California
Information for Employees,
and Applicants for Employment
This page provides summary information that may be useful
to employees and applicants for employment. Please note that only
basic information is provided about each topic. This information
should be supplemented with information from other sources, government
agencies, and attorneys.
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If you feel that you may have experienced unlawful employment
discrimination, the following steps may be helpful to you.
a. Gather Information - Create a file, and gather information
regarding the suspected discrimination. The information may include
the relevant laws and regulations; the employer's employment policies;
the procedures to file a compaint with a government agency, and
the employer's internal complaint procedures; personnel records;
a list of witnesses; and, a log of important events. Visit a local
law library, and book store, to review books that contain information
about non-discrimination in employment.
b. Seek Advice - Consult with persons about the employment
problem, and your legal rights. Information may be available within
the employment environment from sources including the human resources
department, the employee assistance program, employee organizations,
unions, coworkers, and management. Many employers have an equal
employment opportunity office that can provide information to you. Employers
may also have in-house ombudspersons, employee hot-lines, dispute
resolution programs, and complaint processes.
Information may be available outside of
the employment environment from sources including government agencies,
employee rights organizations, and attorneys. Be aware that the
employment problem may involve other legal issues in addition
to employment discrimination. If you have a serious problem at work,
you should probably consult with an attorney who specializes in
employment law. You should also consult with an employment law
attorney if you file a discrimination complaint with an administrative agency.
c. Meet Statutory Time Limits - Learn the time limits that
you must meet if you decide to file an administrative complaint
with a government agency, and / or to pursue litigation. Make
notations of the deadlines on your calendars, and make additional
notations to ensure that you have sufficient lead time to meet
the deadlines. Be absolutely certain that you meet the time limits for filing
administrative and court complaints, or you may lose your rights
to pursue the matter further.
d. Decide On and Follow a Course of Action - Using the information
and advice you have obtained, decide on a course of action that
you will follow to address the suspected discrimination. The appropriate
course of action will depend on the circumstances of the suspected
discriminatory situation. It may be helpful to first try to resolve
the matter within the employment environment, by bringing the
matter to the attention of the human resources department,
or higher management. If that is not successful, you may decide
to file a complaint with the employer's internal complaint or
grievance system, if one exists. Recent court decisions regarding
sexual harassment indicate that employees should take
advantage of an employer's internal complaint system. Consider
keeping notes on the contacts that you make orally, and making
important contacts in writing. If you conclude that your efforts
within the employment environment are not successful, you may
decide to seek outside assistance by filing a complaint with a
government agency, or retaining an attorney to represent you.
Revise your plan of action as appropriate as you learn additional
information about your case.
e. Identify the Desired Resolution - Using the information
and advice you have obtained, decide on what you desire as a remedy
for the suspected discrimination. The appropriate resolution will
depend on the circumstances of the suspected discriminatory situation.
Be prepared to explain, and justify, the resolution that you desire.
Revise the desired resolution as appropriate as you learn additional
information about the case. Be creative when thinking of possible
resolutions. Recognize that compromise may be necessary to achieve
a successful resolution.
Equal employment opportunity laws impose various time limits
that must be met. If prescribed time limits are not met, cases
may be dismissed by government agencies, and the courts. The information
presented here describes some, but not all, of the time limits.
Other employment laws impose additional time limits. To obtain
more information about time limits and complaint procedures, contact
other sources, government agencies, or attorneys.
In California, which has a state fair employment practices
("FEP") agency approved by the U.S. Equal Employment
Opportunity Commission (EEOC), complaints of employment discrimination
must usually be filed in writing with the EEOC within 300 days
of the alleged discrimination (42 USC 2000e-5(e)). (In states that do not
have an FEP agency, a 180-day time limit may apply.)
