©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 157 Issue California statutes Federal statutes Can employers avoid religious accommodation simply by showing that it would impose a cost that is more than de minimis? No (see § 6.10). Yes.18 To show discrimination “because of” a protected status, must plaintiffs prove their protected status was a “but for” cause of the adverse action, or can they prevail merely by showing that their status was a “substantial motivating factor”? Proof of a “substantial motivating factor” is enough, although employers can avoid damages and reinstatement by pleading and proving a “same decision” defense.19 Proof of merely a motivating factor, where the employer would have taken the same action in the absence of that factor, does not warrant a finding of employer liability.20 6.2 Additional Protected Bases California law, like federal law, forbids employers from discriminating against employees and applicants on the usual bases (race, color, religion, sex, national origin, age, disability, and opposition or participation activity). But California law affects smaller employers (those with five or more employees), while Title VII (15 employees) and the ADEA (20 employees) apply only to larger employers. Moreover, California goes far beyond federal law, expressly protecting a dizzying array of broadly defined additional statuses: any perception that an individual has a protected characteristic, and any perception that an individual is associated with a person who has, or is perceived to have, a protected characteristic,21 political affiliation,22 marital or domestic partner status,23 sexual orientation,24 sex stereotype,25 gender, gender identity, gender expression, and transgender status,26 pregnancy, childbirth, and medical conditions related to pregnancy or childbirth,27 breastfeeding or medical conditions related to breastfeeding,28 all aspects of religious belief, observance, and practice, including religious dress and grooming practices,29 medical condition (any impairment related to cancer, or a record or history of cancer, and genetic characteristics),30 genetic information,31 veteran or military status,32
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