Marital Status Discrimination in California: FEHA Protections, What Employers Cannot Do, and How to File a Claim
- JC Serrano | Founder - LRIS # 0128
- Sep 2, 2024
- 8 min read
HOME › CALIFORNIA EMPLOYMENT LAW › WORKPLACE DISCRIMINATION › MARITAL STATUS DISCRIMINATION CALIFORNIA
Last updated: June 2026 — Reflects Government Code § 12940 and Government Code § 12926 as amended, and California Civil Rights Department enforcement guidance current as of January 1, 2026.
California is one of the few states in the country that explicitly prohibits employment discrimination based on marital status.
Unlike federal law — which does not include marital status as a protected characteristic under Title VII, the ADA, or the ADEA — California's Fair Employment and Housing Act treats marital status identically to race, religion, sex, and disability: employers cannot use it as a basis for any employment decision, from hiring through termination.
When they do, the employee has a claim under FEHA that can support both discrimination and wrongful termination theories.
This article explains who is protected, what conduct is prohibited, how marital status discrimination most commonly manifests, and what California employees must do to enforce their rights.
What California Law Prohibits
Government Code § 12940(a) makes it an unlawful employment practice for any employer with five or more employees to refuse to hire, discharge, or discriminate against any person in the terms, conditions, or privileges of employment because of marital status. The prohibition extends to every stage and condition of the employment relationship — not just to termination.
Government Code § 12926(k) defines "marital status" broadly under FEHA as an individual's state of marriage, non-marriage, divorce, separation, dissolution of marriage, widowhood, annulment, or other marital state.
This definition covers every legal relationship status an employee might hold — including domestic partnerships recognized under California law — and expressly includes the absence of any marital status, meaning a single employee is equally protected against discrimination for being unmarried as a married employee is for being married.
FEHA's marital status prohibition applies to:
Hiring decisions and job offers
Compensation, including salary, bonuses, and benefits
Promotion and advancement opportunities
Job assignments, transfer, and scheduling
Performance evaluations
Discipline and adverse employment actions
Termination and constructive discharge
Any other term, condition, or privilege of employment
The Employer Threshold and Covered Entities
FEHA's marital status protections apply to any employer in California with five or more employees. This threshold is lower than federal employment discrimination statutes (which generally require 15 employees) and reflects California's intent to extend workplace protections as broadly as possible.
Employment agencies and labor organizations are separately covered under Government Code § 12940(b) and (c), respectively, and supervisors who actively participate in discriminatory conduct can face individual liability under California law.
How Marital Status Discrimination Manifests in California Workplaces
Marital status discrimination rarely announces itself. It operates through assumptions — about availability, reliability, financial need, family obligations, and professional commitment — that employers translate into employment decisions without recognizing or acknowledging the discriminatory basis. The following table reflects the most common patterns California courts and the CRD have encountered.
Scenario | Discriminatory Assumption | Affected Decision |
Single employee assigned all overtime and travel | "Single people have no family obligations" | Scheduling, working conditions |
Married woman passed over for promotion | "She will prioritize family over career" | Advancement |
Divorced employee excluded from client-facing roles | "Instability in personal life signals unreliability" | Job assignment |
Widowed employee offered reduced compensation | "They need less income now" | Pay |
Married employee denied transfer | "Their spouse is employed here, conflict of interest" | Transfer/mobility |
Single employee terminated in RIF | "Married employees need jobs more" | Termination |
Domestic partner benefits excluded | "Only traditional marriages count" | Benefits |
Each of these scenarios involves a facially neutral employment rationale that, upon examination, rests on an assumption about marital status.
California courts apply the McDonnell Douglas burden-shifting framework to marital status discrimination claims under FEHA: the employee establishes a prima facie case, the employer articulates a legitimate non-discriminatory reason, and the employee demonstrates that the stated reason is pretextual and that marital status was a substantial motivating factor in the decision.
The Nepotism Exception: Spouses in the Same Workplace
One area where marital status intersects with legitimate employer interests involves spouses or domestic partners employed by the same company.
California courts have recognized that employers may adopt and enforce reasonable no-spouse or no-domestic-partner policies — sometimes called anti-nepotism policies — when they are applied consistently and are genuinely aimed at avoiding conflicts of interest in supervisory or financial relationships, rather than targeting one spouse for adverse treatment.
The key distinction is between a facially neutral policy applied consistently to both spouses (potentially permissible) and a targeted adverse action against one spouse that the employer characterizes as policy enforcement (potentially discriminatory).
When an employer terminates one spouse following a coworker marriage while retaining the other, the selection of which spouse to terminate can itself give rise to a sex or marital status discrimination claim if the selection reflects an assumption about whose career matters more.
Marital Status and Wrongful Termination
When a California employee is terminated because of marital status, the termination constitutes both a FEHA violation and a California wrongful termination claim. The two theories are not mutually exclusive — a marital status-based termination typically supports a FEHA discrimination claim under Government Code § 12940(a) and may also support a Tameny public policy tort claim where the termination violates a fundamental public policy embodied in FEHA itself.
The practical effect of pursuing both theories is significant: FEHA claims allow recovery of emotional distress damages, attorney fees under Government Code § 12965, and punitive damages where the employer acted with malice, oppression, or fraud. Tameny tort claims provide a parallel two-year filing window in Superior Court that does not require exhaustion of the CRD administrative process first.
