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EEOC and DFEH Investigations

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March 2012 Legal Update

EEOC and California DFEH Investigations



By Christopher W. Olmsted

If the U.S. Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH) gives notice that your company has been charged with discrimination and is under investigation, are you prepared to respond? Employers should be aware of a few basic facts about these agencies, “just in case.”

1. What are the Fair Employment and Housing Commission and Department of Fair Employment and Housing?


DFEH. The Department of Fair Employment and Housing is a department within the California State and Consumer Services Agency. It is empowered to receive, investigate and conciliate complaints alleging unlawful practices under the Fair Employment and Housing Act and certain other California civil rights laws. These laws forbid discrimination in the workplace. The DFEH is supposed to serve as a neutral fact-finder, representing the State of California rather than the complaining party. However, employers should not assume that the DFEH is truly neutral. In fact, it will bring enforcement actions against employers.

EEOC. The Equal Employment Opportunity Commission is an independent federal agency created by Congress in 1964 to eradicate discrimination in employment. The various statutes enforced by the Commission prohibit employment discrimination on the basis of race, color, sex, national origin, religion, retaliation, age and disability. EEOC has authority to receive, initiate and investigate charges of discrimination filed against covered employers.

2. What is a “Right to Sue Letter”?


At some point before, during, after, or instead of a DFEH or EEOC investigation, the employee may request a right to sue letter from the agency. The agency letter is a prerequisite to filing a civil lawsuit. Once the letter is requested, the agency will no longer investigate the claim.

If an employee is interested in filing a civil lawsuit in court, he or she (or the lawyer) will usually request a right to sue letter right away.

There are deadlines for both requests. Under California law, with limited exceptions, a DFEH complaint/request for right to sue letter must be filed within one year from the last act of discrimination. In many cases (but not all) the “last act of discrimination” is termination of employment. After the DFEH issues a right to sue letter, the employee has one year from the date of the letter to file a civil lawsuit.

Under federal law, a charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights. This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days. Thus, in California, if the claim is also covered by the FEHA, then the filing deadline is 300 days.

3. What is a DFEH Complaint or EEOC Charge?


A complaint or a charge is a document generated by the agency alleging unlawful discrimination.

In cases where an employee initiates contact with the DFEH or EEOC, a representative will interview the employee and complete an intake questionnaire.

The intake document collects basic information about the employer, the alleged actors, and the type of discrimination. The employee is asked to describe in narrative fashion why the alleged unfair treatment was discrimination.

The DFEH representative will determine whether adequate cause exists for a violation of FEHA. If cause exists, the DFEH will prepare a complaint. The next step is service of notice of the complaint on the employer (see next section.)

Likewise, if the EEOC is satisfied that there are sufficient facts to allege a violation of one of these statutes, then a “Charge of Discrimination” must be prepared. This form may be prepared by the employee or his/her lawyer, or by the EEOC.

4. How does the Employer to respond?


DFEH. When served with the complaint, the employer is given a response form titled “Response to a Complaint of Discrimination-B.” The instructions request that the employer return the completed form within 30 days.

The response form seeks information about the employer and asks the employer to provide legitimate reasons for engaging in the alleged discriminatory conduct.

The instructions ask the employer to respond to each allegation in the complaint by either admitting them or refuting them with specific facts. The instructions provide an example: “For example, if an employee claims he or she was the only person punished for tardiness, a list of others who were tardy should be submitted. The list should show, for each individual, the number of tardies and the punishment, if any.”

EEOC. Again, the process with the EEOC is similar to that of the DFEH. Along with the Notice of Charge of Discrimination, the EEOC will usually request a response from the employer. Even if the EEOC does not request a response, it may be prudent to provide one. The EEOC will accept the response even if not requested. It may be important for the employer to provide information that may influence the outcome of the investigation.

Both the DFEH and EEOC may send the employer a number of written questions, and also request that the employer produce various types of records.

