The California Fair Employment and Housing Act (FEHA) prohibits employment practices that discriminate on the basis of marital status, sex (including pregnancy, childbirth, breastfeeding, or related medical conditions), gender, gender identity, gender expression, and sexual orientation (including heterosexuality, homosexuality, and bisexuality) (CA Gov. Code Sec. 12900 et seq.). The Act covers all public employers and private employers with five or more employees.
"Sex" defined. The Act defines "sex" to include:
• Pregnancy or related medical conditions
• Childbirth or related medical conditions
• Breastfeeding or related medical conditions
(CA Gov. Code Sec. 12926(r)).
"Gender" defined. California law defines “gender” broadly to mean the employee's actual sex or the employer's perception of the employee's sex. The term includes "gender expression," which is defined as a person's gender-related appearance and behavior, whether or not stereotypically associated with the employee's assigned sex at birth (CA Gov. Code Sec. 12926(r)).
"Employer" defined. Under FEHA, there is a rebuttable presumption that an "employer" is the person or entity identified as the employer on the employee's federal Form W-2 (Wage and Tax Statement). However, the term "employer" does not include a religious association or corporation not organized for profit. Employees located within or outside of California are counted for purposes of calculating the five-employee threshold under FEHA.
Bona fide occupational qualification (BFOQ) exception. Differences in treatment are permissible where sex or gender is a BFOQ necessary to the safe and efficient performance of the job in question. Thus, preemployment inquiries or application forms ...