The Role of California’s Department of Fair Employment and Housing

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May 29, 2019

What Does the Department of Fair Employment and Housing Do?

The mission statement of California’s Department of Fair Employment and Housing (DFEH) is the following:  “The DFEH is the state agency charged with enforcing California’s civil rights laws.  The mission of the DFEH is to protect the people of California from unlawful discrimination in employment, housing and public accommodations and from hate violence and human trafficking.” So, what does this exactly mean?

In short, the DFEH has the authority to investigate complaints which allege violations of the Fair Employment and Housing Act (FEHA), which includes the California Family Rights Act (CFRA), the Unruh Civil Rights Act, the Disabled Persons Act, and the Ralph Civil Rights Act.  The majority of cases filed with the DFEH are for FEHA violations.  Unfortunately, however, the DFEH does not investigate every case filed in the department, mostly due to the lack of the agency’s resources, and only selects a handful of the most egregious cases out of the approximately 25,000 cases it receives each year.  It is because of this that many complaints filed with the DFEH are requests for an immediate “Right-to-Sue,” which bypasses the agency’s investigation process and allows the complainant to proceed with his or her claims in civil court.

If a complainant wishes to have the DFEH potentially investigate, he or she must file a Pre-Complaint Inquiry with the department online, by phone, or by mail.  An investigator will then contact the complainant by telephone and conduct an intake interview to determine whether the DFEH has jurisdiction to accept and file the complaint for full investigation.  If a complaint is accepted for investigation, the DFEH prepares the complaint on behalf of the complainant, serves the complaint on the respondent, and begins the investigatory process.  If the investigation does not show a violation of the law, the DFEH will close the case and suggest that the complainant proceed through a private attorney.  If the DFEH finds a violation, there is no limit on the damages it may impose.  The DFEH also files and prosecutes a select few complaints directly in civil court.

It is important to note that even if a case is fully investigated by the DFEH, the DFEH must maintain the role of a neutral fact-finder, and does not have the power to advocate for employees like an attorney.  For this reason, many employees find that it is more beneficial to file a lawsuit in civil court.  Employees also often have non-FEHA related claims which must be brought in civil court.

Why is the Department of Fair Employment and Housing Important in FEHA Cases?

The FEHA prohibits harassment and discrimination in employment based on numerous legally-protected classes including race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.  In order to file a civil lawsuit alleging violation of the FEHA, the plaintiff must file a timely and sufficient administrative complaint with the DFEH and receive a right-to-sue notice.  [Gov. Code §§12960, 12965(b).]  Under the FEHA, exhaustion of this administrative remedy is a jurisdictional prerequisite to resort to the court.  [Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.] Therefore, failure to obtain a right-to-sue notice from the DFEH before commencing suit in civil court is grounds for dismissal of an action for violation of the FEHA. [Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.]

An administrative complaint must be filed with the DFEH within three years of the date the unlawful practice occurred, or within 90 days thereafter if the employee first discovered the facts of the unlawful practice after expiration of the three-year period.  [Gov. Code § 12960.]

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This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.