Military and Veteran Status Discrimination in California — FEHA and USERRA Protections

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Last updated: June 2026 — reflects military and veteran status protections under Government Code § 12940 as added by AB 556 (2013) and the federal Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301–4335, and current California Civil Rights Department enforcement guidance.

California added "military and veteran status" to the Fair Employment and Housing Act in 2013 through AB 556, making it an unlawful employment practice for California employers to discriminate against employees or applicants because of their current or prior military service, their veteran status, or their obligations to the National Guard or Reserve components of the armed forces.

That state protection operates alongside — and in several respects beyond — the federal Uniformed Services Employment and Reemployment Rights Act, which independently prohibits discrimination and provides reinstatement rights for service members returning from deployment.

Together, these two frameworks create overlapping protections that cover the full arc of a service member's or veteran's employment relationship: hiring, promotion, compensation, leave for military duty, reinstatement upon return, and protection from retaliation for asserting these rights.

What "Military and Veteran Status" Covers Under FEHA

Government Code § 12940 prohibits discrimination based on military and veteran status in all terms and conditions of employment for employers of five or more employees. The protection covers:

Current service members — employees who are active duty, in the National Guard, or in any Reserve component of the United States Armed Forces. Adverse action based on the demands of military service — including scheduling conflicts, deployment obligations, or the fact of military membership itself — violates FEHA.

Veterans — former members of any branch of the United States Armed Forces, the National Guard, or the Reserves. An employer who refuses to hire a qualified veteran, passes a veteran over for promotion, or terminates a veteran because of their service history violates FEHA regardless of how the decision is framed.

Guard and Reserve members — employees whose part-time military obligations create scheduling or availability demands. An employer who penalizes a Guard member for weekend drills or a Reservist for annual training periods is engaging in military status discrimination under both FEHA and USERRA.

Applicants — the protection applies at the hiring stage. Asking about military service for the purpose of screening out candidates — as opposed to awarding a permissible veterans' preference — is an unlawful inquiry under FEHA.

The FEHA Framework — How a California Military Discrimination Claim Works

Military and veteran status discrimination claims under FEHA follow the same analytical framework as other protected class claims. Under the substantial motivating factor standard established in Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, the plaintiff must show that military or veteran status was a substantial motivating reason for the adverse employment action — not the sole reason, but a reason that genuinely and materially influenced the decision.

The employer then has the opportunity to articulate a legitimate non-discriminatory reason for the action. The burden returns to the plaintiff to show that reason is pretextual — inconsistently applied, contradicted by the employer's own documents, or not the real basis for the decision.

FEHA military discrimination claims must be filed with the California Civil Rights Department within three years of the discriminatory act under Government Code § 12960. The CRD will issue a right-to-sue notice, after which the employee has one year to file a civil lawsuit in superior court. Successful FEHA claims recover back pay, front pay, emotional distress damages with no statutory cap, punitive damages under Civil Code § 3294 in cases involving malice or oppression, and attorney fees under Government Code § 12965.

USERRA — The Federal Parallel Framework

The Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301–4335, applies to all employers regardless of size — including employers with fewer than five employees who fall outside FEHA's coverage threshold. USERRA provides three core protections that operate alongside FEHA:

Anti-discrimination. USERRA prohibits denial of initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on membership or obligation in the uniformed services. This protection applies to applicants and current employees regardless of whether the service is past, present, or anticipated.

Reemployment rights. An employee who leaves for military service of five years or less is entitled to reemployment in the same position — or a comparable one — upon return, provided the employee provides advance notice of departure and returns within the applicable reporting deadline. The employer must reemploy the returning service member without loss of seniority, pay, or benefits that would have accrued during the absence.

Benefit continuation. Employees on military leave are entitled to elect continuation of employer-sponsored health coverage for up to 24 months during their absence. Employers cannot terminate coverage simply because the employee is on military leave.

USERRA claims are enforced through the U.S. Department of Labor's Veterans' Employment and Training Service (VETS) or through a civil action in federal or state court. There is no administrative exhaustion requirement for USERRA civil suits — an employee can file directly in court without first going through VETS.

Where FEHA Extends Beyond USERRA

California's FEHA protections are broader than USERRA in two important respects.

Protection area	FEHA (California)	USERRA (Federal)
Employer size	5+ employees for discrimination; all employers for harassment	All employers regardless of size
Who is covered	Current service members, veterans, Guard, Reserves	Current and former uniformed service members
Anti-discrimination	Yes — under Gov. Code § 12940(a)	Yes — 38 U.S.C. § 4303
Reemployment rights	Limited — no standalone reemployment statute	Yes — up to 5 years of service, timely return required
Health coverage continuation	CFRA/PDL leave protections apply separately	Up to 24 months continuation during service
Back pay	Yes	Yes
Front pay	Yes	No
Emotional distress damages	Yes — uncapped	No
Punitive damages	Yes — Civil Code § 3294	No
Liquidated damages (willful)	No	Yes — equal to lost wages and benefits
Attorney fees	Yes — Gov. Code § 12965	Yes
Filing deadline	3 years to CRD under Gov. Code § 12960	4 years federal SOL (2 years non-willful)
Administrative exhaustion	Required — CRD complaint before civil suit	Not required — can file directly in court

Employer size. USERRA applies to all employers regardless of size. FEHA's discrimination prohibition applies to employers of five or more. For employers with fewer than five employees, USERRA is the operative framework — FEHA's anti-discrimination provision does not reach them, though FEHA's harassment prohibition applies to all workplaces regardless of size.

