DFEH Complaints: Everything To Know in 2019
Although many California employers are subject both to Title VII and the Fair Employment and Housing Act, complaints alleging discrimination usually are examined separately under each law.
The California Department of Fair Employment and Housing is charged with responsibility to receive, investigate, and conciliate complaints alleging discrimination either on a basis enumerated in the Fair Housing and Employment Act. Additionally, the department is charged with the responsibility to facilitate its power to investigate complaints.
The California Department of Fair Employment and Housing has the following authority:
- To issue subpoenas to obtain the testimony of witnesses and the production of books, records, and other physical materials;
- To examine witnesses under oath, and to take evidence, depositions, and affidavits;
- To issue written interrogatories;
- To request the production of books, records, and other physical materials for inspection and copying; and
- To petition the state superior courts, where necessary, to compel compliance with the powers noted above.
If the California Department of Fair Employment and Housing determines that a claim is valid, it can seek to resolve the matter by conference, conciliation, mediation, or persuasion. Alternatively, it is empowered to bring a civil action in State or federal court.
Filing of DFEH Complaints
Who May File a Complaint
Any “person” claiming to be harmed by an unlawful practice may file a verified written complaint with the California Department of Fair Employment and Housing at no cost. For this purpose, “person” includes “one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries.” (Government Code Section 12925(d)). For example, a job applicant or employee who has been denied an employment opportunity due to unlawful discrimination can file a complaint with the California Department of Fair Employment and Housing against the prospective or actual employer responsible for such denial.
An employer is also authorized to file a verified complaint with the California Department of Fair Employment and Housing if some of its employees refuse or threaten to refuse to comply with the Fair Employment and Housing Act. Obviously, there are some circumstances where an employee’s refusal to comply with the prohibitions against discrimination or harassment can expose the employer to liability. Therefore, the employer may wish to discipline such an employee. Additionally, the California Department of Fair Employment and Housing may sign and file a complaint on its own (without a complaint by an individual or an employer).
Supervisors and Agents
The Fair Employment and Housing Act authorizes administrative and civil complaints against supervisors for unlawful harassment and retaliation because it prohibits unlawful employment practices by a “person.” Individuals with authority to hire and fire or to control the conditions of employment are personally liable as agents of the employer. Liability is imposed where such individuals either (a) participate in the unlawful conduct, (b) tacitly approve of the improper action, (c) fail to take action upon learning of the discriminatory conduct, or (d) participate in the decision-making process that was the basis of the discriminatory condition.
Timing of California Department of Fair Employment and Housing Act Complaint(s)
A complaint generally must be filed within one year from the date upon which the alleged unlawful practice occurred. Nevertheless, the one-year period may be extended for an additional 90 days if the person alleging to be harmed first obtains knowledge of the unlawful practice more than one year from the date of their occurrence. The statute of limitations generally begins to run at the time the action in question takes effect.
Remedies in Actions by the California Department of Fair Housing and Employment
Remedies can include a requirement that the employer conduct training for all employees, supervisors, and management on the Fair Employment and Housing Act’s requirements, the rights and remedies of those who allege violations, and the employer’s internal grievance procedures. In addition, a court may assess against a defendant a civil penalty of up to $25,000 to be awarded to a person denied any right. (Section 51.7 of the Civil Code.32 (h)).
Exhaustion of Administrative Remedies
The Fair Employment and Housing Act forbids unlawful employment discrimination and creates an administrative forum that is available to persons alleging that they have been victims of employment discrimination. The administrative forum is available without cost to the individual filing a complaint, and is intended to provide a vehicle for investigating complaints. The Fair Employment and Housing Act also encourages employers and individuals who believe they have been discriminated against to cooperate in the administrative process.
In order to initiate a civil court action based on an alleged Fair Employment and Housing Act violation, a job applicant or employee must first invoke and exhaust the administrative remedies that are available under the Fair Employment and Housing Act. Failure to exhaust the administrative remedies before filing a civil action may result in the dismissal of the court action.
Exclusive Remedy Issues
The California Supreme Court first concluded in 1990 that the Fair Employment and Housing Act does not displace other causes of action and remedies that are available for sex discrimination and sexual harassment. It recognized that victims of discrimination are therefore free to seek relief for the resulting injuries under any state law, without limitation. The Supreme Court subsequently reached the same conclusion with respect to age discrimination.
