Written by attorney Sebastian Gibson

DFEH, EEOC, DLSE and DIR Complaints for Discrimination in California - Choosing the Right Agency

Both the DFEH, and the EEOC may handle a discrimination, harassment and retaliation claim and the DLSE/DIR's Sacramento office which enforces retaliation laws, may act simultaneously, so long as the matters are timely filed with each agency within the appropriate statutes of limitations. With the DFEH, once the employee or ex-employee makes an appointment to start the process, the wheels will begin turning but the statute of limitations is not tolled until a complaint is filed by the employee. With the EEOC, once the employee files an intake questionnaire and an affidavit describing the discrimination, the filing requirement will be met with the EEOC, after which the EEOC will notify the employer of the filed charge. After the EEOC receives the charge, they are obligated to conduct an investigation and they have the power to issue subpoenas in connection with their investigation. If the EEOC finds unlawful discrimination, they have the power to eliminate such unlawful practices. Even an enforceable agreement binding an employee to arbitrate disputes with the employer does not affect the EEOC's power to sue the employer to enjoin further violations. Nor does it bar the EEOC from seeking victim-specific relief, including money damages. If the EEOC is unable to secure a conciliation agreement with an employer within 30 days after a charge is filed, the EEOC may file a civil action against the employer and may seek temporary or permanent relief. If the DFEH decides to pursue a matter themselves, they may issue an accusation and prosecute the claim before the Fair Employment and Housing Commission (FEHC). Like the EEOC, the DFEH has the power to issue subpoenas, take depositions and serve written interrogatories. If they find a violation, they will seek to eliminate it. The DFEH has the authority to issue cease-and-desist orders, and to award reinstatement, backpay, front pay, emotional damages, and an administrative fine. The amount of that fine is determined by factors which include willful, intentional or purposeful conduct, refusal to prevent or eliminate discrimination, conscious disregard for the rights of employees, commission of unlawful conduct, intimidation or harassment, conduct without just cause or excuse and multiple violations of the FEHA. While the amount awarded for emotional distress may not exceed $150,000 for each person, an additional amount of $150,000 may be awarded for intimidation. The FEHC may also award reasonable attorney fees, including expert witness fees to the prevailing party. However, the award to the prevailing party is discretionary and the courts generally do not require a losing plaintiff to pay the employer's California labor attorney's fees and costs. While the amount of damages that can be awarded for compensatory and punitive damages recoverable under Title VII go up to only $300,000 against companies with 501 or more employees, there are no such limits under the FEHA. Even under Title VII, damages for emotional distress may be awarded. Title VII specifically authorizes compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses. Before the Civil Rights Act of 1991, neither compensatory nor punitive damages were recoverable under Title VII. By contrast, both types of damages were and are available under the FEHA. Punitive damages are also now available against nongovernmental entities under Title VII for cases of intentional employment discrimination, including cases proved by disparate treatment where the respondent engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual. The standard is similar with the FEHA. Employers are bound by state laws that provide greater protection for employment than comparable federal laws, which is the reason most employment claims are filed with the FEHA. When it comes to harassment and retaliation, the California constitution prohibits harassment based upon factors which include race, color, sex, national or ethnic origin. Discrimination based on physical or mental disability, marital status, a medical condition (including pregnancy and child birth) and sexual orientation is also prohibited. The FEHA also requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring. With the DFEH, the interviewing consultant drafts a formal complaint. If the complaint is accepted for investigation, the complaint is also filed with the EEOC. After the DFEH issues an accusation, the DFEH may litigate the case in a public hearing before the Fair Employment and Housing Commission. If emotional distress damages or administrative fines are sought, the employee can have the case moved to a civil court. If the case is moved to court, the DFEH prosecutes, but the complainant is the real party in interest. Government codes section 12965(b) requires that individuals must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a "right-to-sue notice" from the Department before filing a lawsuit. The DFEH, however, will accept requests for an immediate "right-to-sue-notice" from persons and from their California labor lawyers for clients who have decided to proceed in court. A DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit. Once a "right-to-sue-notice" is received from the DFEH, the employee has one year to file a civil lawsuit. Failure to do so may again cause you to lose your right to sue. Common mistakes by harassment victims are not telling the person doing the harassment to stop, not documenting the harassment by that person, not reporting the harassment to your superiors, not making sure the employer is taking action to end the harassment, not obtaining medical or psychological help when needed, not realizing that retaliation is illegal, accepting the word of your employer that you do not have a case for harassment or discrimination, not filing a DFEH, EEOC or DLSE/DIR complaint within the time allowed, not having an attorney assess whether any arbitration agreement is binding, and not consulting with an attorney. A complaint to the EEOC under Title VII of the Civil Rights Act of 1964 must be made within 180 days from the date of the incident. This period, however, is extended to 300 days if the employee also files a complaint with the DFEH. Complaints of discrimination commonly include discrimination based on race, color, religion, sex, national origin, age, handicap, sexual orientation and retaliation or reprisal. That time period, however, can be reduced to as little as 30 days after a complainant receives notice that a state agency such as the DFEH has terminated its processing of a charge. It is thus best to contact the EEOC immediately whenever discrimination is suspected because of its short statutes of limitations. Once a complaint is filed with the EEOC, if the EEOC finds substantial evidence of discrimination, it will file a lawsuit. If the EEOC does not find sufficient facts to support the complaint, it dismisses the complaint and issues a "right to sue" letter to the complaining party. A lawsuit must then be brought by the complaining party within 90 days of receiving the Right to Sue letter from the EEOC. A much less publicized and less known agency, even among California labor attorneys in the State of California at which complaints for retaliation and discrimination can be filed is with the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR). An employee or job applicant alleging violation of any law under the jurisdiction of the Labor Commissioner must file a complaint with the DLSE within six months of the adverse action. Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote and other actions. There are, however, some exceptions to the 6-month deadline, but again, it is best to file a complaint as soon as possible to ensure that it is timely.

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