PART ONE: What you need to know, agency scope and authority, and available damages
by Cady Sartorius
Are you being sexually harassed at work? Have you experienced sex-based or racial discrimination at the hands of your supervisor? Did your employer retaliate against you because you need workplace accommodations for your disability? Whenever someone in California experiences harassment or discrimination at work, they are barred from filing a lawsuit in civil court unless and until they first file a claim with the Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC). But choosing which agency to file with is not very straightforward.
The DFEH is a California-based agency charged with enforcing various California civil rights laws. In the employment context, those laws are most notably the Fair Employment and Housing Act (FEHA) and the California Family Rights Act (CFRA).
The EEOC tackles the enforcement of federal laws against employment discrimination. These include Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act (GINA).
Attorneys at the California Civil Rights Law Group can help you navigate this decision, but this three-part series of blog posts can help get you started. Here are some of the questions and notable differences we will explore to guide you in choosing the best course of action for you:
- What are the investigative and prosecutorial powers of each agency?
- Are my damages limited depending on which agency I file with?
- How many employees must my company have to be subject to the federal and state laws?
- What are the protected bases under the laws that each agency deals with?
- Is there a difference in what I can do with a Right to Sue letter from each agency?
- What are the timing restrictions for when I need to file with each agency?
- What are the timing restrictions for when I need to file my civil lawsuit after getting a Right to Sue letter from one of the agencies?
- What do I need to prepare before filing with the EEOC or DFEH, or calling an attorney?
- Are there any other agencies I need to file with to satisfy the “administrative exhaustion” requirement?
- Ultimately, is it best for me to file with the EEOC, the DFEH, or some other agency?
- Should I file on my own, or should I get an employment attorney like those at the California Civil Rights Law Group?
The Investigation and Right-to-Sue
Both the EEOC and the DFEH have limited resources, so one of the primary functions of both agencies is to issue “right-to-sue” letters. Receipt of one of these notices satisfies the “administrative exhaustion” rule and gives the claimant the go-ahead to file a civil lawsuit.
Sometimes the agencies engage in an investigative process first. This can be long and drawn-out, and often less effective or efficient than filing a private lawsuit. But the investigators have access to information that private attorneys cannot get before filing a formal lawsuit, which may make the wait worthwhile. Also, when an employee makes an initial showing of a claim, EEOC encourages mediation and offers the option to get a written response from your employer regarding the workplace conduct that you believe to be discriminatory, which can inform you and your future attorney about the strength of your case.
But claimants should understand that the EEOC will not act as the employee’s representative during the investigation and before reaching a determination in the claim; they adopt a neutral and fair investigative and prosecutorial stance. If the EEOC does not find enough facts to support the complaint, it will issue a right-to-sue notice, which allows the party to move forward with private action.
If the EEOC finds merit to the claim in the course of an investigation, the EEOC will first work to settle the viable claims. If unsuccessful, they can prosecute the employer or sue on behalf of an individual as a party in interest, though they may still choose not to—both the DFEH and the EEOC will balance the rights of the individuals affected and the interests of the public against their not budgetary and resource constraints.
If the DFEH is the investigating agency, they will draft a formal complaint following an investigation, which they will also file with the EEOC. The DFEH can then litigate the case at a public Fair Employment and Housing Commission (FEHC) hearing, or move the case to civil court if seeking emotional distress damages or administrative fines. The DFEH will litigate for the complainant as the real party in interest.
Power and Authority
The EEOC can investigate a charge and has the power to issue subpoenas in connection with an investigation. They then have the authority to remedy certain unlawful discriminatory practices. For instance, they can sue an employer to enjoin further violations (in spite of enforceable and binding arbitration agreements). The EEOC can also obtain monetary damages for wronged individuals, and even seek civil action against an employer if they are unable to settle a case.
The DFEH also holds accusatory, investigatory, and prosecutor powers. Like the EEOC, the DFEH can issue subpoenas, take depositions, serve written interrogatories, and pursue a civil suit. The DFEH also has the authority to issue cease-and-desist orders, award wage violation damages, order payment for emotional distress damages, and issue administrative fines.
Title VII does permit compensatory damage awards for emotional distress (emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, etc.). The cap on compensatory damages for Title VII claims against companies with over 500 employees filed with the EEOC is $300,000. But Title VII also authorizes recovery for lost wages, future lost wages and other out-of-pocket expenses that a discriminatory employment decision may cause, such as medical expenses and moving costs. These damages are recoverable in full and not subject to a cap. Title VII violations of intentional discrimination by nongovernmental entities—including disparate treatment claims—are also subject to punitive damages.
Both compensatory and punitive damages are also available under FEHA, though there is a $150,000 cap for emotional distress damages. A FEHC ruling may also award expert witness fees and reasonable attorney fees to the prevailing party, though this is largely discretionary; FEHC will not usually order a losing plaintiff to pay the employer’s attorney fees and costs. This is similar with the EEOC, which will never require that a plaintiff pay for the attorney fees and costs. If either agency sues on your behalf and does not prevail in litigation, the respective agency covers all of the costs of the suit.
Note that these limits on damages do not apply to private lawsuits, which is another reason why it may behoove someone with strong discrimination or harassment claims to call a firm like the California Civil Rights Law Group to retain an attorney.
The information in this blog is provided for general informational purposes only and is 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 need legal advice, please consult with an attorney like those at the California Civil Rights Law Group.
If you think you experienced sexual harassment, race-based discrimination, retaliation, or other illegal treatment in your work place, reach out to one of our San Francisco Bay Area attorneys with expertise in these issues. No two situations are alike, but with offices in Oakland and San Anselmo, our attorneys make it easy to have a confidential consultation on any potential civil rights violations that you may be facing.