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Staying on top of the myriad of protected characteristics under employment discrimination laws

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Although the principles of non-discrimination and equal employment opportunity have been ingrained in law and employment policies for decades, the continual evolution of employment discrimination law calls for employers to regularly review and update their EEO policies, including the ever-expanding list of protected characteristics.

Employment discrimination laws prohibit employers from applying different terms and conditions of employment or otherwise taking adverse action against employees based on any of the characteristics protected under the law. The list of protected characteristics has expanded and evolved over time.

Federal law

The following characteristics are protected under federal laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Equal Pay Act, and the Age Discrimination in Employment Act, among others. These are the more long-standing traditional, or “classic” characteristics:

  • Age
  • Disability
  • National Origin
  • Pregnancy
  • Race
  • Color
  • Religion
  • Sex
  • Genetic Information

California law

The list of protected characteristics under California employment law is more comprehensive (fully encompassing the federal list) and rapidly changing, most of which falls under the Fair Employment and Housing Act (FEHA):

  • Race
  • Color
  • Ancestry
  • National Origin
  • Religion or Creed
  • Age
  • Physical and Mental Disability
  • Sex or Gender
  • Pregnancy (including childbirth, breastfeeding or related medical condition)
  • Sexual Orientation
  • Gender Identity and Expression
  • Medical Condition
  • Genetic Information
  • Marital Status
  • Military and Veteran Status

Under the FEHA, non-discrimination policies for California employers should also prohibit discrimination based on a “perceived” protected characteristic (i.e., where the employee is believed have the protected characteristic even if they in fact do not), and discrimination based on an employee’s "association" or relationship to an individual with a protected characteristic.

Note that all of these protected characteristics likewise apply to laws and policies prohibiting workplace harassment and retaliation. It is recommended that employers have their discrimination, harassment and retaliation policies reviewed regularly by employment counsel.