You Must File an Administrative Charge Before You Can File A Lawsuit
Before filing a lawsuit against your employer, you must first file a charge of discrimination and ultimately receive a "right to sue" letter from either the Department of Fair Employment and Housing (DFEH) and/or U.S. Equal Employment Opportunity Commission (EEOC). It is not necessarily advantageous to request an "immediate right to sue" (discussed further below). Sometimes the DFEH and/or EEOC will investigate your claim(s) and even seek a monetary remedy for you without the need to file a lawsuit. However, before you decide to accept a settlement through the DFEH or EEOC, you should contact an attorney because he/she may be able to get you a significantly larger amount of compensation by filing a lawsuit. To file a charge of discrimination contact an attorney, the DFEH, and/or the EEOC (internet links provided below).
Short Statute of Limitations
In California, in order to file a lawsuit against an employer for discrimination, you must first file a charge of discrimination with the DFEH and/or the EEOC. You do not need an attorney to file charges for you. However, I highly recommend it because if you make even the slightest of errors in filing a charge, it could destroy your claim(s). If you cannot find an attorney to file charges for you, counselors at the DFEH or EEOC will assist you. The time in which you have to file a charge of discrimination against your employer could be as short as 6 months from the last date of discrimination). The EEOC (federal government) requires that you file a charge within 180 days of the last date of discrimination. The DFEH (State of California) requires that you file a charge of discrimination within 1 year of the last date of discrimination. If you are a government employee, the process is more stringent. Contact the DFEH or EEOC for information on which statutes apply to you.
Shorter Time for Government Employees
If you work for the government, the procedure for filing a charge can vary. For example if you are a federal employee, you must contact your EEO Counselor within 45 days of the day the discrimination occurred. Once you receive notice from your EEO Counselor on how to file a complaint, you must do so within 15 days. Because of these highly technical procedures, it's important that you consult an attorney to assist you.
Should I File With The DFEH or EEOC?
This is an excellent question that I hear a lot and it's not easily answered. In order to file a lawsuit for discrimination you must first exhaust your remedies through an "administrative" agency either the DFEH or EEOC. If you are not sure which one to choose you can file with both. The U.S. makes discrimination illegal through Title VII. In order to file a discrimination lawsuit under Title VII, you need to file charges with the EEOC. This path will ultimately land you in a United States Federal District Court (where the amount you can win is capped). California has its own own discrimination laws, separate from Title VII. In order to sue under California's law, you need to file charges with the DFEH and ultimately you may end up in a California Superior Court. Depending on where you are located in the State of California and which laws give you the greatest advantage, your attorney will make a decision whether to file the lawsuit in federal or state court.
Retaliation is illegal. Sometimes retaliation can be subtle. For example, when you oppose discrimination in the workplace and your employer takes an adverse action against you. If you have opposed discrimination in the workplace and were retaliated against by your employer, you may also have a valid claim that must first be filed with the DFEH and/or EEOC before seeking damages in a civil court.
Sexual Orientation Discrimination
Please take note that the EEOC does not enforce sexual orientation discrimination because this is not a protected category under Title VII. However, the state of California does prohibit this type of discrimination. Therefore you must file charges with the DFEH to bring a lawsuit. In addition, there are other agencies and jurisdictions that will enforce laws prohibiting discrimination based on sexual orientation. Contact an attorney for additional information on this form of discrimination.
Benefits of Contacting an Attorney
Employment discrimination cases are complex. Having an attorney from the beginning is important. An attorney can advise you on what is needed to prove your case, how you can document discrimination, collect evidence, and preserve it. For example, on average an employment case may take 3 years to resolve. Organizing the right evidence from the beginning is key since you might end up presenting your case years later. Attorneys that practice within this field typically work on a contingency fee basis, meaning that they only get paid once you settle or win. An attorney can assist you in meeting the filing requirements and deadlines. When completing a charge of discrimination you will be asked various questions about the discrimination. Using the proper language and describing the events correctly in your charges could be crucial to the outcome of your lawsuit. Seek the advice of an attorney for this.
Should You Request an Immediate Right to Sue?
Once you file a charge of discrimination with the DFEH and/or EEOC, you can request an immediate "right to sue." Meaning that you are allowed to file a lawsuit in a civil court. However, if you don't request an immediate right to sue, the DFEH and/or EEOC may decide to investigate your claim(s) and seek a remedy on your behalf. An attorney can assist you in determining whether its best in your situation to have the DFEH and/or EEOC investigate your charges or to proceed immediately in a civil court. If you do not have an attorney yet, you should not request an immediate right to sue.
Disclaimer - Not A Substitute For Legal Advice
The information contained within this Guide is only current as of the date it was written [2/2011]. Statutes of limitations may change. It is critical that you contact an attorney to determine the appropriate statutes of limitation that apply to your claim(s). Pursuing a discrimination claim can be complex and the procedure cannot be explained exhaustively in this guide. Do not consider this guide legal advice. In addition, this guide is based on employees working in the State of California. If you need assistance in finding an attorney in a different state, contact your local bar association.