Question:

I am the owner of a private business, and just received a discrimination complaint that was filed by an employee with the Department of Fair Employment and Housing (DFEH). What does the DFEH discrimination complaint process entail and what I should expect?

Answer:

Receiving a discrimination complaint from the DFEH can be quite unsettling, but understanding the process will allow you to know what to anticipate.

Investigation

The DFEH acts as a neutral fact-finder and therefore does not represent the employee or the employer. Rather, the DFEH’s objective is to gather evidence to determine whether there is enough factual information on which to base a valid complaint. If a complaint is accepted for investigation, the complaint is also filed with the United States Equal Employment Opportunity Commission (EEOC). Findings made by the DFEH are typically accepted by the EEOC.

In determining whether there is sufficient evidence to establish a valid claim, the DFEH will consider evidence from the complaining employee and from the employer, as well as from neutral witnesses. Initially, you will be required to respond to the complaint in writing. There may also be an onsite investigation at your business and/or telephone interviews with your staff. The DFEH also has the authority to take depositions, issue subpoenas and interrogatories, and issue temporary restraining orders during the course of the investigation. The DFEH has up to one year from the date a complaint is filed to complete its investigation.

Conciliation

If based on the DFEH’s investigation, it appears the employer has violated the law, the District Administrator for the DFEH will schedule a formal conference to try to settle the dispute. At the conference, the DFEH will present the evidence it has found.

Litigation

If attempts at resolution are not successful, the District Administrator will issue an “accusation” or complaint. The complaint will then be heard at an administrative hearing before the Fair Employment Housing Commission (FEHC), or in civil court. Whether the complaint will be heard at an administrative hearing or in a civil court often depends on the types of remedies the complaining employee is seeking. In fact, the employee may request a “right to sue” letter so that he or she can bypass the DFEH investigation and instead file a civil lawsuit.

Remedies

The remedies that the FEHC is permitted to award at an administrative hearing include reinstatement of the employee’s job, back pay, out-of-pocket losses, emotional distress damages, and administrative fines. The FEHC may also order a change in the employer’s policies. Emotional distress damages and administrative fines are limited to a total of $150,000 and administrative fines are paid to the State General fund, and not to the victim. The FEHC is not permitted to award punitive damages. On the other hand, if the complaint is heard in a civil court, all of the aforementioned remedies are permitted, as well as emotional distress damages, that are not subject to the $150,000 limit, and unlimited punitive damages instead of administrative fines. It is important to note that the party that prevails at trial may also recover reasonable attorney’s fees, expert witness fees and costs. The administrative hearing process is faster and less expensive than a lawsuit culminating in a trial in civil court. Additionally, the remedies available to the complaining employee in civil court are greater.

The best advice to employers who have received a DFEH complaint is to cooperate as fully as possible with the DFEH during the investigative process. The vast majority of claims are either resolved to both parties’ satisfaction or found to be without merit during this phase of the complaint process.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2005 Articles