Who is covered by the employment part of the Fair Employment and Housing Act?
The FEHA applies to public and private employers, labor organizations, apprentice training programs, employment agencies, and licensing boards. An employer can be one or more individuals, partnerships, corporations or companies. Employers of five or more are subject to the FEHA’s prohibition against employment discrimination. Harassment is prohibited in all workplaces, even those with only one employee or independent contractor on staff. “Employer” does not include the federal government or a non-profit religious association or corporation.
Who can file a complaint of employment discrimination?
Any applicant or employee—or an individual who works in a sheltered workshop or rehabilitation facility—can file an employment discrimination complaint with DFEH. This includes applicants for training programs leading to employment. An employee, applicant, unpaid intern, volunteer, or contractor may file a complaint of harassment.
What are the time limits for filing a complaint of employment discrimination?
In general, a complaint of employment discrimination must be filed within one year from the date an alleged discriminatory act occurred. You must file a complaint with DFEH even if you wish to file a case directly in court. If you wish to go to court, you can request an immediate “right to sue” notice when you file your complaint.
Must I be a U.S. citizen or legal permanent resident to file a complaint of employment discrimination?
No. The FEHA applies to California workers regardless of their citizenship or immigration status. DFEH does not inquire about citizenship or immigration status.
If I already filed a complaint with the Federal Equal Employment Opportunity Commission (EEOC), can I also file with DFEH?
If a complaint has been filed with EEOC, it will automatically be filed with DFEH as well, although the EEOC will usually investigate. If a complaint is filed with DFEH and alleges facts that would violate a law enforced by the EEOC, the complaint is automatically filed with EEOC, although DFEH will usually investigate. View the worksharing agreement between DFEH and EEOC.
How does a person file a complaint of employment discrimination?
Start by filing an “Intake Form.” You can find that form using any of the following methods:
- Online by creating an account and using our interactive California Civil Rights System, CCRS. When you begin, you will see instructions on how to open a free account. From then on you can use the service to communicate with DFEH.
- Call the Communication Center at 800-884-1684 (voice). If you are deaf or hard of hearing, please call 800-884-1684 (voice or 711 relay operator) or 800-700-2320 (TTY).
- Print and fill out a hard copy of the Intake Form that matches your issue and send it.
- Via U.S. mail to any of DFEH’s office locations.
- Via E-mail to firstname.lastname@example.org.
If you have a disability that prevents you from submitting a written pre-complaint form online, by mail or email, the DFEH can assist you by scribing your pre-complaint by phone or for individuals who communicate by American Sign Language through the relay system. Contact the Communication Center 800-884-1684 (voice or 711 relay operator) or 800-700-2320 (TTY) or by email to email@example.com to schedule an appointment.
How does DFEH conduct an investigation?
DFEH gathers evidence to determine if the complainant’s allegations can be proven. The individual filing the complaint is called a complainant and the employer is called a respondent. The investigation process includes gathering evidence from both sides, interviewing the parties and witnesses, and reviewing records. An investigation may be conducted on site and/or through telephone interviews. DFEH has the authority to take interviews under oath, issue subpoenas, and interrogatories and seek temporary restraining orders during the course of its investigation. All evidence gathered is analyzed to determine if a violation of the Fair Employment and Housing Act has occurred.
How long does it take DFEH to conduct an investigation?
In general, DFEH has up to one year from the date a DFEH complaint is filed to complete an investigation.
How long does DFEH retain investigation records?
DFEH retains records for 3 years after an investigation is closed.
Does DFEH represent complainants?
No. During the investigation, DFEH acts as an objective fact-finder, gathering evidence to determine whether the complainant’s allegations can be proven. DFEH does not represent either the complainant or the respondent.
If the investigation establishes that there is evidence to support the complainant’s allegations, and the parties do not reach a settlement, DFEH’s Legal Division reviews the case for potential litigation in court. DFEH has attorneys who prepare and file cases in court.
When DFEH decides to sue, it files a civil lawsuit in the name of the Department of Fair Employment and Housing against the employer. DFEH attorneys represent the Department, not the individual complainant. The complainant is a real party in interest in the lawsuit.