Marital status discrimination also frequently appears alongside other FEHA-protected characteristics. A married woman passed over for promotion may have a sex discrimination claim alongside the marital status claim.
A divorced employee subjected to harassment about their personal life may have both a marital status discrimination claim and a hostile work environment claim. Employees facing intersecting discrimination theories should see our California workplace discrimination guide for the full framework governing multi-theory FEHA claims.
Marital Status and Workplace Harassment
FEHA's prohibition on harassment based on marital status operates independently of its prohibition on discrimination. Government Code § 12940(j) prohibits harassment of an employee based on any FEHA-protected characteristic, including marital status.
A hostile work environment claim based on marital status requires the same elements as any other FEHA harassment claim: unwelcome conduct based on marital status, conduct severe or pervasive enough to alter the conditions of employment and create an abusive working environment, and employer liability either through supervisory conduct or through the employer's failure to take appropriate corrective action upon notice.
Persistent comments about an employee's divorce, intrusive questions about a single employee's personal life, or a pattern of demeaning remarks about domestic partnerships can, cumulatively, constitute actionable harassment under FEHA even when no single incident rises to the level of severity required to trigger liability on its own — this is the continuing violations doctrine the California Supreme Court recognized in harassment cases.
See our California workplace harassment guide for the full framework on employer liability, investigation obligations, and filing procedures.
Benefits Discrimination Based on Marital Status
FEHA's prohibition on marital status discrimination extends explicitly to employee benefits. An employer that provides health insurance, retirement contributions, life insurance, or other benefits to married employees but excludes similarly situated single employees, or that refuses to extend benefits to domestic partners when it extends them to spouses, may be engaged in marital status discrimination even where the employment itself is not otherwise affected.
California's domestic partnership law, codified at Family Code § 297 et seq., grants registered domestic partners substantially the same rights as married spouses under state law.
Employer benefit plans that recognize marriage but categorically exclude domestic partnerships may violate both FEHA's marital-status prohibition and California's domestic-partnership protections, depending on how the plan is structured and funded.
How to File a Marital Status Discrimination Claim in California
FEHA claims — including marital status discrimination — must be filed with the California Civil Rights Department before a civil lawsuit can be filed in Superior Court. The administrative prerequisite is mandatory: filing directly in court without a CRD right-to-sue notice results in dismissal of the FEHA claim.
The filing deadline under Government Code § 12960 is three years from the date of the unlawful employment practice — the date the discriminatory decision was made or communicated, or in the case of termination, the date employment actually ended under the Romano accrual rule. See our guide on the CRD right-to-sue notice for the complete administrative filing process and what happens after the notice is issued.
Once the CRD issues a right-to-sue notice, the employee has one year to file a civil lawsuit in Superior Court. In that lawsuit, the employee can seek back pay, front pay, emotional distress damages, punitive damages where the employer acted with malice or fraud, and attorney fees under Government Code § 12965 — the fee-shifting provision that makes FEHA claims economically viable regardless of the damages amount.
For the complete wrongful termination proof framework applicable when marital status discrimination results in a firing, see our California wrongful termination guide. For retaliation claims where the employer takes adverse action after the employee complains about marital status discrimination, see our California workplace retaliation guide.
Frequently Asked Questions
Is marital status discrimination illegal in California?
Yes. Government Code § 12940(a) explicitly prohibits employment discrimination based on marital status for any employer with five or more employees. This protection covers all employment decisions — hiring, pay, promotion, assignment, discipline, and termination. California is one of a minority of states with this protection; it does not exist under federal employment discrimination law.
Does FEHA protect domestic partners from marital status discrimination?
Yes. Government Code § 12926(k) defines marital status broadly to include all forms of legal relationship status. California-registered domestic partnerships receive the same FEHA marital status protections as legal marriages, and employers who extend benefits or favorable treatment to married employees must extend equivalent treatment to domestic partners in comparable circumstances.
Can my employer have a policy against spouses working together?
Potentially yes, if the policy is applied consistently and serves a legitimate conflict-of-interest purpose. California courts have recognized limited anti-nepotism policies as permissible when they apply evenhandedly to both spouses and are genuinely aimed at avoiding supervisory conflicts rather than targeting one employee for adverse treatment. However, a policy applied selectively — or used to justify terminating one spouse based on assumptions about whose career is more dispensable — can still constitute marital status or sex discrimination depending on how it is implemented.
What if I was harassed at work because of my marital status?
FEHA's harassment prohibition under Government Code § 12940(j) covers marital status-based harassment independently of discrimination. Persistent unwelcome comments about your divorce, single status, or domestic partnership that are severe or pervasive enough to alter your working conditions can constitute a hostile work environment claim. Report the conduct to HR in writing, document each incident, and file with the CRD within three years of the most recent harassing act.
How long do I have to file a marital status discrimination claim?
Three years from the date of the discriminatory act under Government Code § 12960. For terminations, the clock runs from your last actual day of employment. After filing with the CRD and receiving a right-to-sue notice, you have one year to file a civil lawsuit in Superior Court. Missing either deadline extinguishes the claim entirely.
What damages can I recover for marital status discrimination in California?
A successful FEHA marital status discrimination claim can recover back pay from the date of the discriminatory act through judgment, front pay for future lost earnings, emotional distress damages, punitive damages where the employer acted with malice, oppression, or fraud, and attorney fees under Government Code § 12965. The fee-shifting provision means that represented employees can pursue meritorious claims without paying attorney fees out of pocket if the case is taken on contingency.
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.
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