WORKPLACE LAW - Employer in Santa Cruz
Question:
I recently received a copy of a right to sue notice issued to one of my employees by the Department of Fair Employment and Housing (DFEH). I am very concerned that I was not given the opportunity to provide any information to the DFEH before they issued this right to sue notice. Have my rights as an employer been violated?
Answer:
No, your rights as an employer have not been violated. The California Fair Employment and Housing Act (FEHA) requires that individuals exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a “right to sue notice” from the DFEH before filing a lawsuit under the FEHA. This can be accomplished in two ways.
The first is by filing a charge of discrimination, which is thereafter investigated by the DFEH. The investigation may include a written answer by the employer, the issuance of interrogations and subpoenas, witness interviews and depositions. The second is by submitting a request for an immediate right to sue notice. This procedure is for persons who have decided to proceed in court. Like a charge of discrimination, a request for an immediate right to sue notice must be filed within one year from the last act of discrimination or the employee may lose his/her right to file a lawsuit under the FEHA. The employee has one year from the issuance of the right to sue notice to file the lawsuit.
The DFEH discourages individuals from requesting an immediate right to sue notice unless they have been instructed to do so by an attorney. This is because obtaining the immediate right to sue notice waives the DFEH’s investigation into the complaint. In addition to waiving an investigation by the DFEH, individuals who request immediate right to sue notices waive their right to have their complaint filed with both the DFEH and the federal Equal Employment Opportunity Commission (EEOC). The benefit of dual filing is that aggrieved employees will receive a federal right to sue notice, which preserves their right to file their discrimination claim in the federal courts. Individuals that request an immediate DFEH right to sue notice must file a separate complaint with the EEOC if they wish to receive a EEOC right to sue notice. In addition, it is the DFEH’s policy not to process or reopen a complaint once a complaint has been closed at the complaint’s request.
Even though the DFEH discourages individuals from requesting an immediate right to sue notice (unless they have been so advised by an attorney) in the 2003/2004 fiscal year, 8,698 out of the 18,120 claims filed with the DFEH were disposed of in this fashion. It is unknown how many of those 8,698 claims resulted in lawsuits being filed against the employer. However, we do know that 16,119 employment discrimination cases seeking relief pursuant to the FEHA were filed throughout the State in the 2003/2004 fiscal year.- - - - - - - - - - - - - - - - - - - - - - - - - -
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