Many employees tolerate discriminatory, harassing and retaliatory environments at work until they decide that they no longer can, or until they no longer have a choice. It is at this point that a decision must be made what steps to take next.
The first point to note, is that in order to file a claim for one of the above stated causes of action in civil court, you must first exhaust your administrative remedies. Simply put, this means that you cannot file a claim in civil court until you have filed with an appropriate administrative agency like the Equal Employment Opportunity Commission (EEOC) or the Department of Fair Employment and Housing (DFEH). Then the question becomes which agency is the appropriate agency to bring your claim in.
The causes of action brought by these two agencies, the DFEH and EEOC, are fairly similar to each other, and so are the laws that they enforce; however, there are some notable differences.
The DFEH enforces the Fair Employment and Housing Act (FEHA) which prohibits discrimination and harassment based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave, or retaliation based on any of these protected categories.
The EEOC enforces Title VII of the Civil Rights Act, which prohibits discrimination based on race and color, national origin, sex, and religion. They also enforce the Equal Pay Act which prohibits wage disparity based on sex. Discrimination based on disability, either physical or mental, is covered by the EEOC under the Americans with Disabilities Act. Finally, the EEOC enforces the ‘Age Discrimination in Employment Act’ which prohibits discrimination based on age.
Key differences between these two administrative agencies begin with the fact that the DFEH does not enforce the Equal Pay Act. Further, the EEOC does not have coverage for sexual orientation discrimination, while the DFEH does. Both the DFEH and the EEOC contain exceptions for religious organizations in the enforcement of discrimination regulations; these exceptions are important to consider and differ between the agencies.
Number of Employees
Both the DFEH and EEOC have requirements for the minimum number of employees that an employer must have before the regulations apply.
For claims of discrimination under the DFEH, an employer must have at least five employees to be subject to their codes. However, for claims of harassment, an employer must only have one employee for the DFEH to enforce the discrimination statutes.
The EEOC will enforce federal laws contained in the ‘Equal Pay Act’ if the employer has at least two employees. The ‘Age Discrimination in Employment Act’ will be enforced if the employer has at least twenty employees. Finally, the EEOC will enforce ‘Title VII’ and the ‘Americans with Disabilities Act’ when employees number at least fifteen.
Obviously, the DFEH is more lenient in its requirements, and therefore would be the best starting point for wronged employees working for a smaller staff.
The timing to file a claim with the respective agencies is also different. Under the EEOC, an employee has 180 days from the date of discrimination to file with the EEOC. This deadline is extended to 300 days if there is a state or local agency that prohibits discrimination on the basis alleged in the EEOC claim. The only exception to this extension is for claims of age discrimination where there has to be a state law prohibiting age discrimination. In contrast, the DFEH allows employees to file a claim up to one year from the date of discrimination.
It is also important to note that the time limits are different for federal employees. Under the EEOC, a federal employee must file a claim within 45 days of the discriminatory act.
Right to Sue Letter
A Right to Sue Letter can be issued by either agency after the completion of its investigative process and is the prerequisite to filing a claim in civil court. Usually, the best course of action is to immediately request a ‘Right to Sue Letter’ due to the typically very long investigative period at these agencies, which command limited resources with which to investigate. If you file and immediately seek a ‘Right to Sue Letter’, you will have 60 days to serve the Defendant, if you indicate in the claim that you are represented by an attorney.
Based on an agreement between the agencies, claims filed with one agency are concurrently filed with the other agency. When you file with the EEOC, they will immediately issue you a DFEH ‘Right to Sue Letter’ and will issue a ‘Right to Sue Letter’ on their own behalf at the conclusion of their investigation. If you file with the DFEH, they do not issue a ‘Right to Sue Letter’ until the end of their investigation, at which time they inform the EEOC which then issues their own ‘Right to Sue Letter’.
Once you have been issued a ‘Right to Sue Letter’, the EEOC allows you 90 days from receipt to file a claim in civil court. The DFEH allows one year to file in civil court after receipt of the ‘Right to Sue Letter’.
The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with an attorney.