases you can request an immediate right-to-sue notice and go straight to court, but you must get that notice before you file a FEHA lawsuit. Our step-by-step guide on filing a CRD complaint and getting a right-to-sue notice walks through the forms. If federal law also applies, see CRD vs. EEOC.

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Related sections

• Gov. Code 12926: definitions, including “employer,” “disability” and “undue hardship.”
• Gov. Code 12945 and 12945.2: pregnancy disability leave and CFRA family leave. See FMLA and CFRA leave rights.
• Gov. Code 12945.8: leave and accommodations for crime victims, jury duty and court appearances.
• Gov. Code 12952 and 12954: the Fair Chance Act and off-duty cannabis use.
• Gov. Code 12960 and 12965: CRD complaint and lawsuit procedures.
• Labor Code 1102.5: whistleblower retaliation, which often overlaps with FEHA retaliation. See our Labor Code 1102.5 explainer.

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What to do if you think section 12940 was violated

1. Write down what happened, when, who was involved and any comments about your protected characteristic.
2. Keep copies of complaints you made to HR and any accommodation requests and responses.
3. Note how coworkers outside your protected group were treated in similar situations.
4. Request your personnel file and payroll records.
5. Calendar the three-year CRD deadline, and don’t sign a severance agreement without review.
6. Talk to an employment lawyer about whether to request an immediate right-to-sue notice.

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Frequently asked questions

What is Government Code 12940?

It is the FEHA section that defines unlawful employment practices in California: discrimination, harassment, retaliation, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination and harassment, and several hiring and medical-inquiry rules.

Does FEHA apply to small employers?

Most of section 12940 applies to employers with five or more employees. The harassment ban applies to employers with one or more employees, and individual harassers can be personally liable.

Can I sue a supervisor personally under section 12940?

For harassment, yes: subdivision (j)(3) makes an employee personally liable for harassment they commit. Discrimination and retaliation claims are generally brought against the employer.

Is complaining to HR protected?

Yes. Opposing a practice FEHA forbids, including an internal complaint about discrimination or harassment, is protected by subdivision (h). See fired after complaining to HR.

How long do I have to file?

Generally three years from the unlawful practice to file with the CRD, and then one year from the right-to-sue notice to file in court.

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