Discrimination, Harassment, and Retaliation in California — What Each One Is and How They Differ

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Last updated: July 2026 — Reflects Government Code § 12940, Government Code § 12923 (harassment definition), Labor Code § 1102.5, and California Civil Rights Department enforcement guidance current as of January 1, 2026. 1000Attorneys.com is a California State Bar Certified Lawyer Referral Service (LRIS #0128), American Bar Association Authorized Program, and LawHelpCA Verified Resource.

Most employees who contact an employment attorney have experienced something wrong at work — but they are often unsure whether what happened to them is discrimination, harassment, retaliation, or some combination of all three.

The uncertainty is understandable: the three concepts are related, frequently overlap in the same case, and are governed by some of the same statutes. But they are legally distinct — each requires different proof, involves different employer obligations, and carries different damages implications.

Understanding the difference is practically important because it determines which legal theory or theories apply to your situation, which evidence you need to build, and which pillar article covers the framework you need.

Workplace Discrimination — What It Is

Discrimination under California's Fair Employment and Housing Act, codified at Government Code § 12940, is an adverse employment action taken against an employee because of a protected characteristic.

The protected characteristics under FEHA include: race, color, national origin, ancestry, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, pregnancy, disability, medical condition, age (40 and older), military and veteran status, and genetic information.

The adverse employment action is what makes conduct discrimination rather than mere mistreatment. Adverse actions include termination, demotion, failure to hire or promote, pay reduction, assignment to less desirable duties, and denial of benefits.

A supervisor who dislikes an employee because of their race but never takes any adverse action against them has not committed actionable discrimination under FEHA — the protected characteristic must cause or substantially motivate a tangible employment decision.

The causation standard in California is the substantial motivating factor test established by the California Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. The protected characteristic need only be a real, meaningful contributor to the adverse action — not the sole reason and not even the primary reason.

What discrimination looks like in practice: A 56-year-old senior manager is passed over for a promotion that goes to a 34-year-old with less experience. A pregnant employee is placed on a performance improvement plan the week after she discloses her pregnancy.

A Black engineer is assigned to less visible projects than white peers with equivalent qualifications. In each case, an adverse employment action is connected to a protected characteristic.

For the complete discrimination framework, see our California workplace discrimination guide.

Workplace Harassment — What It Is and How It Differs

Harassment is a specific form of discrimination under FEHA — but it operates through a different mechanism and has different legal requirements. Under Government Code § 12923 and § 12940(j), harassment is conduct based on a protected characteristic that is severe or pervasive enough to create a hostile, intimidating, or offensive work environment that a reasonable person would find abusive.

The critical distinction from discrimination: harassment does not require a tangible adverse employment action. An employee can have a valid harassment claim while still employed, never demoted, never suffering any economic loss — if the workplace conduct based on a protected characteristic meets the severe or pervasive threshold. The harm in harassment is the working environment itself, not a specific employment decision.

The severe or pervasive standard is evaluated on the totality of the circumstances: the frequency of the conduct, its severity, whether it is physically threatening or humiliating versus offensive utterance, and whether it unreasonably interferes with the employee's work performance.

A single severe act — such as a sexual assault, a racial slur during a performance review, or explicit discriminatory statements from a supervisor — can meet the standard without repetition. Pervasive conduct that individually might seem minor — repeated comments about an employee's age, ongoing exclusion from communications based on gender, a sustained pattern of demeaning remarks based on national origin — meets the standard through accumulation.

What harassment looks like in practice: A supervisor makes repeated comments about a female employee's appearance, asks personal questions about her relationships, and stands too close during meetings. A coworker repeatedly uses racial slurs and management is aware but takes no action.

An older employee is subjected to daily "jokes" about retirement and being out of touch. None of these scenarios involves a formal adverse employment action — but each potentially meets the FEHA harassment standard.

For the complete harassment framework, see our California workplace harassment guide.

Retaliation — What It Is and How It Differs from Both

Retaliation under FEHA Government Code § 12940(h) is an adverse employment action taken against an employee because they engaged in a protected activity — not because of who they are, but because of something they did. The distinction is fundamental: discrimination and harassment are based on a protected characteristic; retaliation is based on a protected act.

Protected activities that trigger FEHA retaliation protection include: filing a discrimination or harassment complaint with the employer or the CRD, opposing a FEHA violation, participating in a CRD investigation or proceeding, and requesting a reasonable accommodation for a disability or religious practice.

Whistleblower retaliation under Labor Code § 1102.5 extends similar protection to employees who disclose information about violations of state or federal law to a government agency or an internal supervisor with authority to investigate.

The causation standard for whistleblower retaliation — contributing factor — is lower than the substantial motivating factor standard that applies to FEHA discrimination and retaliation claims.

What retaliation looks like in practice: An employee files an HR complaint about her supervisor's discriminatory treatment and is terminated two weeks later. A warehouse worker reports wage theft to the Labor Commissioner and has his hours cut the following week.

