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Time limits on EEOC/DFEH claim and Right to sue letter

San Jose, CA |

I faced multiple discrimination, which resulted in retaliation and wrongful termination on 03 Dec 2012. On 13 Apr 2013 I filed a charge to EEOC, and they expect me to sign Form-5 by 30 Jun 2013.

Do I understand correctly that I have the following options:
1. If I sign a charge of discrimination, EEOC initiates official investigation and issues State notice of right to sue, thereby, allowing me to pursue protection of my rights through State court (within a year).
2. If I do not sign a charge of discrimination, EEOC issues Federal notice of right to sue. I am not sure, whether I receive State notice of right to sue in addition to Federal one.

My ultimate purpose is to proceed to State Court with a proper attorney on my back up.

Attorney Answers 3


If your goal is to proceed in state court, there is no benefit to you and no reason to file with the EEOC, unless your case involves one of the very few areas where federal discrimination law is better than state discrimination law. In well over two decades of practice, I've only seen this situation once.

You are correct that if you proceed with the EEOC, the EEOC will give you the California Department of Fair Employment and Housing (DFEH) right-to-sue letter; this is due to a work-sharing agreement between the two agencies.

Here is the law regarding the time limit for filing suit in state court when a case is processed through the EEOC:

CAL. GOV. CODE § 12965
–––(d)(1) . . . the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
–––––––––(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
–––––––––(B)The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
–––––––––(C)A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
–––(d)(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.

What you are asking is answered in subparagraph (d)(2).

If you do not sign a charge of discrimination (Form 5) with the EEOC, it will not issue either a federal or state right-to-sue notice because it will not have jurisdiction (power to act). You have to initiate the case by signing the charge.

You can only sue in court on the issues claimed and described in the DFEH or EEOC charge, so you must get it right. You really need to proceed with an attorney to better protect your rights. If your case has merit, you should not have trouble finding an attorney.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best. *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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1. The EEOC will issue a Right to Sue (RTS) if it decides not to take your case after you file Form-5. Alternatively if the EEOC has commenced an investigation and 180 days have elapsed you have the right to request a RTS. Generally you only have 90 days to file a lawsuit after receiving a RTS from the EEOC however the California Department of Fair Employment and Housing (DFEH) and the EEOC have a "work sharing agreement" whereby a complaint filed with one agency is deemed to be filed with the other. Thus you will have one year from issuance of the right to sue from the DFEH. I would follow up with the DFEH/EEOC to ensure that the EEOC has forwarded your complaint after you have completed and filed Form 5. You will need an RTS from both agencies if you truly intend to litigate your case.

2. In theory you should receive a RTS from the DFEH (State) and the EEOC (Federal). Again I would follow up with the agencies. If your goal is to stay in state court your best bet would be to file with the DFEH claiming violations of the Fair Employment Housing Act which parallels the federal laws or may even provide more protection. Pleading federal claims could subject you to removal to federal court. Make sure to include ALL of the facts that pertain to your claims as you want to give the employer proper notice of your allegations.

This is a very complex area of law filled with many potential pitfalls for plaintiffs. I would advise that you work with an attorney from the get go if your goal is to litigate in State Court.

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Two great responses already. I would just echo Ms. Spencer's wise advice that there is really no good reason to file with the EEOC when you can file with the DFEH.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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