workplace discrimination 1.jpg

                             Workplace Discrimination

                                                                                                Overview

The Department of Fair Employment and Housing (DFEH) is responsible for enforcing state laws that make it illegal to discriminate against a job applicant or employee because of a protected characteristic.

California laws bar discrimination to all business practices, including:

  • Advertisements

  • Applications, screening, and interviews

  • Hiring, transferring, promoting, terminating, or separating employees

  • Working conditions, including compensation

  • Participation in a training or apprenticeship program, employee organization or union


The Fair Employment and Housing Act (FEHA) makes it illegal for employers (both public and private), labor organizations and employment agencies of 5 or more employees to discriminate against job applicants and employees because of a protected category, or retaliate against them because they have asserted their rights under the law. The FEHA also prohibits harassment based on a protected category against an employee, an applicant, an unpaid intern or volunteer, or a contractor. Harassment is prohibited in all workplaces, even those with fewer than 5 employees.

California law protects individuals from illegal discrimination by employers based on the following:

  • Race, color

  • Ancestry, national origin

  • Religion, creed

  • Age (40 and over)

  • Disability, mental and physical

  • Sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions)

  • Sexual orientation

  • Gender identity, gender expression

  • Medical condition

  • Genetic information

  • Marital status

  • Military or veteran status

 

                                                                                                       Common FAQ:


Q:  Who is covered by the employment part of the Fair Employment and Housing Act?

A:  The FEHA applies to public and private employers, labor organizations, apprentice training programs, employment agencies, and licensing boards. An employer can be one or more individuals, partnerships, corporations or companies. Employers of five or more are subject to the FEHA’s prohibition against employment discrimination. Harassment is prohibited in all workplaces, even those with only one employee or independent contractor on staff. “Employer” does not include the federal government or a non-profit religious association or corporation.

Q:  Who can file a complaint of employment discrimination?

A:  Any applicant or employee—or an individual who works in a sheltered workshop or rehabilitation facility—can file an employment discrimination complaint with DFEH. This includes applicants for training programs leading to employment. An employee, applicant, unpaid intern, volunteer, or contractor may file a complaint of harassment.

Q:  What are the time limits for filing a complaint of employment discrimination?

A:  Effective January 1, 2020, a complaint of employment discrimination must be filed within three years of the last act of discrimination/harassment. For victims who are under the age of eighteen, not later than three years after the last act of discrimination-harassment or one year after the victim’s eighteenth birthday, whichever is later. You must file a complaint with DFEH even if you wish to file a case directly in court. If you wish to go to court, you can request an immediate “right to sue” notice when you file your complaint.

Q:  Must the person be a U.S. citizen or legal permanent resident to file a complaint of employment discrimination?

No. The FEHA applies to California workers regardless of their citizenship or immigration status. DFEH does not inquire about citizenship or immigration status.

Q:  If I already filed a complaint with the Federal Equal Employment Opportunity Commission (EEOC), can I also file with DFEH?

If a complaint has been filed with EEOC, it will automatically be filed with DFEH as well, although the EEOC will usually investigate. If a complaint is filed with DFEH and alleges facts that would violate a law enforced by the EEOC, the complaint is automatically filed with EEOC, although DFEH will usually investigate. The worksharing agreement between DFEH and EEOC is posted on the DFEH website.

Q:  How does a person file a complaint of employment discrimination?

A:  Start by filing an “Intake Form.” You can find that form using any of the following methods:

  • Online by creating an account and using DFEH's interactive California Civil Rights System, CCRS. When you begin, you will see instructions how to open a free account. From then on you can use the service to communicate with DFEH.

  • Call the Communication Center at 800-884-1684 (voice). If you are deaf or hard of hearing, please call 800-884-1684 (voice or 711 relay operator) or 800-700-2320 (TTY).

  • Print and fill out a hard copy of the Intake Form that matches your issue and send it.

  • Via U.S. mail to any of DFEH’s office locations.

  • Via E-mail to contact.center@dfeh.ca.gov.


If you have a disability that prevents you from submitting a written pre-complaint form online, by mail, or email, the DFEH can assist you by scribing your pre-complaint by phone or for individuals who communicate by American Sign Language through the relay system. Contact the Communication Center 800-884-1684 (voice or 711 relay operator) or 800-700-2320 (TTY) or by email to contact.center@dfeh.ca.gov to schedule an appointment.


Q:  How does DFEH conduct an investigation?

A:  DFEH gathers evidence to determine if the complainant’s allegations can be proven. The individual filing the complaint is called a complainant and the employer is called a respondent. The investigation process includes gathering evidence from both sides, interviewing the parties and witnesses, and reviewing records.


An investigation may be conducted on site and/or through telephone interviews. DFEH has the authority to take interviews under oath, issue subpoenas and interrogatories and seek temporary restraining orders during the course of its investigation. All evidence gathered is analyzed to determine if a violation of the Fair Employment and Housing Act has occurred.

