Is Your Employer Covered Under Anti-Discrimination Laws?

It is widely known that discrimination in the workplace or connected to your employment in any way is illegal. What many people do not realize, unfortunately, is that not all employers are covered by either federal or California state anti-discrimination laws. The reasons why these discrimination laws do not apply to all employers are somewhat complex, but it is important to recognize that you may not have a legal claim even if you were clearly discriminated against. If you believe your employer has engaged in discrimination, an experienced employment discrimination attorney can review your case and determine whether you have a claim. 

Who Is Protected Under Anti-Discrimination Employment Laws?

Both federal and state anti-discrimination laws offer protection to people other than current employees. Federal anti-discrimination employment laws are limited to applicants, employees, and former employees. These laws protect both full-time and part-time employees as well as seasonal and temporary employees. 

California law (the California Fair Employment and Housing Act) offers protection to a broader range of workers. In addition to current employees, former employees, and applicants, California law also protects the following workers:

• Unpaid interns
• Volunteers
• Independent contractors

As a result, you should not immediately assume that you do not have a claim if you are not paid by your employer or are an independent contractor. While you may not have a claim under federal law, you can pursue legal action under California law. 

Different Laws, Different Thresholds

Once you have determined whether you are protected under federal or state anti-discrimination laws, the next step is to determine whether your employer is covered by these laws. There are different thresholds under both federal and state employment laws: 

• Federal anti-discrimination laws apply to employers with 15 or more employees (note: the threshold is 20 or more employees in age discrimination cases)
• California anti-discrimination laws apply to employers with 5 or more employees

It may seem odd that anti-discrimination laws apply only to employers of a certain size – discrimination is wrong, regardless of the size of your employer. One reason that is offered for these is that it protects small businesses from burdensome legal expenses in defending themselves against discrimination claims. Whether you agree with this reasoning or not, the unfortunate reality is that you do not have a claim under either federal law or California law if your employer does not have at least 5 employees on its payroll. 

What About Harassment?

Harassment is pervasive and repeated conduct that is offensive, abusive, hostile, or intimidating and is based on one or more protected characteristics such as race or gender. Discrimination and harassment often go hand in hand. Discrimination often takes the form of harassment or someone who is discriminated against in the workplace may also face harassment. 

Interestingly, all employers, regardless of the number of employees, can be held liable for harassment. As a result, you may be able to pursue a claim for harassment even though your employer is not covered under California’s anti-discrimination laws. 

Unfortunately, the same thresholds apply under federal law in harassment cases – your employer must have at least 15 employees (or 20 in harassment cases based on age) in order to be held liable. This typically is not an issue since employees will have a claim under California law. 

Counting Employees

In some cases, there can be a question as to who counts as an employee and who does not in determining whether the employer is subject to federal and state anti-discrimination laws. For example, does an employee who works only part-time during the holidays count as an employee for discrimination purposes? 

For determining whether an employer can be held liable for discrimination, the courts follow the “payroll” rule:  

• An employer will be subject to state and federal discrimination laws if they have the required number of employees on their payroll for each working day in each of 20 or more calendar weeks of the current or preceding calendar year. 

Under this rule, the court will look at how many total employees are on the payroll for at least 20 weeks of the year. As a result, it is irrelevant how long a single seasonal employee worked if the employer had 5 or more employees for at least 20 weeks out of the year. An example may help illustrate how this rule works. 

• Betsy and her sister own and operate a novelty t-shirt shop down on the boardwalk. June, July, and August are their busiest months. During those 12 weeks, they employ 4 part-time employees to help with the store. Under the payroll rule, they would not be subject to federal or California state discrimination laws. This is because the four part-time employees work only during a 12-week period. 
• Speedy Moving Company specializes in helping people with apartments and condos with in-town moves. The company is really just three friends who graduated from high school together, but they will hire extra labor on an as-needed basis – they usually hire college students who are looking to make some extra money on nights and weekends. As it turns out, they usually have 3 or 4 extra laborers for a little more than half of the year. Speedy Moving Company would be subject to California discrimination laws because they have more than 5 employees on their payroll for at least 20 weeks of the year. 

This can obviously be a complex analysis, and unfortunately, unscrupulous employers will look for ways to limit the number of employees on their payrolls for any number of reasons. Rather than try to figure out whether your employer is covered, we recommend that you contact an employment discrimination lawyer as soon as possible. 

Call Attorneys for Employees Today  

If you believe you have been discriminated against or harassed, we can help you hold your employer accountable and find a way forward.  Schedule a consultation with an experienced employment discrimination attorney from our firm today.