1. What kinds of discrimination are against state law in California?
The California Fair Employment and Housing Act makes it illegal for an employer to discriminate because of 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 of any person..
Workplace discrimination against people predisposed to a genetic hereditary disease is also illegal, as is testing employees for genetic characteristics.
California law also addresses “English-only” policies. An employer cannot limit or prohibit employees from using any language in the workplace unless there is a business necessity for the restriction. Also, employees must be notified of the circumstances and times when language is restricted and the consequences of violating the restriction. See language discrimination.
California antidiscrimination law is often written or interpreted more broadly than federal law, especially in the areas of disability discrimination and sexual harassment. Unlike federal law, coworkers who are not supervisors can be sued and held personally responsible for unlawful workplace harassment. State law on disability discrimination differs in several ways from the federal Americans with Disabilities Act. The state law has: (1) broader definitions of physical disability, mental disability, and medical condition; (2) no requirement for a substantial limitation on a major life activity (a limitation is enough); and (3) limitation is determined without considering mitigating measures.
2. How do I file a discrimination claim in California?
In California, a discrimination claim can be filed either with the state administrative agency, the California Department of Fair Employment and Housing (DFEH) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
The California anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 5 and 14 employees (or one or more employees for harassment claims), you should file with the DFEH, as the EEOC enforces federal law, which only covers employers with 15 or more employees (20 or more employees for age discrimination claims). If your workplace has 15 or more employees (20 or more for age claims), you may file with either agency.
To file a claim with the DFEH, you must first contact the headquarters through the toll-free employment discrimination hotline before you can set up an appointment at a district office in person. More information about filing a claim with the DFEH can be found at http://www.dfeh.ca.gov.
Department of Fair Employment and Housing — Headquarters
Addresses for DFEH district offices are as follows:
Bakersfield District Office
Fresno District Office
Los Angeles District Office
Elk Grove Office
Bay Area Regional Office
To file a claim with the EEOC, contact the nearest EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC How To File page.
EEOC - Fresno Local Office
EEOC - San Diego Local Office
EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online. This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period. Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge. All of the EEOC offices now use the Digital Charge System. If you file on or after September 2, 2016, the Online Charge Status System is available for use. The system is not available for charges filed prior to this date or for charges filed with EEOC's state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.
3. What are my time deadlines?
Do not delay in contacting the DFEH or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the DFEH (or cross-file with the EEOC) within one year of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. However, if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file a discrimination claim with the state and federal administrative agencies.
4. What happens after I file a charge with the EEOC?
When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:
- Ask both you and the employer to take part in a mediation program
- Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
- Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction
If the EEOC decides to investigate your charge, they may interview witnesses and gather documents. Once the investigation is complete, they will let you and the employer know the result. If the EEOC decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”
How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).
5. How can I or my attorney pursue a claim in court in California?
If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit. As part of resolving your case, the administrative agency may require you to sign a release of your legal claims. If your case is not resolved by the DFEH or EEOC, you may need to pursue your claim in court.
A federal employment discrimination case cannot be heard in court without first going to the EEOC, as detailed above, and the EEOC dismisses your claim. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the DFEH.
California law does not limit or cap the compensatory (emotional pain and suffering) and punitive damages (damages which punish the employer), but they are capped under federal law. Since California state law is more favorable than federal law in many areas, including recoverable damages, attorney’s fee, burdens of proof, and special employer defenses, many California attorneys choose to file employment discrimination cases in state court under state law only. However, most cases may be brought in either state or federal court, using state or federal law.
The EEOC must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue,” before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice. You may also request a similar “right-to-sue” letter from DFEH to proceed to file your California claim. A lawsuit based on your state discrimination claim must be filed within one year of the DFEH dismissal.
These legal deadlines are called the “statute of limitations.” If you have received one of these agency dismissal notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.