In 1998, the Supreme Court extended the principle to conclude that Labor Code Section 132a does not provide the exclusive remedy for causes of action alleging disability discrimination. For example, Section 132a prohibits discrimination against employees who file or make known their intention to file a workers’ compensation claim. The Supreme Court disapproved of prior cases that had found Section 132a to provide the exclusive remedy for a termination based on a work-related disability. When individuals with such disabilities are also covered by the Fair Employment and Housing Act and the Americans with Disabilities Act, they may pursue remedies under those statutes as well. Employees frequently tether emotional distress claims to employment discrimination claims. In such cases, the failure to establish discrimination may undermine a cause of action for emotional distress. Such claims may also be barred by the exclusivity rule of the workers’ compensation law.
Fair Employment And Housing Act Chart
The following is a summary of some of the principal time constraints imposed on the complaint resolution process under the Fair Employment and Housing Act. The following is a summary of some of the principal time constraints imposed on the complaint resolution process under the Fair Employment and Housing Act.
- Date of Alleged Discriminatory Act
- Verified complaint must be filed within one year of the unlawful practice or, if the individual aggrieved by such practice first obtains knowledge of the facts of the unlawful practice after such period, within one year and 90 days of the unlawful practice.
- Service of verified complaint upon the employer or other respondent alleged to have committed the unlawful practice must be made within 60 days after the complaint is filed.
- Upon the complainant’s request, California Department of Fair Employment and Housing must issue the complainant a right-to-sue letter if no civil action is issued within 150 days of the date the complaint is filed or if it earlier decides not to bring a civil action. If the complainant does not request a right-to-sue letter earlier, California Department of Fair Employment and Housing must issue the letter upon completion of its investigation, but not later than one year after the complaint is filed. Complainant has one year after receiving right-to-sue letter to file a civil action.
- Civil action may be filed by California Department of Fair Employment and Housing within one year after the complaint is filed (or within two years in the case of a group or class complaint).
Interrelationship of Title VII Limitations Period With State Law
Many federal laws are designed to occupy the entire field that they attempt to regulate and therefore operate to displace or “preempt” State laws intended to govern the same practices. In contrast, Title VII specifically authorizes State fair employment practice laws, provided that they do not require or permit acts that would violate Title VII.
Title VII establishes special rules that apply in states, such as California, which have enacted their own employment discrimination laws. These rules apply to discrimination charges that challenge employment practices that are prohibited by Title VII and the Fair Employment and Housing Act. The rules create limitations both on how soon and how late a charge may be filed with the Equal Employment Opportunity Commission alleging violations of Title VII.
- First, the California Department of Employment and Fair Housing has the exclusive right to process allegations of discrimination over which it has subject matter jurisdiction for the first 60 days. Therefore, a charge technically cannot be actively processed by the Equal Employment Opportunity Commission before the expiration of 60 days after proceedings have began under the Fair Employment and Housing Act (unless the state proceedings terminate before the expiration of 60 days). The 60-day period in which the Equal Employment Opportunity Commission charge cannot be filed is called the “exclusive processing period.”
- Second, if the charging party has initiated proceedings with the California Department of Employment and Fair Housing alleging a violation of the Fair Employment and Housing Act and also desires to file a charge with the Equal Employment Opportunity Commission alleging that the same practice constitutes a violation of Title VII, the charging party must file the Equal Employment Opportunity Commission charge:
- Within 300 days after the alleged violation occurred, or
- Within 30 days after receiving notice from the California Department of Fair Employment and Housing that it has terminated its proceedings, whichever is earlier. The Equal Employment Opportunity Commission is required to file copies of charges that initially are filed with it with the California Department of Employment and Fair Housing.
In most cases, a discrimination complaint initially filed with the California Department of Employment and Fair Housing is automatically deemed filed with the Equal Employment Opportunity Commission if the Equal Employment Opportunity Commission also has jurisdiction over the case. It can, however, be argued that an employer has a good defense to a Title VII claim if the charging party satisfies the following requirements:
- The person files a charge with the Equal Employment Opportunity Commission before filing with the California Department of Employment and Fair Housing, but
- fails to file the charge with the Equal Employment Opportunity Commission within 240 days of the alleged violation (unless the California Department of Employment and Fair Housing actually disposes of the charge before a total of 300 days has elapsed).
As noted earlier, a timely claim under the Fair Employment and Housing Act can be filed within one year from the date the allegedly unlawful practice occurred. (Section 12.2(b) of the Manual).