5. Tips For Responding To An EEOC or DFEH Complaint


Get legal counsel involved. Although you may not decide to get legal counsel involved in every internal investigation involving discrimination, if you receive an agency charge, you should most certainly consult with legal counsel. The stakes are too high to do anything less. The attorney-client privilege provides a confidential setting for frank discussions. Counsel will help identify the merits or weaknesses in the allegations, and also identify legal defenses. Counsel will also assist in drafting the response. Communications with the agency should be done either through counsel, or with counsel’s involvement. Communications should be done in writing, if possible.

Note: If counsel will represent the company, the agencies may require a letter of representation before agreeing to communicate with counsel.

Once the agency has such a letter, it should refrain from contacting the employer directly without first notifying counsel.

Conduct a prompt investigation. The employer may have already investigated the matter internally, if it had prior notice. If not, promptly investigate upon notice of the agency claim. Do not attempt to respond without completing the investigation. The internal investigation will enable the employer to evaluate the merits of the claim, and possibly gather information useful in its defense.

Gather and preserve evidence. Gathering evidence is naturally part of an investigation. Given the possibility of an agency enforcement action or a civil lawsuit, it is doubly important to preserve the evidence in the form of personnel records, employee interviews, and possibly witness statements.

Anticipate litigation and legal defenses. Again with counsel’s assistance, formulate a preliminary plan which will protect the company’s interests in the event of litigation.

Request Additional Time If Needed. The agencies are often flexible regarding the timing of a requested response. If you need more time, let the investigator know in advance.

6. What happens next?


Generally, the agency may conduct an investigation. In addition to gathering the employer’s response noted above, the investigator may talk to a number of witnesses, who are either identified by the complaining employee, or may be disclosed by the employer or through other means.

The DFEH may issue an “accusation” if it finds merit to the complaint. An accusation will lead to an administrative hearing before the Fair Employment and Housing Commission or a civil lawsuit.

With the EEOC, at the conclusion of the investigation, and in the absence of settlement or dismissal, the EEOC will make a determination as to whether reasonable cause exists to believe that the alleged unlawful practice took place. “Reasonable Cause” means that more likely than not, the charging party was discriminated against. Note that this does not mean that the agency has determined that discrimination in fact took place. It means that the EEOC believes that the case has merit. Where the investigator believes that reasonable cause exists, he or she will recommend that the EEOC make a cause determination.

The recommendation is reviewed internally at the EEOC, and either approved or rejected. Where the EEOC determines reasonable cause, it will issue a letter to the employer stating so. The letter will provide facts supporting the conclusion.

If the EEOC determines that no reasonable cause exists, it sends a letter so stating. In the same letter, the claimant is advised that he or she has 90 days to sue from the date of the letter.

If the EEOC issues a Letter of Determination, it is required to attempt to resolve the matter. This step must be taken before the EEOC or employee may proceed with a lawsuit. If the employer refuses to cooperate, then the EEOC need do nothing more. Even where the employer believes that no violation took place, it is advisable to participate in the conciliation. If a settlement is reached, a written agreement will be prepared and signed.

The process can be slow. According to the DFEH, investigations normally do not start until six to ten months after a complaint is filed. The EEOC process can also stretch on for months, or in some cases more than a year.

The matter is not otherwise resolved, the matter goes to litigation. The DFEH may bring the matter for an administrative hearing, which the employer has the option to transfer to court. The EEOC does not follow an administrative process. Rather, it files a lawsuit in federal court.

Conclusion


Not every DFEH or EEOC complaint will lead to a lawsuit, but it is best to respond to any complaint as if it could go in that direction. Understanding the process ahead of time is a good first step.

For more information on the DFEH investigation process, visit the agency’s website at this address: http://dfeh.ca.gov/­Complaints_FAQ.htm

For more information on the EEOC investigation process, visit the agency’s website at this address: http://www.eeoc.gov/­employers/­process.cfm

Employers should feel free to contact Chris Olmsted with any questions about the process or assistance with any claims. cwo@barkerolmsted.com

This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2012 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.






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