In California, employees who wish to file a discrimination lawsuit cannot do so until they first file “charges” with the federal Equal Employment Opportunity Commission (EEOC) and/or the California Department of Fair Employment & Housing (DFEH) and obtain “right to sue” letters. This process is called “administrative exhaustion”.
Luckily, the systems are now highly automated and charges can be filled out online at the DFEH‘s website and, as of 11/1/17, at the EEOC‘s website. You can still choose to mail your charge in using the DFEH’s form. And the EEOC permits you to mail in a letter containing the following:
* Your name, address, and telephone number
* The name, address and telephone number of the employer (or employment agency or union) you want to file your charge against
* The number of employees employed there (if known)
* A short description of the events you believe were discriminatory (for example, you were fired, demoted, harassed)
* When the events took place
* Why you believe you were discriminated against (for example, because of your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information)
* Your signature
Typically, people file with the EEOC if they intend to pursue federal employment discrimination claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, etc. (No EEOC charge need be filed for medical leave claims under the Family and Medical Leave Act (FMLA) or gender pay discrimination claims under the Equal Pay Act). People file with the DFEH if they intend to pursue state employment discrimination claims under the Fair Employment and Housing Act (FEHA) and medical leave claims under the California Family Rights Act (CFRA).
EEOC v. DFEH
California employment laws tend to offer at least the same amount and types of protections as federal employment laws and, in many respects, more powerful protections for the employee. For instance, the California FEHA protect a wider class of disabled people than the Americans with Disabilities Act (ADA) and applies to a broader set of employers (employers with more than 5 employees for FEHA versus 15 employees for Title VII). Also, California employment claims are generally not subject to the special employer defenses that exist under federal law. See Price Waterhouse v. Hopkins (1989) 490 U.S. 228; Desert Palace, Inc. v. Costa (2003) 539 U.S. 90. A California court tried to introduce these federal employer defenses into California law in Harris v. City of Santa Monica but, thankfully, the court reversed itself after granting a petition for rehearing filed by my colleague, Michael Nourmand, a Los Angeles employment attorney.
So for now, California laws (and filing with the DFEH) are generally the better way to go for employees.
In any case, the EEOC and DFEH have a “work sharing agreement” under which a charge filed with one is deemed filed with the other.
There are aggressive filing deadlines (which is one reason why you shouldn’t wait too long before consulting with a lawyer). Employees must file with the EEOC no later than 180 days after the illegal action occurred. For the DFEH, the deadline is 1 year.
Agency Investigations v. Private Lawsuit
The EEOC/DFEH agency receiving your charge may investigate and prosecute your claims themselves. Unfortunately, due to limited resources and budgets, the process can be drawn out and frustrating, taking a year or more. Even if the agency makes a finding of discrimination, it may still choose not to prosecute the matter in court. In almost all cases, the process is not as effective or efficient as a private lawsuit. To see something analogous to what I’m talking about, read my post, Dept. of Labor Fails to Protect Workers: “We have a crisis in wage theft”.
Traps for the Unwary
It’s amazing how some judges decide to let the EEOC and DFEH charges into evidence against the employee and even throw cases out based on what is contained in (or missing from) the charges. Defense lawyers like to make a big deal in front of the jury out of inconsistencies or contradictions contained in the charges, even though employees often fill them out themselves without the help of a lawyer. This is why it is always better to contact a lawyer BEFORE filling out and filing the charge yourself. Do not underestimate how important the charge can be to your case and how it can be used against you.
Also, keep in mind that different filing procedures and deadlines apply for government employees and for claims regarding whistleblower retaliation and wage and hour claims (overtime, breaks, minimum wage, etc.).
If you are facing legal issues in the workplace, contact a lawyer to discuss it and he can help you navigate the filing traps for the unwary.