The California Department of Employment and Fair Housing can also exercise its authority to compel testimony and the production of materials where necessary (Section 12.2(a) of the Manual) .
A hearing generally does not occur in the California Department of Employment and Fair Housing process unless it determines that an accusation should be issued against the employer. If an accusation is issued, a hearing is provided by the FEHC (Section 12.2(f) of the Manual).
Employer’s Position Statements
An employer’s approach to responding to a discrimination charge will vary depending upon a number of factors, such as the nature of the claim, the type of evidence available in favor of or against the allegations raised, the amount of liability potentially involved, the number of job applicants and/or employees potentially affected, and the availability of any defenses. However, an employer will usually want to defend its position aggressively by filing a statement of position with the Equal Employment Opportunity Commission in addition to its responses to the questions that accompany the notice of the discrimination charge, to the extent they are relevant.
The Fair Employment and Housing Act’s one-year statute of limitations will be tolled under certain circumstances. For example, the statute of limitations may be subject to equitable tolling when an employee voluntarily pursues an internal administrative remedy prior to filing a complaint under the Fair Employment and Housing Act, or when a charge is timely filed concurrently with the California Department of Employment and Fair Housing and the Equal Employment Opportunity Commission.
The California Supreme Court has also recognized that employers may be held liable for unlawful actions occurring outside the one-year limitations period where the “continuing violations doctrine” applies. This authorizes liability for unlawful conduct occurring outside the limitations period if it is sufficiently connected to unlawful conduct within the limitations period. The Supreme Court concluded that an employer’s series of unlawful actions in a case of failure to reasonably accommodate an employee’s disability or disability harassment should be reviewed as a single actionable course of conduct if:
- The actions are sufficiently similar in kind;
- They occur with sufficient frequency; and
- They have not acquired a degree of “permanence” so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.
The United States Supreme Court recognized the applicability of the continuing violation doctrine to hostile environment claims in certain instances.
Defense and Settlement of Charges
Developing a Strategy
Employers are strongly advised to consult legal counsel before attempting to respond to any formal or informal claim of discrimination or inquiry of the California Department of Employment and Fair Housing or the Equal Employment Opportunity Commission. Thereafter, an employer can decide with counsel the appropriate strategy for responding to such a claim and the role that the attorney should play. As a practical matter, the employer also may wish to explore settlement possibilities at this time if it is interested in disposing of the matter without extensive delay, expense, and administrative inconvenience.
Among the numerous considerations that should be evaluated in the process of developing an appropriate strategy are:
- The nature of the allegations of discrimination;
- The number of job applicants and/or employees potentially implicated by the claim;
- Whether a class or individual claim is involved and whether it is likely that additional parties will be included in the claim;
- The employer’s potential exposure to liability if it should lose and the nature of available remedies;
- Whether exposure can increase further by a delay in resolving the claim;
- Whether the claimant can and has mitigated damages;
- The expense that would be incurred in actively defending the claim, including attorney’s fees, administrative costs, inconvenience, and lost time of key witnesses;
- The precedential effect of a settlement or a decision on other employees;
- The evidence supporting the charging party’s allegations and the evidence supporting the employer’s position;
- The availability of one or more legal defenses;
- The potential for settlement and the probable cost of settlement;
- The foreseeable impact of settling or litigating on employee morale;
- The likelihood of adverse publicity;
- The probability of success or failure in asserting any available defenses; and
- The likelihood of prevailing if the dispute is resolved by a court.
Evaluation of the factors noted above can assist an employer to determine whether settlement of the case should be pursued and, if so, the terms of a settlement that would be acceptable.
The Equal Employment Opportunity Commission and the California Department of Employment and Fair Housing representatives are under considerable pressure to settle cases where feasible in order to reduce their heavy backlog of cases. As a result, they encourage no-fault settlement offers by either party and prefer to resolve cases before it becomes necessary to issue a determination as to whether there is or is not reasonable cause to believe that the practices complained of were unlawful. Also, a settlement offer can be made and accepted at virtually any stage during the investigative process. Regardless of whether an employer decides to pursue a settlement or an aggressive defense, it must carefully plan a strategy to implement its decision without prejudicing its case. For instance, an employer generally should convey any settlement offer that it makes as a “no fault” settlement in which it continues to deny any allegations of unlawful discrimination against it. Otherwise, admissions of guilt made in settlement negotiations that do not result in a complete settlement may prejudice the employer’s defense in subsequent proceedings. Also, in some instances admissions of wrongdoing may affect claims of other individuals that may not be anticipated when one claim is being settled.