Q:  How long does it take DFEH to conduct an investigation?

A: Generally, DFEH has up to one year from the date a DFEH complaint is filed to complete an investigation.


Q:  How long does DFEH retain investigation records?

A:  DFEH retains records for 3 years after an investigation is closed.

Q:  Does DFEH represent complainants?

No. During the investigation, DFEH acts as an objective fact-finder, gathering evidence to determine whether the complainant’s allegations can be proven. DFEH does not represent either the complainant or the respondent.

If the investigation establishes that there is evidence to support the complainant’s allegations, and the parties do not reach a settlement,


DFEH’s Legal Division reviews the case for potential litigation in court. DFEH has attorneys who prepare and file cases in court. When DFEH decides to sue, it files a civil lawsuit in the name of the Department of Fair Employment and Housing against the employer. DFEH attorneys represent the Department, not the individual complainant. The complainant is a real party in interest in the lawsuit.


Although the assigned DFEH attorney is not the complainant’s personal legal advisor, the complainant’s interests are important in the litigation, and the complainant receives 100% of any remedies recovered, with the exception of attorney fees and costs. DFEH does not charge complainants attorney fees or expert witness fees, nor does it take a percentage of any award or settlement.

Q:  What remedies are available to people who file complaints of employment discrimination?

A:  The remedies available for employment discrimination include:

  • Back pay (past lost earnings)

  • Front pay (future lost earnings)

  • Hiring/Reinstatement

  • Promotion

  • Out-of-pocket expenses

  • Policy changes

  • Training

  • Reasonable accommodation(s)

  • Damages for emotional distress

  • Punitive damages

  • Attorney’s fees and costs


Q:  What is a reasonable accommodation?

A:  A reasonable accommodation is a change in the way things are done that helps employees or applicants with disabilities do a job.


Examples of Reasonable Accommodations:

  • Making premises accessible

  • Reserved parking spaces

  • Allowing service animals at work

  • Job restructuring

  • Modified work schedule

  • Changing policies

  • Extra training

  • Working from home

  • Leave of absence

  • Reassignment to a vacant position


Examples of Not Reasonable Accommodations:​

  • Lowering production standards

  • Lengthy, indefinite leave of absence

  • Creating a temporary job


Q:  What is the interactive process?

A:  An employer and employee/applicant engage in the interactive process when they discuss and consider options for reasonable accommodations. An employer must begin this process if:

  1. An employee/applicant requests a reasonable accommodation;

  2. The employer otherwise learns that an employee/applicant needs an accommodation; or

  3. An employee with a disability has no medical leave left but still cannot return to work.


In the interactive process, the employer must consider any requested accommodation. If the employer rejects the requested accommodation, it must consider other options. When the disability or need for accommodation is not obvious, the employer can require the applicant/employee to provide medical records showing the need for accommodation, but not disclosing the nature of the disability. These medical records must remain confidential.

Q:  The employer can refuse to grant the employee's accommodation because of “undue hardship,” but what is “undue hardship?”

A:  “Undue hardship” means an action that would require significant difficulty or expense when considered with factors such as the cost of the requested accommodation, the overall financial resources of the employer, the overall size of the business, and the type of business operations. An employer that denies a requested accommodation because of undue hardship must consider other possible accommodations.

Q:  Which unfair employment practices can DFEH help with?

A:  DFEH does not have jurisdiction over all workplace complaints. It can only help resolve employment complaints that involve discrimination or harassment based on a FEHA-protected characteristic such as race, sex, religion, national origin, or disability, for example, or reasonable accommodation, CFRA or PDL complaints.


When someone files a discrimination complaint with DFEH, they will evaluate the facts and decide whether to accept the case for investigation. If the case is accepted, DFEH will independently investigate the facts and the legal issues, including reviewing any  responses to the complaint and other information and evidence that is submitted. In appropriate cases, DFEH will attempt to resolve the dispute, or it may also decide to take legal action.

If you decide to use the DFEH investigation process, you will need to gather the following:

  • The specific facts and any records about the incident(s), including the name and contact information of the person or entity you believe harmed you (if known);

  • Copies of any documents or other evidence related to your complaint; and

  • The names and contact information of any witnesses (if known).


Before you begin, you should have the following information available:

  • Contact information and mailing address for the respondent, i.e. the person or employer that you are filing against.

  • Contact information and mailing address for any additional respondents, i.e. any additional person(s) that you wish to file against.

  • Contact information and mailing address for the “Agent for Service.” This is the person that should be notified that you filed a complaint and obtained a Right to Sue notice. If you do not know the name of the person who should receive a copy of the complaint, you may provide the contact information and mailing address for the human resources manager. If you do not know the name of the human resources manager, please provide contact information for the owner or president of the company.

