Practice Guide · Employment Discrimination

FEHA Discrimination & the McDonnell Douglas Test

A practitioner’s synthesis of disparate-treatment discrimination under California’s Fair Employment and Housing Act — the protected characteristics, the three-stage McDonnell Douglas burden-shifting framework as Guz applies it at summary judgment, the “substantial motivating reason” causation standard from Harris, how pretext is proved, what counts as an adverse action, and the administrative prerequisites. A research starting point you can cite from.

Practice Guide
Discrimination
FEHA
Gov. Code § 12940(a)
McDonnell Douglas
Authorities current to June 2026

By Jonathan J. Delshad, Editor-in-Chief · Last reviewed June 22, 2026

In brief. The Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to discriminate against an employee because of a protected characteristic. Most disparate-treatment cases are litigated through the three-stage McDonnell Douglas burden-shifting framework, which California adopted in Guz v. Bechtel National, Inc. The plaintiff establishes a prima facie case; the employer articulates a legitimate, nondiscriminatory reason; and the plaintiff then shows that reason is a pretext for discrimination. At trial, the jury asks whether a protected characteristic was a substantial motivating reason for the adverse action under Harris v. City of Santa Monica. This guide collects the governing authority.

1. What the statute prohibits

FEHA makes it an unlawful employment practice “[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person … or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) The Act applies to employers “regularly employing five or more persons” (id., § 12926, subd. (d)), and “age” is protected for persons 40 and older (id., subd. (b)).

This guide addresses intentional disparate treatment — an adverse action taken because of the protected trait. (Disparate-impact claims, which challenge facially neutral practices that fall more harshly on a protected group, and failure-to-accommodate claims follow different frameworks; the disability-accommodation guide treats the latter.) Disparate-treatment claims may be proved by direct evidence of discriminatory intent — rare — or, far more commonly, by circumstantial evidence analyzed through the burden-shifting framework below.

2. The McDonnell Douglas framework

California uses the three-stage burden-shifting test the United States Supreme Court announced in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–805, for disparate-treatment claims tried on circumstantial evidence. As the California Supreme Court confirmed, “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination … based on a theory of disparate treatment.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) The three stages are:

  1. Prima facie case. The plaintiff must carry “the initial burden … of establishing a prima facie case” of discrimination — generally, that the plaintiff was a member of a protected class, was qualified and performing satisfactorily, suffered an adverse action, and that some circumstance suggests a discriminatory motive. (McDonnell Douglas, supra, 411 U.S. at p. 802.) The prima facie burden is “not onerous.”
  2. Legitimate reason. “The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for the action. (Ibid.) This is a burden of production only; the burden of persuasion remains with the plaintiff throughout. (See Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248; St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, both adopted in Guz.)
  3. Pretext. The plaintiff must then be “afforded a fair opportunity to show that [the employer’s] stated reason … was in fact pretext.” (McDonnell Douglas, supra, 411 U.S. at p. 804.) Disbelief of the employer’s explanation, together with the prima facie case, can permit (but does not compel) the trier of fact to infer discrimination. (See Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133.)

Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317

Summary-judgment standard

An employer is entitled to summary judgment if, considering its innocent explanation, “any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.” (24 Cal.4th at p. 362.)

Read the Review’s full case analysis of Guz v. Bechtel National →

3. How the burdens work at summary judgment

The order of proof is realigned when an employer moves for summary judgment. The employer may prevail either by showing the plaintiff cannot establish an element of the prima facie case or by producing admissible evidence of a legitimate, nondiscriminatory reason for its action; the burden then shifts to the plaintiff to produce “substantial responsive evidence” that the stated reason was untrue or pretextual, or other evidence of discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355–356, 361.) Summary judgment for the employer is proper where, “considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Id. at p. 361.) Conversely, the plaintiff defeats the motion by marshaling evidence from which a reasonable factfinder could both disbelieve the employer’s stated reason and find that discrimination was the real reason. In practice this is the decisive battleground, and the plaintiff’s ability to expose weaknesses, inconsistencies, and comparator disparities in the employer’s explanation usually determines whether the case reaches a jury.

4. What counts as an adverse employment action

FEHA reaches discrimination in the “terms, conditions, or privileges of employment.” California measures an adverse employment action by whether the employer’s conduct “materially and adversely affected the terms, conditions, or privileges of employment,” assessed on the totality of the circumstances. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056.) Hiring, firing, demotion, material changes in pay, and denial of promotion plainly qualify; a series of lesser actions may qualify when considered as a whole. Practitioners should note a divergence with federal law: in Muldrow v. City of St. Louis (2024) 601 U.S. 346, the United States Supreme Court held that a Title VII transfer plaintiff need show only some harm, not “significant” harm — a more employee-favorable threshold than some prior federal authority. Where a claim proceeds under both FEHA and Title VII, frame the adverse-action element under each statute’s own standard.

5. The causation standard at trial: “substantial motivating reason”

Although McDonnell Douglas structures the pretrial sorting, it does not supply the jury’s causation standard. In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the Court held that a FEHA plaintiff must show the protected characteristic was a “substantial motivating reason” — not merely “a motivating reason” — for the adverse action. (Id. at p. 232.) The standard ensures liability attaches to discrimination that actually drove the decision, while screening out cases in which the protected trait played only a trivial or tangential role.