A manager raises concerns about financial irregularities and is reassigned to a marginal role. In each case, a protected act precedes an adverse employment action — and the causal connection between the act and the action is what makes it retaliation.

For the complete retaliation framework, see our California workplace retaliation guide.

How the Three Concepts Overlap — And Why One Situation Can Involve All Three

The practical reality is that discrimination, harassment, and retaliation frequently occur together in the same employment situation — and the most legally significant cases involve all three.

The most common overlap pattern: an employee is subjected to harassment based on a protected characteristic, complains through internal HR channels, and then experiences adverse employment action both because of the protected characteristic (discrimination) and because of the complaint (retaliation).

Three separate legal theories arise from one employment relationship — and each is independently actionable.

Concept	Based On	Key Element	Adverse Action Required?
Discrimination	Protected characteristic (who you are)	Adverse employment action	✅ Yes
Harassment	Protected characteristic (who you are)	Severe or pervasive hostile environment	❌ No
Retaliation	Protected activity (what you did)	Adverse employment action after protected act	✅ Yes

A single wrongful termination can be simultaneously discriminatory (because the employee's age was a substantial motivating factor), harassing (if the termination followed sustained age-based conduct), and retaliatory (if the employee had complained about the age-based treatment before being fired).

In practice, pleading all available theories maximizes both the damages exposure to the employer and the settlement leverage for the employee.

Which Theory Applies to Your Situation — A Practical Guide

If you were treated differently in a tangible employment decision because of who you are: Discrimination. The focus is on the adverse action and its connection to the protected characteristic.

If the workplace environment became hostile, offensive, or abusive based on who you are — without necessarily involving a formal employment action: Harassment. The focus is on the severity or pervasiveness of the conduct and whether it unreasonably affected your ability to work.

If something bad happened at work after you complained, reported, or opposed something: Retaliation. The focus is on what protected activity preceded the adverse action and the causal connection between them.

If all three apply: Plead all three. California law permits simultaneous pursuit of discrimination, harassment, and retaliation claims arising from the same employment relationship — and the mandatory attorney fee provision under Government Code § 12965 makes pursuing all available theories economically viable on contingency.

For an estimate of what a combined claim may be worth, use our California Wrongful Termination Compensation Calculator. For the filing deadline that applies to all three theories, see our guide on California wrongful termination statute of limitations.

Frequently Asked Questions

What is the difference between discrimination and harassment in California?

Discrimination is an adverse employment action — termination, demotion, failure to promote, pay reduction — taken because of a protected characteristic. Harassment is severe or pervasive conduct based on a protected characteristic that creates a hostile work environment, and it does not require a tangible adverse employment action. Both are prohibited under Government Code § 12940, but harassment has a lower employer-size threshold and can be established without any formal employment decision being made.

What is the difference between harassment and retaliation?

Harassment is based on who you are — a protected characteristic such as race, sex, age, or disability. Retaliation is based on what you did — a protected activity such as filing a complaint, opposing discrimination, or disclosing a legal violation. An employee can experience both simultaneously: harassment based on a protected characteristic, and then retaliation when they complain about the harassment.

Can I have a discrimination AND retaliation claim at the same time?

Yes — and most significant California employment cases involve both. The discrimination claim addresses the adverse action connected to the protected characteristic. The retaliation claim addresses any adverse action that followed a complaint or protected activity. Both are independently actionable and independently compensable under FEHA. Many cases also include a harassment claim, making all three theories simultaneously available.

Does harassment have to be sexual to be illegal in California?

No — FEHA prohibits harassment based on any protected characteristic, not just sex. Racial harassment, age-based harassment, disability harassment, national origin harassment, and religious harassment are all actionable under the same severe or pervasive standard as sexual harassment. The protected characteristic at issue determines which FEHA provision applies, but the legal framework is the same.

What is the filing deadline for discrimination, harassment, and retaliation claims in California?

Three years from the most recent act of discrimination, harassment, or retaliation to file a complaint with the California Civil Rights Department under Government Code § 12960. For ongoing harassment, the three-year clock runs from the last act — not the first — which means prolonged harassment situations often have more time than the employee realizes.

Do I need to report discrimination or harassment to HR before filing a CRD complaint?

No — internal reporting to HR is not a legal prerequisite to filing a CRD complaint. However, an internal complaint creates a protected activity record that triggers retaliation protection from the moment it is made — which is often strategically important regardless of what HR does with the complaint. An employer who takes adverse action after an internal complaint has provided evidence of retaliation that would not exist without the complaint.

DISCLOSURE This article is published by 1000Attorneys.com, a California State Bar Certified Lawyer Referral and Information Service, LRIS Certificate No. 0128, accredited by the American Bar Association and established in 2005. The information on this page is for general educational purposes only and is not legal advice. 1000Attorneys.com is not a law firm and does not provide legal representation. For legal advice about your specific situation, consult a qualified California attorney.