You have to file a charge of discrimination with the EEOC or California Department of Fair Employment and Housing before you have a claim to be arbitrated (at least arguably) so go ahead and file. Do not request a right-to-sue letter from the agency; request the investigation. After you find an attorney, he or she will coordinate the timing of the right-to-sue letter with the work the attorney is doing.
Note you could still file in court to dispute the validity of the arbitration agreement, and if you win, you will not be able to pursue your harassment and retaliation case unless you first exhaust the administrative (EEOC or DFEH) requirements.
If you were to receive a right-to-sue letter from either the EEOC or DFEH and file a case in court, the employer would make a motion to have the case sent to arbitration
Do not expect the EEOC or DFEH to represent you. It is very, very rare that either agency takes a case to litigation, due in part to a lack of resources, both financial and personnel.
Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&permalink=what-is-unlawful-employment-discrimination--california-law which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits. It discusses the differences between the EEOC/federal law and DFEH/state law; attorneys in California agree that pursuing claims with the DFEH and under state law is much better for the employee.
In nearly every case, you need your own attorney for employment litigation, mediation or settlement. Regardless of whether you are in your state agency or the federal Equal Employment Opportunity Commission (EEOC) www.eeoc.gov, the agency is not your representative. A mediator, settlement officer, investigator or other representative for the agency has one client – the government. Some agency representatives are great and will do their best to protect you rights even though they are not your advocate. Some agency representatives stink and care more about closing the case than they do about the person who filed the charge.
Because the agency has a particular mission and because it is not representing you, if it turns out your interests and those of the agency clash, the agency representative is required to make sure the agency’s goals are carried out, not yours.
Also, the agency will only consider issues relevant to laws the agency enforces, such as discrimination laws. It will not consider such things as employer liability under wage and hour laws, mutuality in a settlement agreement, circumstances under which you might have to return the money, the language of a settlement agreement (which could have all kinds of "gotchas" that the agency doesn't notice or doesn't deal with), and more.
In addition, agency representatives most often handle low-value cases because that is what ends up in their offices. They handle high-value cases far less frequently, and even less frequently handle high-value cases where the charging party doesn’t have an attorney. If you show up without an attorney, the agency rep may interpret your case as low-value, even if it isn’t. Of course the agency representative may learn the value of your case during the process, but why start off with such a large obstacle?
Similarly, without an attorney, the employer probably won't take you or your case seriously and may be able to take advantage of you. No one is watching your back if you don't have your own attorney.
Consider that the employer most likely has an attorney or has consulted with its attorney. Even if the employer doesn't have an attorney, it usually has human resources personnel who have been down this route before and know far better than you do how to use the system to its own advantage.
It is nearly always the case that a charging party will do better overall with an attorney, even taking into consideration the attorney's fees portion of the recovery.
*** 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. ***
Ms. Spencer's response was great, of course. I just wanted to add that just because you signed an arbitration agreement, that does not mean you will necessarily have to arbitrate the issue. In the employment context, and specifically where sexual harassment and retaliation are concerned, an arbitration agreement can be determined unenforceable for many reasons. I am not saying it is a guarantee, but there are some very good reasons for setting aside employer arbitration agreements, and if this particular employer is not represented by well-versed counsel, or if the agreement is from several years ago, there may well be ways to avoid the consequences of the arbitration clause.
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.
An employee cannot contract out of, by singing an arbitration agreement, an agency (EEOC) investigation. Since you already secured a right to sue letter, there is statute of limitations to keep in mind.
You should contact an employment attorney to discuss your options, sooner rather then later.
Best of luck,
Oleg Albert, Esq.