Question:

I recently demoted one of my employees. I have now received a complaint from an office called the Department of Fair Employment and Housing in which the employee claims she was discriminated against based on her race. What does all of this mean?

Answer:

The Department of Fair Employment and Housing (“DFEH”) is the administrative agency that enforces the California Fair Employment and Housing Act (“FEHA”), as well as other laws. The “FEHA” is the California law regarding discrimination and harassment in the workplace. Your employee is apparently claiming that she was demoted due to her race which, if true, would be a violation of the FEHA.

When an employee alleges that he or she has been subjected to discrimination or harassment at work and wants to bring a claim under California law, the employee has two choices: the employee can file a complaint with the DFEH and the DFEH can conduct the investigation of the matter, or the employee can request a right-to-sue letter and file a lawsuit in court. In the latter case, the DFEH doesn’t consider the merits of the case but simply issues the right-to-sue letter. In your case, the employee has decided to have the DFEH conduct the investigation.

The fact that you have received this complaint from the DFEH only means that the agency has interviewed the employee and has determined that the employee has raised allegations that, if true, constitute a violation of California law. However, it does not mean that the DFEH has determined that the law has been violated. Now that you have received the complaint, you as the employer have the opportunity to tell your side of the story. You must answer the complaint, addressing each allegation listed. You will also find that along with the complaint, the DFEH has listed documents that you are to provide and questions to be answered, as well as a deadline by when the information must be provided. The response must be sent to the DFEH by that deadline to ensure that your position and documentation on the matter receive full consideration. Since much weight is given to the employer’s written response and the documentation provided, it is advisable to seek the assistance of an attorney at this stage.

Before you respond to the complaint, the DFEH may contact you to discuss settlement of the claim. Although monetary settlements are the most common and receive the most publicity, a settlement could even entail a non-monetary resolution such as restoring the employee to her former position. The terms of any settlement are formalized in a written agreement. Settlements are often recognized as an opportunity to resolve the complaint voluntarily without a determination as to the merits, and often the parties can negotiate a term in the settlement agreement that provides that the employer does not admit any fault in the matter. These settlements are enforceable in a court of law.

If the complaint is not settled in the early stages of the case, the DFEH conducts a full investigation. This may involve an interview of the employer’s supervisor and other witnesses at the place of employment. It may also involve the DFEH accessing employment records and documents that are relevant to the claim and making an on-site inspection of the place of employment. It may also issue formal subpoenas, written requests for further information known as “discovery,” and may take the depositions of witnesses.

In some situations, after the investigation, the DFEH finds that the facts do not substantiate a violation of the law and dismisses the complaint. At that time, it will issue a right-to-sue letter, and the employee can still file a lawsuit in court.

If after the investigation has been completed the DFEH finds that the complaint is substantiated, it may schedule a formal conference to again try to settle the complaint. If no settlement is achieved, the director of the DFEH may issue an accusation of discrimination. The accusation must be issued within one year of the date a complaint is filed with the DFEH. If the accusation alleges hate violence, then the accusation must be issued within two years of the date the complaint was filed. The employer can then elect to either have the matter heard by the Fair Employment and Housing Commission, or transfer the matter to court.

As the employer who has received a complaint of discrimination, you should be aware that the law prohibits retaliation against a complainant or anyone who acts as a witness in the matter. Therefore, you should be cautious in any employment decisions you make regarding these individuals such as disciplinary action or termination that could appear to be retaliatory. You should keep any written materials that are relevant to the complaint raised by the employee until the DFEH has reached a decision and all possible appeals and proceedings have ended. You should provide the DFEH with all information requested and work cooperatively with the agency, including advising them immediately should you change your address.
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