©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 155 6. Employment Discrimination Legislation and Litigation 6.1 Comparing California Antidiscrimination Law with Federal Statutes Some differences between California law and federal law on various aspects of employment discrimination law appear below. In each instance, California law is more onerous for employers. Issue California statutes Federal statutes How many employees must an employer have to be covered? Five or more employees, as to discrimination generally, and just one or more, as to harassment.1 15 or more employees, as to race, color, religion, disability, gender, national origin, and 20 or more employees, as to age.2 Are independent contractors protected? Yes, as to harassment (see § 6.5). No. Are unpaid interns and volunteers protected? Yes, as to discrimination against unpaid interns,3 and yes as to harassment of unpaid interns and volunteers (see § 6.5). No. Are there caps on punitive and compensatory damages? No (see § 5.11). Title VII has caps of $50,000- $300,000, depending on employer size; ADEA does not authorize recovery for emotional distress, and authorizes penalties only in the form of liquidated damages.4 Are plaintiffs’ counsel awarded multipliers on attorney fee awards? Yes (see § 5.12). No. Is there individual liability for harassment by a supervisor or coworker? Yes (see § 6.5). No. Is it specifically unlawful to “aid, abet, incite, compel, or coerce” discrimination? Yes (see § 6.5). No. Is the employer automatically liable for a hostile environment created by a supervisor? Yes (see § 6.5). Only if employer fails to show the affirmative defense described below. 5
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