Small Employers Can Be Liable For Sexual/Racial Harassment and Discrimination

Under FEHA (California Fair Employment and Housing Act) anti-discrimination laws, only employers who employ five or more employees can be liable for unlawful discrimination. This means that the FEHA protection against workplace discrimination generally does not extend to employees who work for smaller employers. However, in limited circumstances there is a way around this issue. Unfortunately, it only applies to racial/ethnic and religious discrimination as well as discrimination based on sex or gender, and not to other types of discrimination (such as disability discrimination).

An employee who was subjected to or fired due to ethnic/racial/religious discrimination or sex discrimination can a file a claim for wrongful termination based on the California Constitution Article 1 Section 8, which provides: A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race,
creed, color, or national or ethnic origin.

The above Constitutional provision is not limited to any specific employer, and therefore all the employers are subject to it. This provides one avenue for an employee of a small office (such as small medical, accounting, advertising offices, etc.) to bring a claim for certain types of discrimination, which is otherwise not available under FEHA.