Intersectional Discrimination Claims in California After SB 1137
A California employer can’t defeat a discrimination claim by an older woman just by showing it promoted a younger woman and an older man. Since January 1, 2025, Government Code section 12926(o)(1) has defined FEHA’s protected characteristics to include “Any combination of those characteristics.” The change, made by SB 1137, makes the comparator defense harder to win on its own. Employers still win these cases on the real reason for the decision, documented at the time.
What the Legislature did
It added “combination” language to FEHA, the Unruh Civil Rights Act, and the Education Code, and called the change a clarification.
Senate Bill 1137 was approved by the Governor on September 27, 2024, as Chapter 779 of the Statutes of 2024, and the amended Government Code sections took effect January 1, 2025. Two FEHA provisions changed.
The definition section now says that the listed characteristics include “[a]ny combination of those characteristics,” along with a perception that a person has a combination, or is associated with someone who does. That’s section 12926(o). The policy section, Government Code section 12920, now says FEHA’s purpose is to provide remedies for “discrimination not just because of one protected trait, but also because of the combination of two or more protected bases.”
The bill’s findings state that the amendments “do not constitute a change in, or diminishment of, existing protections and obligations, but are declaratory of existing law.” That language matters to employers defending claims that arose before 2025. A plaintiff will argue the combination theory was always available under FEHA, and the Legislature has said so.
Where did the combination theory come from?
A 1994 Ninth Circuit decision that SB 1137 expressly adopted.
The bill’s findings state that “the Legislature affirms the decision of the Ninth Circuit Court of Appeals in Lam v. University of Hawai’i (9th Cir. 1994) 40 F.3d 1551.” In Lam v. University of Hawai’i, a law school graduate of Vietnamese descent alleged race, sex, and national origin discrimination after the school passed over the applicant for a program director position. The district court granted summary judgment, relying partly on the school’s favorable treatment of an Asian man and a white woman. The Ninth Circuit reversed as to the first of two searches.
The court explained that “where two bases for discrimination exist, they cannot be neatly reduced to distinct components,” and that “the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.” It faulted the trial court for treating “racism and sexism as separate and distinct elements amenable to almost mathematical treatment.”
Lam was a Title VII case. SB 1137 writes its reasoning into California law for FEHA claims, and the bill says federal law affords similar protection.
What changes for employers defending discrimination claims?
Mostly the comparator analysis, and how a court looks at harassment evidence.
The most common early defense in a discrimination case is evidence that the employer treated other members of the plaintiff’s protected group well. An employer accused of sex discrimination points to women it promoted. An employer accused of race discrimination points to its diverse workforce. That evidence still matters, but it answers the wrong question when the claim is about a combination. If the plaintiff is a Black woman, favorable treatment of Black men and white women doesn’t address whether the employer treated Black women worse.
| Defense argument | How a combination claim answers it | What still helps the employer |
|---|---|---|
| The employer promoted other women | The plaintiff alleges bias against women of a particular race or age, not women generally | Evidence about people who share the same combination, and a documented reason for the decision |
| The decision-maker shares one of the plaintiff’s traits | Sharing one trait doesn’t rule out bias against the combination | Testimony and records about the actual criteria used |
| Workforce statistics show no disparity by race or sex | Aggregate numbers can hide a gap in a smaller subgroup | Subgroup analysis done with counsel, if the numbers support it |
| The comments were about different traits | Remarks about age and sex together may show bias against older women | Context and timing of the comments, and the speaker’s role in the decision |
Harassment claims change in a similar way. A plaintiff can now combine comments about two protected traits into a single hostile environment theory. Remarks that look isolated when sorted by category can look pervasive when read together. Employers investigating complaints should read the whole record, not file each comment under one heading.
What doesn’t change?
The plaintiff still has to prove the decision was made because of a protected characteristic or combination.
SB 1137 broadens what counts as a protected basis. It doesn’t change causation, the burden of proof, or the employer’s ability to show a legitimate reason. A plaintiff alleging bias against a combination still has to connect the employment decision to that combination with evidence. The California burden-shifting process still applies, and an employer that can show a consistent, documented, nondiscriminatory reason remains in a strong position.
It’s also worth noting what the definition doesn’t list. Section 12926(o) applies to the characteristics it names, which include race, sex, age, disability, sexual orientation, and others. The same subdivision has long covered perception and association claims, which the firm discussed in its post on associational disability discrimination. Combination claims now sit beside those theories.
How should employers adjust their practices?
By testing decisions and data against the combinations a plaintiff might plead.
Before a layoff, a promotion round, or a reorganization, many employers review outcomes one characteristic at a time, such as race or sex. After SB 1137, that review should also look at combinations where the numbers are large enough to mean something, and it should be done under the direction of counsel so the analysis has the best chance of staying privileged. Small subgroups produce unreliable statistics, and that cuts both ways. A plaintiff’s statistical claim about a group of five is weak, but so is an employer’s reassurance based on one.
Managers making selections should write down the criteria before choosing, and the reasons after. When a decision is challenged, the strongest evidence is a record showing the same criteria applied to everyone, prepared before anyone complained.
Steps to take when a claim alleges a combination of traits
- Preserve the selection criteria, interview notes, scoring sheets, emails, workforce data, and the policies in effect, under a litigation hold once a claim arrives.
- Calendar the response date on the CRD complaint, EEOC charge, or summons, and check for an arbitration agreement and an EPLI policy with notice requirements.
- Identify every decision-maker and anyone who influenced the decision, and stop any further action against the employee that could look like retaliation.
- Pull the documents the defense depends on: the reason recorded at the time, how others who share the same combination of traits were treated, and any complaints the employee made.
- Talk to a lawyer before responding, running new workforce statistics, contacting the employee or their lawyer, or offering anything to settle.
Combination claims add a layer to the comparator analysis that experienced defense counsel for California employers will want to address early.
FAQ
Is intersectional discrimination a new cause of action?
No. SB 1137 didn’t create a new claim. It clarified that FEHA’s existing ban on discrimination and harassment covers decisions made because of a combination of protected characteristics. The bill’s findings say the changes are declaratory of existing law. In practice, a plaintiff pleads the same FEHA discrimination or harassment claim and alleges that the motivating basis was a combination of traits.
Does SB 1137 apply to claims based on conduct before 2025?
The bill states that its FEHA amendments are declaratory of existing law and don’t change existing protections. A plaintiff will rely on that language to argue the combination theory applied all along, and the Legislature also pointed to a 1994 federal decision. Employers defending older conduct should expect the argument and shouldn’t count on a retroactivity defense to defeat it.
Can an employer still use comparator evidence?
Yes, but it has to be the right comparison. Evidence about how the employer treated people who share the plaintiff’s specific combination of traits is far more useful than evidence about people who share only one. Comparator evidence also works best alongside a documented, consistent reason for the decision. Neither one alone is likely to end the case.
Does this apply to small employers?
FEHA’s definition of employer generally covers anyone “regularly employing five or more persons,” while the harassment provisions reach employers with one or more. SB 1137 didn’t change those coverage rules. It changed how the protected characteristics are defined, so any employer already covered by FEHA is affected.
If a claim alleges bias based on more than one protected trait
If your company has received a CRD complaint or lawsuit alleging discrimination or harassment based on a combination of race, sex, age, or other protected traits, the selection record and the right comparison group usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including discrimination claims based on a combination of protected characteristics. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
Government Code sections 12920 and 12926; Senate Bill 1137 (Stats. 2024, ch. 779); Lam v. University of Hawai’i (9th Cir. 1994) 40 F.3d 1551.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.