No, Your Employer Is Not Too Small to Be Covered by California Discrimination Law

September 2026 by Ilya Filmus, Infinity Law Group

QUICK ANSWER

Does California discrimination law apply to smallemployers?

Usually yes. Federal law generally starts at 15employees. California's Fair Employment and Housing Act generally starts atfive, and for harassment it has no size minimum at all.

• FEHA discrimination rules: employers with five or more employees     (Gov. Code § 12926(d))
• FEHA harassment rules: employers with one or more employees (Gov.     Code § 12940(j)(4)(A))
• Title VII and the ADA: 15 employees. The federal age discrimination     law: 20

You looked it up, found the 15-employee rule, countedthe people at your office, and decided you were out of luck.

That happens constantly, and it is usually wrong. Thenumber you found was the federal one. California has its own law, and itreaches much further down.

The federalthreshold is not the California threshold

Most search results on workplace discrimination arewritten for a national audience, so they quote federal law. Title VII of theCivil Rights Act and the Americans with Disabilities Act generally coveremployers with 15 or more employees. The federal Age Discrimination inEmployment Act generally requires 20.

California's Fair Employment and Housing Act, known asFEHA, defines a covered employer as one regularly employing five or morepersons. That is the rule that matters for work performed in California, and itdoes not go away because your employer is under the federal line.

So a nine-person company in Oakland is outside TitleVII and squarely inside FEHA. A worker there who looked only at the federalrule would walk away from a claim that state law fully covers.

Harassment has noemployee minimum at all

This is the part almost nobody knows.

For harassment claims, FEHA uses a different definitionof "employer" than it uses for discrimination. Under Government Code§ 12940(j)(4)(A), for harassment purposes an employer is any person regularlyemploying one or more persons, or regularly receiving the services ofone or more people working under a contract.

A three-person office is not outside the law. Atwo-person office is not either.

Two related points worth knowing:

• The harasser can be personally liable. Under § 12940(j)(3), an employee     who commits harassment is personally liable for it, whether or not the     employer knew about it or did anything.
• You do not have to be a traditional employee. FEHA's harassment protections     extend to people providing services under a contract, and the law also     protects unpaid interns and volunteers from harassment and discrimination.

Counting to five isnot the same as counting desks

Even when the five-employee threshold applies, peopleundercount their own employer constantly. The governing regulation, 2 CCR §11008(d), is broader than most people assume:

• Part-time counts the same as full-time. The regulation's own example: an     employer has five employees when three work every day and two alternate to     fill one position, even though no more than four are ever working on a     given day.
• People on leave count. Family leave, pregnancy leave, a     leave of absence, even a disciplinary suspension. They stay in the count.
• Employees outside California count toward the     threshold. A company with     three people in San Francisco and four in Texas is not a four-person     employer for coverage purposes, though out-of-state employees generally     are not themselves covered when the conduct did not occur in California.
• Seasonal businesses count. An employer that regularly     staffs five or more people during its season meets the test even if it     runs smaller the rest of the year.
• Other locations count. Coverage looks at the employer,     not your particular worksite.

The count can also turn on whether people labeledindependent contractors were actually employees, which is its own analysis. Theshort version: a single-day headcount at your own desk is not the test, andgetting it wrong is the most common reason people talk themselves out of a realcase.

Some Californiaclaims have no size threshold in the first place

Even if an employer genuinely falls under five, that isnot automatically the end of it. Several California protections applyregardless of employer size:

• Whistleblower retaliation. Labor Code § 1102.5 protects     employees who report what they reasonably believe is a violation of law,     and it contains no employee minimum.
• Retaliation for exercising labor rights. Labor Code § 98.6 covers things     like complaining about unpaid wages.
• Equal pay. The California Equal Pay Act, Labor Code § 1197.5, applies without     a size threshold.
• Wrongful termination in violation of public policy. This is a court-created claim,     recognized in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d     167, and it does not depend on headcount.

So "we're too small" is an answer to onequestion, not to all of them.

What to bring to theconversation with an attorney 

None of thisrequires you to work out whether you're covered. It just makes the firstconversation faster.