A complaint of employment discrimination usually has to be
filed with the EEOC, or the California Department of Fair Employment
and Housing, and a Notice of Right to Sue issued, before
litigation is commenced in court. This is not true for litigation
under the federal Equal Pay Act which may be filed directly in
court within two years of the alleged discrimination (or three
years for a "willful" violation)(29 USC 216(c), 255(a)),
and litigation under post-Civil War civil rights statutes like
42 USC Sections 1981 and 1983, which may be filed within the statute
of limitations for personal injury actions in the state where
the case is filed (effective 1-1-03 that is two years in California
(CCP 335.1), and one year before that date). Other
procedures and time
limits apply through other laws. Consult with an attorney if
you have questions about time limits to file complaints.
If the EEOC declines to take a complaint, a complainant may
attempt to file the complaint by submitting a signed letter to
the EEOC within the prescribed time period, stating the name and
address of the complainant and the employer, employment agency,
or labor organization; the approximate number of workers employed
by the employer; the date of the alleged discrimination; the basis
of the alleged discrimination (e.g., race, national origin, sex,
age, religion, disability, retaliation); and, a description of
the alleged discriminatory actions (42 USC 2000-e-5(b); 29 CFR
1601.9 and 1601.12). The EEOC may still dismiss the complaint,
but it should do so by issuing a Notice of Right to Sue, which
allows the complainant to file suit in Federal District Court.
If the EEOC issues a Notice of Right to Sue on a complaint,
that action usually ends the EEOC's administrative processing
of the complaint, and the complainant has only 90 days to file suit
in Federal District Court (29 CFR 1601.28(e)).
Attorney referral services may be provided by government agencies,
bar associations, and other organizations. The EEOC field offices
maintain attorney referral lists that are available to the public.
If a complainant is unable to find an attorney who will file suit
within the 90-day period, (s)he may attempt to file suit in Federal
District Court, and ask the court to appoint an attorney. Some
courts may provide limited assistance to unrepresented complainants.
For example, the Office of the Clerk of the Federal District Court
for the Northern District of California will provide a package
of forms to assist a complainant to file suit without an attorney.
However, it is difficult to pursue litigation without an attorney,
and the court may be unable to appoint an attorney for every unrepresented
complainant. Also, there may be advantages for complainants to
have their cases filed in state court, instead of federal court.
Different complaint-filing time limits and administrative
procedures apply to most civilian employees and applicants of
the federal government, who must first discuss their discrimination
complaints with equal employment opportunity counselors of the
employing agency within 45 days of the alleged discrimination.
The counselors should inform the employees and applicants of subsequent
time limits that they must meet.
In California, complaints of employment discrimination usually
must be filed with the California Department of Fair Employment
and Housing (CDFEH) within one year of the alleged discrimination
(Cal. Govt. Code 12960). In California, a Right to Sue Letter
usually has to be issued by the CDFEH before court action is commenced
under the Fair Employment and Housing Act (Cal. Govt. Code 12900),
within one year of issuance of issuance of the Right to Sue Letter.
Some court decisions have permitted "tolling" of the expiration
of the period to file employment discrimination litigation for the period
of time that the same complaint was being processed by another fair
employment practices agency. Consult an attorney if you have questions
about time limits.
The time limits to file discrimination complaints may be extended
in some circumstances, such as "continuing violations." If you have
questions concerning the timeliness
of a complaint, you should consult with an attorney.
In California, effective January 1, 2003, a cause of action for tortious termination in violation of public
policy is governed by the two-year statute of limitations in CCP
Section 331.5 (a one-year time limit applies before 1-1-03). In California, actions for employment-related torts like libel, slander
and false imprisonment are subject to the one-year limitation under CCP Section 340. You
should consult with an attorney to obtain information about the time
limits that apply to your situation.
You will make better decisions concerning your employment
situation, if you consider the practical realities and difficulties
in pursuing an employment discrimination case.
Some complainants may develop unrealistic expectations about
the monetary value of their cases, as a result of publicity about
other cases where large amounts of money were awarded. What they
may not consider adequately is that for each case where a large
amount of money was won, there were more cases where small amounts
of money were recovered, or the cases were unsuccessful.