Although the assigned DFEH attorney is not the complainant’s personal legal advisor, the complainant’s interests are important in the litigation, and the complainant receives 100% of any remedies recovered, with the exception of attorney fees and costs. DFEH does not charge complainants attorney fees or expert witness fees, nor does it take a percentage of any award or settlement.
What remedies are available to people who file complaints of employment discrimination?
The remedies available for employment discrimination include:
- Back pay (past lost earnings)
- Front pay (future lost earnings)
- Out-of-pocket expenses
- Policy changes
- Reasonable accommodation(s)
- Damages for emotional distress
- Punitive damages
- Attorney’s fees and costs
What is a reasonable accommodation?
A reasonable accommodation is a change in the way things are done that helps employees or applicants with disabilities do a job.
Can Be Reasonable Accommodations
- Making premises accessible
- Reserved parking spaces
- Allowing service animals at work
- Job restructuring
- Modified work schedule
- Changing policies
- Extra training
- Working from home
- Leave of absence
- Reassignment to a vacant position
Not Reasonable Accommodations
- Lowering production standards
- Lengthy, indefinite leave of absence
- Creating a temporary job
What is the interactive process?
An employer and employee/applicant engage in the interactive process when they discuss and consider options for reasonable accommodations. An employer must begin this process if:
- An employee/applicant requests reasonable accommodation.
- The employer otherwise learns that an employee/applicant needs an accommodation.
- An employee with a disability has no medical leave left but still cannot return to work.
In the interactive process, the employer must consider any requested accommodation. If the employer rejects the requested accommodation, it must consider other options. When the disability or need for accommodation is not obvious, the employer can require the applicant/employee to provide medical records showing the need for accommodation, but not disclosing the nature of the disability. These medical records must remain confidential.
My employer refused to grant my accommodation because of “undue hardship.” What is “undue hardship?”
“Undue hardship” means an action that would require significant difficulty or expense when considered with factors such as the cost of the requested accommodation, the overall financial resources of the employer, the overall size of the business, and the type of business operations. An employer that denies a requested accommodation because of undue hardship must consider other possible accommodations.
For what reasons may an employee take leave under the California Family Rights Act (CFRA)?
An eligible employee may take a job-protected leave of absence for bonding after the birth of a child, for placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent, or spouse, and for the employee’s own serious health condition (except pregnancy-related conditions, which are covered by the federal Family Medical Leave Act (FMLA) or California’s Pregnancy Disability Leave (PDL) law.) The leave may total up to 12 workweeks in a 12-month period. It does not need to be taken in one continuous period of time.
Can an employer fire an employee who can’t return to work after using all 12 weeks of CFRA or FMLA leave?
Not if the employee used CFRA or FMLA leave for the employee’s own serious health condition. When an employee with a serious health condition can’t return to work after 12 weeks of CFRA or FMLA leave, the employer must initiate an interactive process to consider reasonable accommodations such as additional leave.
Can an employer fire an employee for being out sick?
Not if the employee (a) is disabled and entitled to leave or time off as a reasonable accommodation, or (b) has a “serious health condition” and qualifies for leave under CFRA or FMLA.
a. If the employee’s illness qualifies as a disability, the employee is generally entitled to leave or time off as a reasonable accommodation. Mild conditions that do not limit a major life activity, such as the common cold or flu, or minor cuts, bruises, or abrasions do not qualify as disabilities. But even temporary conditions, like a broken bone or pneumonia, qualify as disabilities when they limit a major life activity.
b. Sometimes an employee has a “serious health condition” as defined under the California Family Rights Act and qualifies for CFRA leave, but misses work without first requesting leave. If the need for leave is an emergency or otherwise unforeseeable and the employee provides notice of the need for leave as soon as practical, the employer may not deny CFRA leave or fire the employee for failing to provide advanced notice of the need for leave.
Which unfair employment practices can DFEH help with?
DFEH does not have jurisdiction over all workplace complaints. It can only help resolve employment complaints that involve discrimination or harassment based on a FEHA-protected characteristic such as race, sex, religion, national origin, or disability, for example, or reasonable accommodation, CFRA or PDL complaints.
DFEH Cannot Help With
- Recovering unpaid wages
- Rest break/meal period violations
- Workers’ compensation claims
- Unemployment insurance/paid family leave
- Collective bargaining agreement violations
Resource provided by https://www.dfeh.ca.gov