1. A rough sense of the whole     company. Not just your office. Other locations, part-timers, people out on     leave, anyone working remotely from another state. Approximate is fine.
2. What happened, in order. What was     said or done, by whom, and when. You do not need to know which legal     category it falls into. Conduct that looks like one kind of claim often     turns out to be several.
3. Anything you already have in     writing. Offer letters, schedules, org charts, group emails, team rosters,     the company directory. These are often what establishes how many people     the employer actually has.
4. The dates. In California you     generally have three years from the discriminatory act to file a complaint     with the Civil Rights Department, and one year from a right-to-sue notice     to file suit. Federal deadlines can be much shorter, commonly 300 days.     Deadlines vary with the type of claim, so the sooner we see the dates, the     more options stay open.

Questions people askus

How many employees does a company need beforeCalifornia discrimination law applies?

For most FEHA discrimination claims, five. GovernmentCode § 12926(d) defines a covered employer as one regularly employing five ormore persons. That is below the federal threshold of 15 under Title VII and theADA, and well below the 20 required by the federal age discrimination law.

Can I be harassed at a company with only two employees?

Yes, and the law covers it. For harassment claims only,Government Code § 12940(j)(4)(A) defines an employer as anyone regularlyemploying one or more persons, or regularly receiving services from one or morepeople under a contract. The individual who harassed you can also be personallyliable under § 12940(j)(3).

Do part-time workers count toward the five?

Yes. Under 2 CCR § 11008(d)(1)(B), part-time employeescount the same as full-time ones, including people who work partial days orfewer than five days a week. Employees on paid or unpaid leave are alsocounted.

My employer has three people here and several inanother state. Are they covered?

Possibly. Employees located inside and outsideCalifornia are both counted in determining whether the employer meets thefive-employee threshold under 2 CCR § 11008(d)(1)(C). Out-of-state employeesare generally not themselves protected if the conduct did not occur inCalifornia, but they still count toward coverage for the people who work here.

Are there employers FEHA does not cover?

There are narrow exclusions, including certainreligious nonprofit corporations under the definition in § 12926(d). Mostprivate employers with five or more employees are covered, and the harassmentprovisions reach nearly everyone.

How long do I have to file?

Generally three years from the discriminatory act tofile with the Civil Rights Department under Government Code § 12960(e), thenone year from the issuance of a right-to-sue notice to file a lawsuit. Filingwith the CRD is required before going to court, and you can request animmediate right-to-sue notice when you file.

Key takeaways

• The 15-employee rule you found online is federal. California's FEHA     generally starts at five.
• FEHA harassment protections have no size minimum at all, down to a     single employee, and the harasser can be personally liable.
• Counting to five includes part-timers, employees on leave, workers     at other locations, and employees outside California.
• Several California claims, including whistleblower retaliation and     wrongful termination in violation of public policy, have no employer-size     threshold.
• Deciding your employer is too small, based on a federal web page, is     how real claims get abandoned.

Where to go fromhere

You do not need to figure out the headcount rulesbefore you call. Tell us roughly how many people work there, where they are,and what happened. Working out whether your employer is covered is our job, andit is often a different answer than people expect.

You can reach us here for a free consultation.

Sources: California Government Code § 12926(d) (five-employee definition ofemployer); § 12940(a) (discrimination), § 12940(j)(1) and (j)(4)(A) (harassmentcoverage, contract workers), § 12940(j)(3) (personal liability of harasser), §12940(c) (unpaid interns and volunteers); 2 CCR § 11008(d)(1)(A)–(C) (countingrules for part-time employees, employees on leave, and employees outsideCalifornia); Government Code § 12960(e) (three-year CRD filing deadline, asextended by AB 9) and § 12965(c) (right-to-sue and one-year deadline);California Civil Rights Department, Employment Discrimination guidance; TitleVII, 42 U.S.C. § 2000e(b) and ADA, 42 U.S.C. § 12111(5) (15 employees); ADEA,29 U.S.C. § 630(b) (20 employees); Labor Code §§ 1102.5, 98.6, 1197.5; Tamenyv. Atlantic Richfield Co. (1980) 27 Cal.3d 167. Figures and citationscurrent as of September 2026.

‍