Some complainants may expect employers to settle discrimination
cases quickly due to fear of publicity. Some employers are not concerned
about publicity unless it is a unusual case. Some complainants may
expect employers to settle cases quickly if they involve an attorney.
Some employers believe
that if they settle discrimination cases easily, it will encourage
more employees to complain, so they will spend more
money to defend a case than it would cost to settle. Complainants should
consider that litigation is expensive, and most attorneys expect that
the complainants cover the costs of litigation. Some complainants may not
be able to find attorneys who will take their cases on contingency
fee agreements.
Another important consideration is that litigation is very stressful.
It commonly occurs in litigation that defendants present a "vigorous
defense" of the claim, that may include efforts to closely scrutinize
the complainant, looking for information to use against them in the case,
including indications of alleged wrong-doing that could be used to limit
recovery or reinstatment. The defendant will request a great deal of information
from the complainant, and probably depose the complainant and other witnesses.
If damages are claimed for emotional distress, the defendants will closely
evaluate the complainant's emotional condition, and possibly seek to have the
complainant subjected to a mental examination. The litigation process often lasts
for a year or longer. Litigation is usually an unpleasant and difficult
experience for the parties.
Some complainants may not adequately consider what may be
legitimate, non-discriminatory reasons for the employment actions
that they challenge. In most cases, there are facts and arguments
to support both of the opposing parties, and the issues are ultimately
decided by judges or juries who may reach different conclusions.
It is difficult to predict with certainty how particular cases
will be decided in court. Even after much evidence is developed
about a case, it is still difficult to predict the outcome of a trial.
This reality check is not intended to discourage complainants
from pursuing discrimination cases, but rather is intended to
encourage them to carefully and realistically evaluate all aspects
of their cases, including strengths and weaknesses, and monetary
value. Since complainants are usually under duress from their
employment problems, it is advisable for them to consult with
other persons about the best course of action to follow. If complainants
have a serious employment problem, they should probably consult
with an employment law attorney.
Sometimes complainants use "self-help" techniques
that they think will help their discrimination cases, but which
actually hurt their cases later. For example, courts have held
that some complainants who have falsified employment records,
or taken restricted employment records without authorization,
may not be entitled to full damages or reinstatement. Other complainants
have tape recorded conversations not knowing that the recordings
may be inadmissible as evidence if they were made in violation
of law. In California it is unlawful to record a confidential
conversation without the permission of all participants (Cal.
Penal Code 632). Complainants should be cautious about using questionable
"self-help" techniques. Complainants should consider
other ways to preserve evidence, and seek legal advice if they
feel that the evidence is important.
Evidence that is relevant in a discrimination case
may usually be discovered by the opposing party in litigation,
and in possibly through administrative proceedings. This evidence may
include things that a
party may not expect to be disclosed, like notes, calendars, electronic
mail, and computer files. The scope of questioning in depositions
is also broad. There are privileges that may protect some evidence
from disclosure; for example, communications with attorneys that
are covered by the attorney-client privilege. Complainants should
consider seeking legal advice if they have questions about evidence.
Equal employment opportunity laws provide that employers may
not retaliate because a person files a discrimination complaint;
participates, assists or testifies in an investigation or litigation;
or, opposes discriminatory employment practices (e.g., 42 USC
2000e-3; 29 USC 215(a)(3)). Alleged retaliation may include actions
like discharge, demotion, harassment, or negative employment references.
Complainants who experience retaliation should contact the appropriate
enforcement agencies, because the agencies will probably require
the filing of an additional retaliation complaint within the prescribed
time limit. Complainants have to file the retaliation complaint with
the enforcement agency to protect their litigation rights.
Government agencies have staff who will answer questions from
the public. These agencies are a good source of information about
the laws that they administer. Their staff are busy, so you may
have to continue to call until you reach someone who will answer
your questions. Look for their telephone numbers in the white
pages government section of the front of telephone books. There
are an increasing number of helpful government agency websites
that include contact information.
Other government agencies have web sites that you may reach
through the links on the Government Agencies and Programs page
of this web site.