2009 marked the 50th anniversary of the California Fair Employment and Housing Act ("FEHA") and its predecessor, the Fair Employment Practices Act. The Legislature's goals in 1959 were rather limited: to prohibit discrimination in compensation, terms, conditions and privileges of employment, and in hiring and firing, on the basis of race, creed, national origin or ancestry. New York and California led the nation in passing legislation which eventually resulted in the first comprehensive federal anti-discrimination law, Title VII of the Civil Rights Act of 1964. (42 U.S.C. § 2000e et seq.)
Today, the FEHA's employment provisions prohibit discrimination and harassment in the workplace based on race, creed, color, national origin, ancestry, physical disability, mental disability, mental condition, marital status, sex, age or sexual orientation; protects employees from retaliation for invoking the protection of the FEHA; prohibits sexual harassment and wrongful termination, requires employers to provide reasonable accommodation and engage an the interactive process to find reasonable accommodation for individuals with disabilities; provide liability for employers who fail to prevent unlawful discrimination and harassment; and prohibit employers from testing for genetic characteristics. (Cal. Gov't Code § 12940)
The FEHA also permits employees to take family care leave; provides anti-harassment and anti-discrimination protections for pregnancy, childbirth or related medical conditions; requires employers to make reasonable accommodations for pregnancy, childbirth or related medical conditions; requires employers to provide sexual harassment training to their supervisors; and prohibits the enforcement of certain workplace language policies. (Cal. Gov't Code § 112940, § 12945 et seq., § 12950 et seq. and § 12951)
If you fall into one of the protected categories listed above and feel your rights have been violated, what next? There are several options for pursuing legal remedies in the State of California. You may file a complaint with the Department of Fair Employment and Housing ("DFEH" found at dfeh.gov), with the EEOC (Federal equivalent), or request the DFEH provide you with an immediate "right-to-sue" letter. If you fail to first follow a complaint with the DFEH for any of the proscribed activities listed above, you may be prohibited from filing a lawsuit. Up until several months ago complainants were required to fill out a DFEH form, mail it in and wait for the responsive "right-to-sue" letter. This could often times take several weeks. Fortunately, the DFEH now maintains an electronic filing option which can be found by clicking on this link.
I often have clients ask which method is preferable, file with the DFEH and let them investigate and hopefully rectify the situation, or whether to proceed with hiring a lawyer and directly filing a lawsuit. It's a good question.
A brief overview of the DFEH process is required. In the DFEH employment complaint process the complainant is first interviewed to collect facts about possible wrongdoing/discrimination. The DFEH then investigates the case and has the authority to issue subpoenas and interrogatories and to take depositions. So far, its similar to the civil court process. If the investigation shows a violation the DFEH will attempt form conciliation which is an attempt between the DFEH and the Employer to resolve the complaint. There are no awards of damages at this stage. If formal conciliation fails, the District Administrator may recommend litigation. If the DFEH decides to litigate the matter they do so in a public hearing before the Fair Employment and Housing Commission (FEHC). Or the case can be moved to court.
I believe there are several benefits to proceeding with an attorney. First, the DFEH process can be slow with limited information shared with the complainant about the process or progress of the investigation. A lawyer and client on the other hand work directly together against the Employer to realize the maximum benefit for the client. The filing of a formal public lawsuit applies pressure to an employer, usually requires the engagement of expensive defense lawyers and is handled by motivated competent attorneys whose own welfare is at stake. The remedies in a hearing before the FEHC are similar with three exceptions:
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There is no limit on emotional distress damages in civil court ($150,000 cap at FEHC).
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Instead of administrative fines, unlimited punitive damages may be awarded in civil court.
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The prevailing party may recover their reasonable attorney's fees, expert witness fees and costs (HUGE!)
A private attorney will also conduct extensive discovery (interrogatories, document requests and depositions) and will have the knowledge and expertise necessary to competently represent employees who have been harmed.
An employee who successfully prevails in a lawsuit against their employer for violations under FEHA may be awarded back pay, out-of-pocket expenses, affirmative relief, training, policy changes, and emotional distress damages, and prevailing party reasonable attorney fees. The risk of potentially having to pay the plaintiff's attorney's fees is a strong incentive to early settlement for the employer.
California has some of the most comprehensive employee laws in the nation. If you have any questions about your experience, or any of the issues raised in this article, please contact us at 619-342-8550.
