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DEM-EMPL-01 — Elements missing from FEHA prima facie case
Elements missing from the FEHA prima facie case.
Most demurrers to FEHA counts succeed by walking the court through the four elements — protected class, qualification, adverse action, inference of motive — and identifying which one is not alleged. The most common casualty is the fourth element: complaints that describe an adverse action without pleading any facts that would support an inference of discriminatory motive.
Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354–355; Gov. Code § 12940, subd. (a).
DEM-EMPL-02 — Adverse employment action pled as adjectives, not facts (Yanowitz)
"Adverse employment action" pled as adjectives, not facts.
A FEHA count that alleges the plaintiff was "subjected to adverse employment actions" without identifying a specific, material change in the terms of employment is vulnerable. Yanowitz requires a substantial and material effect on the terms, conditions, or privileges of employment — not minor slights, isolated criticisms, or schedule changes without economic consequence. Attack the adverse-action element when the complaint leans on conclusions.
Yanowitz v. L'Oréal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1054.
DEM-EMPL-03 — Missing or mispled CRD right-to-sue exhaustion
Missing or mispled CRD right-to-sue exhaustion.
FEHA claims require exhaustion at the California Civil Rights Department (formerly DFEH) before filing. Exhaustion exists because FEHA channels employment disputes through the agency first, giving CRD a chance to investigate and conciliate before the court system absorbs the case — bypassing CRD defeats the statute's front-end filter. Plaintiffs miss this in two ways: they fail to allege the right-to-sue date at all, or they allege exhaustion for some FEHA claims but not others (typically adding a retaliation or harassment theory at amendment without going back to CRD). Exhaustion is jurisdictional — a count unsupported by a right-to-sue letter for that theory is properly sustained.
Gov. Code § 12960, subd. (b); Gov. Code § 12965; Rojo v. Kliger (1990) 52 Cal.3d 65, 83.
DEM-EMPL-04 — Tameny claims without anchored public policy
Tameny claims that do not anchor the public policy.
A Tameny claim that alleges termination violated "public policy" without identifying the specific constitutional or statutory provision is a routine demurrer target. Tameny is a narrow common-law carve-out from California's at-will default: the four Stevenson requirements exist to keep the exception narrow enough that it does not swallow at-will employment. Without a specific policy anchor, the claim collapses back into at-will and fails. The policy must be delineated in a constitutional or statutory provision, public in nature (benefitting more than the employee), well-established at the time of the discharge, and substantial and fundamental. Attack at the anchor: which provision does the complaint cite, and does it meet all four Stevenson requirements?
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890.
DEM-EMPL-05 — § 1102.5 pled under old McDonnell Douglas framework (Lawson)
§ 1102.5 retaliation pled under the old framework.
Since Lawson v. PPG Architectural Finishes (2022), Labor Code § 1102.5 is governed by the § 1102.6 statutory framework — contributing-factor causation, clear-and-convincing same-action defense. Any § 1102.5 count briefed or opposed under pre-2022 McDonnell Douglas logic — burden shifting, "but for" causation, pretext — is using the wrong framework. The point is not that the complaint fails on demurrer for using old language, but that the opposition to a demurrer that invokes Lawson will fail if it defends the count under the old framework.
Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718; Lab. Code § 1102.6.
DEM-EMPL-06 — § 1102.5 "reasonable belief" without identified legal basis
§ 1102.5 "reasonable belief" without an identified legal basis.
Whistleblower retaliation complaints often allege the plaintiff "reported concerns" or "believed conduct was illegal" without identifying the law the plaintiff reasonably believed was violated. California requires a concrete statutory, regulatory, or rule-based foundation — the plaintiff need not have been correct, but must identify what provision she thought was at issue. Generalized ethical concerns are not enough.
Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592–593; Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1346.
DEM-EMPL-07 — IIED against employer — the Janken bar
IIED against employer — the Janken bar.
An IIED claim against an employer based on personnel-management activity — discipline, performance reviews, demotion, termination, transfer, workload assignment — is barred by workers' compensation exclusivity under Janken. The reason the bar is this broad: workers' compensation is the Legislature's grand bargain — employees trade tort recovery for a no-fault, faster remedy — and allowing IIED claims to ride alongside ordinary personnel decisions would unravel that bargain. The bar is broad: even harassment-adjacent conduct can trigger it when the conduct arises in the course of employment. Attack the claim by showing the conduct alleged falls within ordinary personnel-management activity, however poorly motivated.
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80; Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902–903.
DEM-EMPL-08 — Tort claims barred by workers' comp exclusivity
Tort claims barred by workers' compensation exclusivity.
Common-law tort claims against employers — negligence, negligent hiring, negligent supervision, most emotional-distress claims — are barred by Labor Code § 3602(a) when the injury arises out of and in the course of employment. Narrow statutory exceptions exist (intentional assault by employer, concealment of injury, out-of-scope ratification), but the presumption is exclusivity. Complaints that plead a generic negligent-supervision theory against an employer should face a dispositive exclusivity challenge.
Lab. Code § 3602, subd. (a); Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902–903.
DEM-EMPL-09 — Pregnancy as standalone claim rather than sex discrimination
Pregnancy pled as a standalone claim rather than sex discrimination.
FEHA treats pregnancy and related conditions as a form of sex discrimination, not a separate statutory claim. A count captioned "pregnancy discrimination" as a standalone claim — rather than as a FEHA sex-discrimination count with pregnancy as the protected-class subcategory — can draw a demurrer on that framing. The usable rule is the subdivision (r) definition; the claim is the sex-discrimination claim.
Gov. Code § 12926, subd. (r)(1); Gov. Code § 12940, subd. (a).
DEM-EMPL-10 — Disparate-impact claims without identified policy (Mahler)
Disparate-impact claims without a specifically identified policy.
A disparate-impact count that alleges "defendant's hiring practices" or "defendant's compensation decisions" cause disparate impact on a protected class — without identifying the specific policy, test, or criterion at issue — is vulnerable. Mahler requires identification of the particular policy or practice, not a diffuse pattern of decision-making.
Mahler v. Judicial Council of California (2021) 67 Cal.App.5th 82, 112–114.
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