Government Code § 12940
The core FEHA prohibitions: discrimination, harassment, retaliation, and the duty to accommodate
Section 12940 is the operative heart of the FEHA — it makes discrimination, harassment, retaliation, and the failure to accommodate disabilities unlawful employment practices, each in its own subdivision.
Read the official text at California Legislative Information →
Overview
Government Code section 12940 is the operative core of the California Fair Employment and Housing Act. It defines the principal “unlawful employment practices” — discrimination, retaliation, and harassment on the basis of a protected characteristic — and imposes the affirmative duties to reasonably accommodate disabilities and to engage in a timely, good-faith interactive process. Nearly every FEHA employment claim is, at bottom, a claim under one of its subdivisions.
Because each theory lives in a different subdivision with distinct elements and defenses, precise pleading begins with identifying the correct subdivision. The most frequently litigated are (a) discrimination, (h) retaliation, (j) harassment, and (m) and (n) governing disability.
The principal unlawful practices
Makes it unlawful for an employer to refuse to hire, to discharge, or to discriminate in compensation or in the terms, conditions, or privileges of employment because of a protected characteristic (race, sex, age, disability, religion, national origin, sexual orientation, and others). The characteristic must be a substantial motivating reason for the action.
Prohibits retaliation against a person who has opposed practices forbidden by the FEHA or who has filed a complaint, testified, or assisted in a FEHA proceeding.
Prohibits harassment because of a protected characteristic. It reaches employer liability for supervisor harassment, employer negligence for failing to stop coworker harassment ((j)(1)), and personal liability of the individual harasser ((j)(3)).
Require an employer to make reasonable accommodation for the known disability of an applicant or employee (m), and to engage in a timely, good-faith interactive process to identify an effective accommodation (n). Each is an independent unlawful practice if breached.
Causation: substantial motivating reason, not animus
FEHA discrimination does not require proof that the employer acted out of hatred or hostility. In Harris v. City of Santa Monica, the California Supreme Court held that liability turns on whether the protected characteristic was a substantial motivating reason for the adverse action, and adopted a same-decision framework that limits remedies where the employer would have made the same decision for lawful reasons. The Court of Appeal made the point explicit in the disability context in Wallace v. County of Stanislaus: no showing of animus, animosity, or ill will is required. (See Harris; Wallace.)
Accommodation and the interactive process
Subdivisions (m) and (n) impose affirmative obligations distinct from the bar on disparate treatment. The duty to accommodate is not passive: an employer that knows of a disability must explore suitable available positions and possible accommodations, not merely wait for a request (Prilliman v. United Air Lines), and must participate in the interactive process in good faith once on notice (Soria v. Univision). Failure to accommodate and failure to engage in the interactive process are each separately actionable. (See Prilliman; Soria.)
Harassment under subdivision (j)
Subdivision (j) prohibits harassment because of a protected characteristic and is read in light of the Legislature’s declarations in Government Code section 12923, which confirm that a single serious incident can be actionable and that such claims are rarely fit for summary judgment. A single severe slur can suffice. (See Gov. Code § 12923; Bailey v. S.F. D.A..)
Remedies and procedure
A FEHA plaintiff must exhaust the administrative process — filing a complaint with the Civil Rights Department under Government Code section 12960 and obtaining a right-to-sue notice — before bringing the civil action authorized by Government Code section 12965, which also governs the one-year filing deadline and attorney’s fees. Punitive damages are available under Civil Code section 3294 on a proper showing. (See § 12960; § 12965; Civ. Code § 3294.)
Practice notes
Identify the precise subdivision and plead each theory’s elements separately; discrimination, retaliation, harassment, failure to accommodate, and failure to engage in the interactive process are distinct claims. Frame discrimination causation around the substantial-motivating-reason standard, and document the disability, the employer’s notice, and the interactive-process history in accommodation cases.
Open questions
The boundaries of the same-decision defense, the interaction of the FEHA standard with federal adverse-action thresholds, and the scope of the accommodation duty in evolving work arrangements remain actively litigated. Confirm current authority before relying on any specific proposition.
Related on this site
Practitioner analysis, current as of June 2026 — not the statute itself. Statutes are amended and decisional law evolves; confirm the operative language and current authority at the official source before relying.