What Is California Government Code Section 12940?

California Government Code Section 12940 is the heart of the state’s Fair Employment and Housing Act (FEHA). It makes it unlawful for an employer to discriminate against, harass, or retaliate against workers based on a long list of protected characteristics, and it requires employers to reasonably accommodate disabilities and religious practices. The statute reaches almost every employer in California, protects a broader group of workers than federal law, and lets successful plaintiffs recover damages with no statutory cap.

What Section 12940 Prohibits

The statute does three main things. It bars discrimination in employment decisions. It bars harassment that creates a hostile work environment. And it bars retaliation against workers who assert their rights. Alongside those prohibitions, it imposes affirmative duties: employers must take reasonable steps to prevent harassment, and they must engage with employees who need accommodation for a disability or religious practice.

Each of those categories is a separate basis for liability. An employee can lose on discrimination and still win on retaliation. An employer can be sued for failing to prevent harassment even if no single incident is proven. And a refusal to even discuss an accommodation request is itself a violation, regardless of whether the accommodation would have been granted.

Who Is Covered

Coverage depends on the type of claim. For discrimination in hiring, firing, pay, and other employment decisions, FEHA applies to any employer that regularly employs five or more people.¹ For harassment claims the threshold drops to one employee, so essentially every private employer in the state is on the hook.² Government agencies at every level are covered no matter how small.

Protection reaches beyond conventional employees. Job applicants, unpaid interns, apprentices, and people in other work-experience programs are all covered.³ The characteristics the law protects are:

Race, color, national origin, and ancestry
Religious creed
Physical disability, mental disability, and medical condition
Genetic information
Marital status
Sex, gender, gender identity, and gender expression
Sexual orientation
Age, defined as 40 and older¹
Veteran or military status
Reproductive health decisionmaking, added in 2023, which covers choices about contraception, fertility treatments, and similar medical services³

Discrimination in Employment Decisions

Subdivision (a) of Section 12940 makes it unlawful to use any protected characteristic as the basis for an employment decision. The reach is wide: hiring, training selection, job assignments, promotions, compensation, benefits, transfers, and termination.³ Passing someone over for a raise because of their gender, or refusing to hire a qualified applicant because of their national origin, both fall squarely within the ban.

Two narrow exceptions exist. The first is the bona fide occupational qualification, which lets an employer base a decision on a protected characteristic only when that characteristic is genuinely necessary to do the job. Courts read this exception very tightly, and it rarely applies outside situations like casting roles that call for a specific gender. The second is for disability: an employer can decline to hire or can terminate an employee with a disability if the person cannot perform the essential functions of the job even with reasonable accommodation, or if doing so would create a genuine safety risk.³ That is a factual determination, not a license to exclude disabled workers categorically.

Harassment and Employer Liability

Harassment under Section 12940 means unwelcome conduct tied to a protected characteristic that is severe or pervasive enough to create a hostile work environment. The standard is both subjective and objective. The targeted person must find the conduct offensive, and a reasonable person in the same situation must also find it offensive.

Who did the harassing determines how liability works. When a supervisor is the harasser, the employer is strictly liable, meaning the company is on the hook whether or not anyone in management knew.⁴ This is stricter than federal law, which sometimes allows an affirmative defense. Under FEHA, that defense is not available for supervisor harassment.

When the harasser is a coworker or a nonemployee such as a customer or vendor, the standard shifts to negligence. The employer is liable only if it knew or should have known about the conduct and failed to take prompt corrective action.⁴

Subdivision (k) layers on a separate duty. Employers must take all reasonable steps to prevent harassment and discrimination in the first place.² Failing to maintain adequate prevention measures is itself an unlawful practice. California enforces that prevention duty with a concrete training requirement: employers with five or more employees must provide periodic sexual harassment and abusive conduct prevention training to both supervisors and nonsupervisory staff.⁵