In employment cases, you must do this within three years of the date you were harmed. In most other cases, you must do this within one year of the date you were harmed.


In employment cases only, you must obtain from DFEH a Right-to-Sue notice before filing your own lawsuit in court. If you would prefer not to use the DFEH investigation process and instead file your own lawsuit, you can obtain an immediate Right-To-Sue notice. DFEH will evaluate the allegations in the intake form and decide whether the laws that DFEH enforces cover these allegations.


DFEH can only investigate violations of certain civil rights laws. While you may believe you were treated unfairly, DFEH can only accept cases if one of the laws it enforces may have been violated. If your complaint is not accepted for investigation, it is not because DFEH does not believe you were mistreated, but rather your complaint, if proven, would not violate the civil rights laws that DFEH enforces.

If your allegations are covered by one of the laws DFEH enforces, it will prepare a complaint form for your signature. When you return the signed complaint, it will be delivered to the person or entity that you believe discriminated against you (called the respondent).

When a respondent answers a complaint, DFEH reviews it with the complainant. 


In most cases, the filing of a complaint does not mean that DFEH has already determined whether there is reasonable cause to believe any laws have been violated. Instead, it means that DFEH has preliminarily determined that the laws that the department enforces cover the complaint’s parties and allegations.

Although DFEH may provide legal services and advice for complainants who are seeking relief for alleged civil rights violations, the department independently investigates and assesses the facts and legal issues in each case. These investigations and assessments include, among other things, reviewing information and evidence from complainants, respondents, or other sources.

As appropriate or required by law, DFEH attempts to resolve complaints through the free dispute resolution services that that DFEH offers to parties.

Unless a complaint has already been resolved, DFEH uses the facts obtained through its investigation to determine if there is reasonable cause to believe that a law it enforces has been violated. If not, the case is closed. If there is reasonable cause, DFEH notifies the parties of this determination and may notify them that it intends to file a lawsuit in court. 


But before DFEH files a lawsuit, it typically requires the parties to go to mediation. This mediation provides another opportunity to reach an agreement to resolve the dispute. If the case is not settled during this mediation, DFEH may proceed with filing its lawsuit in a court of proper jurisdiction. 

Q:  Once a complaint has been filed, can you contact the DFEH investigator to get more information about the complaint?

A:  Yes. Do not hesitate to contact the assigned investigator to discuss the complaint. If the file contains additional non-confidential information about the allegations that are not shown on the official complaint, the investigator verbally may share this information with you.

Q:  If an employee files a DFEH complaint after being disciplined, can the employer still fire the employee?

A:  Firing an employee for filing a complaint with DFEH is illegal retaliation. If the employer disciplines an employee for violating a company policy or for poor performance, without any intention of firing the employee, the employer will be in violation of the FEHA if it discharges the employee for filing a complaint.

Q:  Can an employer file a complaint against an employee?

A: No. An employer  cannot file an employment discrimination complaint with DFEH against an employee. DFEH investigates only complaints filed by individuals who believe they have been the victim of unlawful discrimination in violation of the FEHA. However, if an employee refuses or threatens to refuse to comply with the FEHA, the employer can file a complaint with DFEH asking for assistance through mediation or other remedial action.

Q:  Does DFEH share investigative records with the parties?

A:  DFEH does not share investigative records of open case files Once a case is closed, parties may request copies of the file. The information DFEH releases is governed by the Public Records Act and relevant privileges.

Q:  Can individuals file a lawsuit instead of using the DFEH investigative Process?

A:  Yes. Individuals may file their own lawsuit for employment discrimination in court rather than using the DFEH investigation process. This is advisable only if you have an attorney. Also note that if you receive a right-to-sue notice, your complaint will not be investigated by DFEH even if you later decide not to file a lawsuit.

Be aware that in filing your own lawsuit for employment discrimination, you:

  • Elect to not exercise your option of having DFEH investigate your complaint.

  • Understand that you should have an attorney to file a lawsuit

  • Understand that you have one year from the date of your Right to Sue notice to file a lawsuit.

  • Understand that DFEH will not file your complaint with EEOC, and that if you wish to obtain a federal Right to Sue notice, you must visit EEOC’s Website, or call them at (800) 669-4000 or TTY (800) 669-6820.

If you have any further questions or need additional information about unlawful workplace discrimination, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.

Disclaimer

Copyright Law Office of Stephen Fiegel – All rights reserved.

Nothing on this site is legal advice. All information is for educational purposes only. If you require legal advice, please contact an attorney in your specific jurisdiction. Do not act or refrain from acting based on what you read on this site. Viewing this site or communicating with Stephen Fiegel through this site does not create an attorney/client relationship.  Please review the full  “Terms of Use/Disclaimers/Legal Advertisement” page on this site for more information.