The mixed-motive / same-decision defense. Harris also defined the consequences of a mixed-motive case. “[W]hen a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement.” (Id. at p. 211.) The employer “does not escape liability,” however; the plaintiff may still obtain declaratory or injunctive relief and may be eligible for reasonable attorney’s fees and costs. (Ibid.) The same-decision showing is an affirmative defense the employer must plead and prove — not an element the plaintiff must disprove.

6. Proving pretext and discriminatory motive

Pretext is ordinarily proved circumstantially — through inconsistencies or shifting explanations, deviations from policy, more-favorable treatment of comparators outside the protected class, statistical disparities, suspicious timing, and discriminatory remarks by decisionmakers. California courts do not apply a rigid “stray remarks” doctrine that categorically excludes a decisionmaker’s discriminatory statements; the California Supreme Court rejected that approach in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 545, holding that the weight of ambiguous or discriminatory remarks is generally for the jury. So-called “me-too” evidence — testimony from other employees who experienced similar discrimination by the same decisionmaker — can likewise be probative of motive. Because the pretext stage is where most FEHA cases are won or lost, counsel should develop this evidence systematically in discovery: personnel files of comparators, the decisionmaker’s history, the timing and sequence of events, and every iteration of the employer’s stated reason.

7. Who is liable

The employer is the principal defendant. Individual supervisors generally are not personally liable for discrimination, as distinct from harassment. (Reno v. Baird (1998) 18 Cal.4th 640, 663 [“individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts”].) California has, however, extended direct FEHA liability to an employer’s business-entity agents in appropriate circumstances: in Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, the Court held that an employer’s business-entity agent that has at least five employees and carries out FEHA-regulated activities on the employer’s behalf can be held directly liable. That holding can expand the universe of solvent defendants where, for example, a third-party screening, background-check, or administration vendor carried out the challenged practice.

8. Procedure: exhaustion, right-to-sue, fees

Administrative exhaustion. A FEHA plaintiff must first file an administrative complaint with the Civil Rights Department (CRD, formerly the DFEH) and obtain a right-to-sue notice. The complaint “shall not be filed after the expiration of three years from the date upon which the unlawful practice … occurred.” (Gov. Code, § 12960, subd. (e)(5).) The three-year period reflects AB 9 (2019), which extended the prior one-year deadline.

Time to sue. After a right-to-sue notice, the claimant “may bring a civil action … within one year from the date of that notice.” (Gov. Code, § 12965, subd. (c)(1)(D).) Fees. The court “in its discretion, may award to the prevailing party … reasonable attorney’s fees and costs,” with a prevailing defendant entitled to fees only on a showing that the action was frivolous, unreasonable, or groundless. (Id., subd. (c)(6).) (These provisions were renumbered effective 2022; older authorities cite former subdivision (b).)

9. Practice pointers

  • Build the pretext record in discovery. Shifting reasons, comparator evidence, suspicious timing, and deviations from policy are the currency of the third stage; Reid keeps decisionmaker remarks in the case, and “me-too” evidence can corroborate motive.
  • Frame causation as “substantial motivating reason.” Conform jury instructions to Harris (CACI Nos. 2500, 2507), and resist any “but for” or “sole reason” framing.
  • Anticipate the same-decision defense. Even if the employer carries it, liability and fee-shifting may survive; plead and prove entitlement to declaratory or injunctive relief.
  • Plead the adverse action precisely. Under FEHA, frame materiality under Yanowitz; where Title VII is also pleaded, invoke Muldrow’s lower threshold.
  • Consider entity-agent defendants. After Raines, a vendor that executed the challenged practice may be directly liable.
  • Calendar the deadlines. Three years to file with the CRD; one year to sue after the right-to-sue notice.

Frequently asked questions

What is the McDonnell Douglas test?

It is the three-step framework California courts use to prove job discrimination with circumstantial evidence. First the employee shows a prima facie case; then the employer gives a legitimate, non-discriminatory reason; then the employee shows that reason is a pretext hiding discrimination.

What do I ultimately have to prove in a FEHA discrimination case?

That a protected trait — such as race, sex, age, disability, or national origin — was a “substantial motivating reason” for the adverse action, not merely present somewhere in the employer’s thinking. This standard comes from Harris v. City of Santa Monica (2013).

How many employees must a company have to be covered by FEHA?

Five or more. California’s Fair Employment and Housing Act applies to employers that regularly employ five or more people — a far lower threshold than the federal Title VII minimum of fifteen.

How long do I have to file a FEHA discrimination claim in California?

You generally have three years from the discriminatory act to file a complaint with the Civil Rights Department (formerly the DFEH), and then one year from your right-to-sue notice to file a lawsuit.

Is it enough to show my employer’s stated reason was false?

Not automatically, but it can be decisive. Disbelief of the employer’s explanation does not by itself require a verdict for the employee (St. Mary’s Honor Center v. Hicks (1993)), but a prima facie case plus evidence that the reason is false can be enough for a jury to find discrimination (Reeves v. Sanderson Plumbing Products (2000)).

Key authorities

Browse related decisions in the case index →

See also: Ames v. Ohio Department of Youth Services