Retaliation

Subdivision (h) bars employers from punishing workers who exercise their FEHA rights. An employer cannot fire, demote, or otherwise take adverse action against someone for opposing a prohibited practice, filing a complaint, testifying in a proceeding, or helping an investigation.²

Two features make this protection powerful. An internal complaint to a supervisor or HR counts as protected activity; you do not need to go to the government first. And the protection survives even if the underlying discrimination claim does not, so long as you held a genuine, good-faith belief that the conduct was unlawful. The statute also specifically shields employees who request a religious or disability accommodation from retaliation, whether or not the request was granted.³

Accommodation Duties

Section 12940 requires employers to accommodate both disabilities and religious practices. These are not courtesies. Refusing to accommodate, or refusing to seriously explore an accommodation, is a standalone violation.

Disability

Employers must provide reasonable accommodation for a known physical or mental disability unless doing so would create an undue hardship. California’s definition of disability is broader than the federal ADA definition, so more conditions qualify. Undue hardship means “significant difficulty or expense” judged against the employer’s overall resources and the nature of the business.¹

Subdivision (n) adds a separate obligation: a timely, good-faith interactive process with the employee to figure out what accommodation would actually work.² That is a two-way conversation. Refusing to engage in it violates the statute even if the ultimate request would have been unreasonable.

Religion

Employers must reasonably accommodate religious beliefs, observances, and practices. The statute specifically names Sabbath observance, religious holidays, travel time for religious events, and religious dress and grooming as examples that may require accommodation.³ The employer must explore alternatives before denying a request, and an “accommodation” that segregates the employee from coworkers or the public is not reasonable. The undue hardship standard tracks the one used for disability: significant difficulty or expense, not minor inconvenience.

How to Enforce Your Rights

Enforcement runs through the California Civil Rights Department (CRD), the state agency that administers FEHA. You have three years from the last discriminatory act to submit an intake form.⁶ Miss the deadline and the claim is gone.

After intake, CRD interviews you to decide whether your allegations fall within its jurisdiction. If the complaint is accepted, CRD drafts a formal complaint for your signature, serves the employer, and conducts an independent investigation.⁶

You do not have to wait through that process. You can ask CRD for an immediate right-to-sue notice and head straight to court.⁶ The notice is a prerequisite for filing a FEHA employment lawsuit, and once you receive it you have one year to sue.⁷

If the conduct also violates federal law such as Title VII, a single filing can preserve both sets of rights. CRD has a worksharing agreement with the federal Equal Employment Opportunity Commission, so a complaint lodged with one agency can be cross-filed with the other.⁸

What You Can Recover

A successful FEHA claim can produce a wide range of remedies:

Back pay for wages and benefits lost from the date of the discriminatory action
Front pay for projected future earnings when returning to the job is not realistic
Hiring or reinstatement into the position
Emotional distress damages
Punitive damages for particularly egregious employer conduct
Attorney’s fees and costs
Court-ordered policy changes and training⁹

The biggest practical reason to sue under FEHA rather than federal law is damages. California places no cap on compensatory or punitive damages. Under federal Title VII, combined compensatory and punitive damages are capped at amounts ranging from $50,000 to $300,000 depending on employer size.¹⁰ FEHA has no such ceiling. For employees of large companies with serious misconduct in the record, that difference can be worth hundreds of thousands of dollars or more.

1
California Legislative Information. California Government Code 12926
2
California Legislative Information. California Code GOV 12940 – Unlawful Practices, Generally
3
California Legislative Information. California Government Code 12940
4
Justia. California Civil Jury Instructions (CACI) 2525 – Harassment – Supervisor Defined
5
California Civil Rights Department. Sexual Harassment Prevention Training for Employers FAQ
6
California Civil Rights Department. Complaint Process
7
California Legislative Information. California Code GOV 12965
8
U.S. Equal Employment Opportunity Commission. Fair Employment Practices Agencies (FEPAs) and Dual Filing
9
California Civil Rights Department. Employment Remedies
10
U.S. Equal Employment Opportunity Commission. Remedies for Employment Discrimination