Damages. USERRA limits remedies to lost wages and benefits, liquidated damages equal to the lost wages and benefits in cases of willful violations, and attorney fees. FEHA adds emotional distress damages with no statutory cap and punitive damages under Civil Code § 3294 — remedies unavailable under USERRA. For claims that support both FEHA and USERRA theories, the FEHA remedies are typically more favorable.

Veterans' preference interaction. California law permits employers to adopt voluntary veterans' preference employment policies under the Voluntary Veterans' Preference Employment Policy Act. Such policies may lawfully favor veterans in hiring decisions. However, a veterans' preference policy cannot be used as a pretext for discrimination against any FEHA-protected class — including using veteran status as a cover for age, race, or sex discrimination.

Common Fact Patterns in Military and Veteran Status Cases

Deployment-related termination. An employee notifies their employer of an upcoming deployment and is terminated, demoted, or replaced before their departure date. Both FEHA and USERRA prohibit adverse action based on anticipated military service — the employee does not need to have already departed for the protection to apply.

Failure to reemploy. An employee returns from a deployment of less than five years, provides timely notice, and is told their position has been "restructured" or "eliminated" — while the same functions are being performed by someone else. USERRA's reemployment right is robust: the employer must demonstrate that circumstances have so changed as to make reemployment impossible or unreasonable, a high bar that most restructuring arguments do not clear.

Pension and benefit gaps. An employee returns from deployment and discovers that pension service credits, seniority, or benefit accruals were not maintained during the absence. USERRA requires that returning service members be treated as if they had been continuously employed during the absence for purposes of seniority-based rights and benefits.

Hostile work environment based on military status. Coworker or supervisory comments expressing resentment of a service member's scheduling obligations, derision of military service, or stereotyping of veterans (including assumptions about PTSD, physical limitations, or readiness for civilian work) can constitute harassment under FEHA's harassment provision, which applies to all workplaces regardless of employer size and does not require a tangible employment action.

Anticipatory discrimination. An applicant discloses National Guard membership during an interview and is not selected despite being the most qualified candidate. Discriminatory hiring based on anticipated future military obligations is prohibited by both FEHA and USERRA.

What to Do If You Believe You Have Experienced Military Status Discrimination

Document the timeline. The connection between your military disclosure, departure, or return and the adverse employment action is the foundation of your claim. Record dates, what was said, who was present, and exactly what changed in your employment after the triggering event.

File within the applicable deadline. FEHA claims must be filed with the California Civil Rights Department within three years. USERRA civil suits have no mandatory exhaustion requirement but a four-year federal statute of limitations applies for willful violations. For non-willful violations the limitations period is two years under 28 U.S.C. § 1658.

Identify which framework is stronger. If your employer has fewer than five employees, USERRA is your primary federal remedy and FEHA's harassment provision your primary state remedy. If your employer has five or more employees, FEHA's broader damages make it the preferred framework for discrimination claims, with USERRA as a parallel theory for reemployment and benefit claims.

For cases where the military status discrimination intersected with termination, see our California Wrongful Termination guide. For cases involving retaliation after you asserted your rights, see our California Workplace Retaliation guide. For the full discrimination framework including the proof standards that apply to all FEHA claims, see our California Workplace Discrimination guide.

Frequently Asked Questions

Does FEHA protect National Guard members and Reservists, not just active duty veterans?

Yes. FEHA's military and veteran status protection covers current and former members of all components of the United States Armed Forces — active duty, National Guard, and all Reserve branches. An employer who schedules a Guard member out of a project because of drill weekends, or who passes a Reservist over for promotion because of annual training obligations, is engaging in military status discrimination under FEHA.

My employer replaced me while I was deployed. Do I have a claim?

Potentially under both USERRA and FEHA. USERRA's reemployment right requires that you be reinstated to your prior position — or a comparable one — upon return from a deployment of five years or less, provided you give advance notice and return within the applicable reporting period. If your employer claims the position was eliminated, it must demonstrate that reemployment is impossible or unreasonable — a high standard that most restructuring arguments do not meet.

Can my employer ask me about my military service during an interview?

An employer may inquire about military service for the purpose of awarding a voluntary veterans' preference. An employer may not use military status as a basis to screen out candidates, deny a position, or make assumptions about availability, fitness, or reliability. If an interview question about military service is followed by rejection of an otherwise qualified candidate, that sequence supports a discrimination claim.

What if my coworkers make comments about my military service or veteran status?Harassment based on military or veteran status — including derogatory comments, stereotyping of veterans, or resentment expressed about a service member's scheduling obligations — can constitute a hostile work environment under FEHA. FEHA's harassment prohibition applies to all California workplaces regardless of employer size, meaning even small employers not covered by FEHA's discrimination provision are covered by its harassment prohibition.

Does USERRA apply if my employer has fewer than five employees?

Yes. USERRA applies to all employers regardless of size with no minimum employee threshold. FEHA's discrimination prohibition requires five or more employees, but USERRA fills the gap for smaller employers and in some cases provides stronger reemployment rights than FEHA alone.

DISCLOSURE: 1000Attorneys.com is a California State Bar Certified Lawyer Referral and Information Service, LRIS #0128. This article is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this content. For advice specific to your situation, consult a licensed California employment attorney.