If you have been the victim of workplace discrimination or harassment in California, you can file a complaint with the Civil Rights Department (CRD). This office was formerly known as the California Department of Fair Employment and Housing (DFEH), so the filing is still referred to as a DFEH Complaint. 5 key steps to take to file a successful one are:
- figuring out if you have a valid claim,
- gathering evidence,
- determining whether the CRD is the best agency for your complaint,
- engaging with the investigation, and
- negotiating a satisfactory outcome or filing a lawsuit.
If you have an employment lawyer, he or she can help you take these steps.
1. Determine whether you have a valid claim
The Fair Employment and Housing Act (FEHA) is a civil rights law that forbids unlawful harassment, discrimination, and retaliation in the workplace. However, there are some situations where it will not cover your case, such as when:
- the FEHA does not cover your employer,
- the conduct was not unlawful, or
- the statute of limitations has run.
For example, the FEHA only covers the following employers:
- those that regularly employ 5 or more people,
- those that act as an agent of a covered employer, and
- public entities, like the State of California or a city or county government.[1]
However, this does not include:
- religious associations,
- religious nonprofits, or
- the federal government or many of its contractors.[2]
Additionally, you have 3 years from the date of the unlawful activity to file your DFEH complaint.[3] This is the statute of limitations. If you wait longer than that to file your complaint, it will be thrown out.
2. Gather evidence to support your claim
If you have a valid claim, the next step is to gather evidence that supports it. What evidence is relevant will depend on the claim, itself.
For example, if you are filing a claim of workplace discrimination, pertinent evidence may be:
- proof that you are in a protected class, which cover distinct traits like:
- marital status,
- medical conditions,
- gender identity,
- gender expression,
- sexual orientation, and
- national origin;
- documentation of workplace bullying for being in that class,
- a written refusal to provide a reasonable accommodation for your protected trait,
- testimony from other workers who are or were similarly situated,
- pay stubs that show reductions in your pay,
- documentary or testimonial evidence that you were excluded from decision-making opportunities or meetings, and/or
- performance reviews that show sudden and drastic changes in them.
However, if your DFEH complaint would be for retaliation, some types of relevant evidence would be:
- details about the activity which triggered the retaliation that show it was a legally protected activity,
- documentation or testimony that shows that you have suffered an adverse employment action, and
- indications that suggest that the setback is connected to your activities, such as a close temporal proximity or explicit statements by supervisors.
An employment attorney with experience helping others through this step can make a huge difference.
3. Determine whether the CRD is the right place for your filing
The CRD may not be the only place to file your complaint. Typically, the options are to file a:
- complaint under California state law with the CRD,
- complaint under federal law with the S. Equal Employment Opportunity Commission (EEOC), or
- lawsuit in state court, under state law, or in federal court, under federal law.
The CRD accepts complaints that allege the following violations of the FEHA:
- retaliation,
- harassment, including sexual harassment, or
- [4]
The federal EEOC accepts claims alleging violations of Title VII of the federal Civil Rights Act of 1964.
Title VII and the FEHA mirror each other closely. However, there are some differences in the laws that might alter where it is best to file your complaint.
Filing a lawsuit in state or federal court typically requires you to exhaust your administrative remedies, first. This means going through the CRD or EEOC claims process and obtaining a right to sue letter.[5] However, limited exceptions to this rule might make this option available to you.
4. Engage in the investigation
The filing of a DFEH complaint, also referred to as a pre-complaint inquiry, triggers an investigation. At this point, you are the “complainant.”
You will be contacted by an investigator soon after the complaint has been filed. An intake hearing will take place. During that interview, which typically happens over the phone, you will be asked questions about what happened.[6]
If the investigator thinks that there is a valid claim, he or she will provide you a complaint form. This is a description of the events that took place that you are claiming were unlawful. If the description is accurate, you can sign and return it to the CRD.[7]
The signed complaint form is then served on your employer. They then become the “respondent.” They will have 30 days to respond to it.[8]
5. Negotiate a settlement or file a lawsuit
While the CRD investigates your claim, you and your employer may negotiate a resolution. If you go through CRD’s free mediation process, the investigation process will pause while talks are ongoing.
Most DFEH complaints are resolved through mediation or negotiation.
If the investigation closes and the case has not already been mutually resolved, CRD will release a report of its findings. The CRD can also:
- decide that there was no violation of the law, close the case, and issue you a right to sue letter,
- decide that the case has merit and represent you against your employer, or
- decide that case has merit but also to not intervene in it, and issue you a right to sue letter.
The right to sue letter allows you to file a lawsuit in court.
What is the DFEH complaint process?
Filing your DFEH complaint, also referred to as the initial intake form, sets the following process into motion:
- a CRD investigator reviews your complaint,
- if the complaint is valid, the investigator will schedule an intake interview,
- if there are signs that your complaint has merit, you will get a complaint form that describes your allegations and includes supporting evidence,
- if the complaint form is accurate, you sign and return it,
- the complaint form is served on your employer, who has 30 days to respond,
- CRD investigates your complaint and your employer’s response to it,
- you and your employer may engage in dispute resolution, and
- the investigation wraps up, the CRD releases its report and, if you get a right to sue notice, you decide whether to pursue your employer in court.
Remember that this is just the administrative stage of the case. Typically, you will have to go through this before you can file a civil lawsuit in court.
Having the legal advice of a lawyer with experience handling unlawful discrimination cases is essential for achieving success.
Do any other agencies handle discrimination complaints in California?
In addition to the CRD, the federal EEOC can handle a complaint of workplace discrimination in California. It has district offices in San Francisco and Los Angeles and several local offices across the state.
What is the EEOC’s role?
The EEOC enforces federal employment discrimination laws, most notably Title VII.
However, California’s law offers more protections and benefits to workers in the state. For example, FEHA does not cap financial compensation for your emotional distress, while Title VII does. If conduct seems to violate both state and federal laws, it is often better to advance under California’s FEHA.
Legal References:
[1] California Government Code 12926(d) GOV.
[2] Same.
[3] California Government Code 12960 GOV.
[4] California Government Code 12940 GOV.
[5] See California Government Code 12965(b) GOV.
[6] 2 California Code of Regulations (CCR) 10007(b).
[7] 2 CCR 10009.
[8] 2 CCR 10023.