The Use of Releases and Waivers
Settlement agreements generally do not preclude the administrative agency from proceeding against an employer in connection with unresolved issues. However, a charging party can accept a settlement in lieu of pursuing further administrative or judicial remedies. Therefore, employers are well advised to obtain a written release of all claims (including claims that do not pertain to discrimination) by the charging party in exchange for anything it gives as part of the settlement. Although the Equal Employment Opportunity Commission or the California Department of Employment and Fair Housing may occasionally oppose releases that give greater protection to the employer than that offered by the standard agency releases, it is often important that the employer use its own release either instead of or in addition to the standard agency release. Furthermore, as a result of the enactment of the Older Workers Benefit Protection Act of 1990, releases and waivers of claims under the ADEA entered into on or after October 16, 1990, must satisfy highly burdensome requirements. These requirements include the provision of a reasonable period of time to an individual in the protected age group to evaluate the release, with the benefit of legal counsel, and a revocation period following the execution of the release.
Employers who fail to obtain releases that are sufficiently broad may find it necessary to defend themselves against other actions by the same individuals under different laws.
Settlement offers by an employer can range from an offer to provide a neutral employment reference (e.g., verifying the former employee’s position, dates of hire and termination, and wage rates) to various forms of affirmative relief, such as reinstatement with back pay and restoration of lost benefits and seniority. Numerous other forms of relief also may be offered in settlement. Proper releases and waivers are enforceable.
Measuring Exposure to Liability
In cases involving alleged discrimination resulting from the denial of a job opportunity, an employer faces potential liability that includes back pay that would have been received had the job been provided. Accordingly, any earnings received by the applicant or employee elsewhere after the date the job was denied should be considered before communicating any settlement offer since these amounts normally operate to reduce the amount of the employer’s exposure. The same is true of earnings that reasonably could have been earned during such period. Further, if it appears that liability for back pay is continuing to accrue during settlement negotiations and an offer to reinstate or hire the individual will be made, the employer may wish to convey a written offer of reinstatement or employment before the negotiations for other forms of relief are concluded in order to limit its back pay exposure. Obviously, numerous tactical considerations will affect such a decision.
Internal Investigation of Charge(s)
An employer must carefully investigate the allegations made in the charge of discrimination before it will be fully capable of evaluating the case for settlement or deciding to litigate. There are significant advantages to conducting such an investigation before a decision is made to commit to either course of action. For example, although the employer cannot depose or interrogate the charging party at its convenience, the employer generally has greater and more immediate access to information concerning the alleged practices or incidents than an administrative agency, even though the agency may have subpoena powers. Therefore, if the employer conducts an investigation in good faith as soon as possible after receiving notice of the claim, it usually will be in a position to evaluate the strengths and weaknesses of the claim. In this way, the employer can ascertain whether the claim has merit or is simply a frivolous or vindictive response by a former employee to an unsatisfactory employment relationship. A prompt investigation will enhance the likelihood of obtaining accurate information that is fresh in the memories of potential witnesses.
The investigation ordinarily should be confined to those individuals who were witnesses or possible witnesses to the alleged incidents and others who appear to have meaningful information concerning the claim. For example, a supervisor to whom a charging party complained ordinarily should be involved in the investigation even if the supervisor did not actually observe the incident that was the subject of the allegation. On the other hand, an investigation should not be overly broad since it can become a disruptive element in the workplace.
It can also impact adversely on the perception by others of the individual or individuals who are alleged in the complaint to have committed the unlawful conduct. Employers should also be mindful of defamation laws that protect such individuals as well as the laws protecting the charging party against discrimination and retaliation. This is particularly important where allegations of sexual harassment have been made. Finally, the involvement of legal counsel in the investigation process may operate in some cases to protect portions of the product of the investigation against discovery or disclosure to other parties, including the Equal Employment Opportunity Commission and the California Department of Employment and Fair Housing, due to the work product and attorney-client privileges. Once the employer’s investigation has been completed, it will be able to determine, on an informed basis, the appropriate course of action and will be in a better position to shape its strategy. Finally, it may also learn why the claim was filed and be in a better position to remedy problems and thus avoid future claims.