Charge / Complaint Processing At the EEOC and the DFEH
1. Since you believe you have been discriminated or retaliated against on the basis of a protected characteristic, you should become aware of the following differences in how the two government agencies will handle your discrimination / retaliation issues.
The Federal and State Agencies: The federal agency is known as the U.S. Equal Employment Opportunity Commission (EEOC). The California state agency is known as the Dept. of Fair Employment & Housing (DFEH). The two agencies function differently. The persons who “investigate” your charge of discrimination at the EEOC are called “Investigators.”
2. Laws Enforced: The EEOC enforces the following laws: Title VII of the Civil Rights Act or “Title VII” (prohibits discrimination based on race, color, creed, national origin, or sex), the Age Discrimination in Employment Act or “ADEA” (prohibits discrimination based on age), the Americans with Disabilities Act or “ADA” (prohibits discrimination based on physical or mental disability), and the Equal Pay or “EPA” (prohibits paying one gender less than the other for work requiring skill, effort, and responsibility). In contrast, the DFEH enforces the Fair Employment & Housing Act (“FEHA”) which prohibits discrimination based on race, color, creed, national origin, ancestry, sex, age, disability, medical condition, genetics, sexual orientation, and gender identity. The DFEH does not enforce the California Equal Pay
3. Retaliation: All these laws also contain anti-retaliation language, so that you can also file a charge or a complaint of retaliation based on your having (a) filed or threatened to file a charge / complaint with the EEOC or DFEH, respectively, (b) complained about discrimination at work based on a protected characteristic, (c) participated in any type of investigation related to your, or someone else’s, charge / complaint, or (d) been associated with someone against whom the employer wants to discriminate because of that person’s protected characteristic.
4. Employers Covered: For the federal laws enforced by the EEOC, Title VII and the ADA cover employers having at least 15 employees, the ADEA covers employers having at least 20 employees, and the EPA covers employers with at least 2 employees. For the Fair Employment & Housing Act, all employers with at least 5 employees are covered with respect to acts of discrimination, and these same employers are covered as soon as they have 1 employee (or applicant) with respect to acts of unlawful harassment.
5. Difference Between Discrimination and Harassment: Both the federal laws and California law (FEHA) distinguish between conduct that is termed “discrimination” and conduct termed “harassment.” Sometimes conduct is defined by the courts as both discrimination and harassment, so the distinction in the two definitions is not always easy to make. Under the federal laws (Title VII, ADEA, and ADA), the employer (called the “respondent”) against whom the charge of discrimination is brought is always the company, union, or government employer.
6. Under the FEHA (California law), the employer can be the company, union, or government employer, and the employer may also be the individual who has harassed an employee.
Therefore, in most cases, the person filing the discrimination and harassment charge at the EEOC will only file one charge against the employer entity, whereas the person filing the discrimination and harassment complaints at the DFEH will often file one complaint against the employer, and other complaints against the individual harassers.
What the Complaint Is Called: The EEOC accepts “charges” of discrimination in California up to 300 days from the date of the discriminatory act. The DFEH accepts “complaints” of discrimination up to one year from the date of the discriminatory act. With the DFEH, if you discover the discrimination more than one year after it has occurred, you are allowed an additional three months (1 year 3 months total) to file your complaint of discrimination. At the EEOC, the person filing the charge is called the “charging party” (or “CP” for short), and at the DFEH, the person filing the complaint is called the “complainant.” The Right-to-Sue Letter: Both the EEOC and the DFEH retain the right, or ability, to sue the employer after you have filed your charge / complaint of discrimination.
However, the EEOC and DFEH give up their ability to sue the employer when they issue the “Right-to-Sue Letter” to you.
If you file your DFEH complaint of discrimination, and you immediately request your Right-to-Sue letter after informing the DFEH that you have an attorney, you are required to serve by certified mail a copy of that complaint of discrimination on the responding party whom you have accused. You accomplish this service within 60 days after receiving your Right-to-Sue letter. Because of these difficult service requirements, we advise that when you file your complaint with the DFEH, and you request your Right-to-Sue immediately, that you not indicate that you have an attorney representing you on the matter.
7. The Right-to-Sue Time Limits: The EEOC Right-to-Sue letter gives you 90 days from your receipt of the Right-to-Sue letter to file a lawsuit based on the allegations in your charge of discrimination. The DFEH Right-to-Sue letter gives you 1 year from the date on the face of the Right-to-Sue letter to file a lawsuit based on the allegations in your complaint of
discrimination. If the EEOC has already sent the DFEH Right-to-Sue letter to you, and the EEOC is still processing your charge of discrimination when the DFEH 1 year Right-to-Sue period runs out, then the law gives you an extension for filing a lawsuit using your DFEH Right to-Sue letter, that extension being until the period ends on the EEOC Right-to-Sue letter.
8. Neither the EEOC nor the DFEH can prosecute legal claims that you have against your employer that fall outside their laws. For example, neither the EEOC nor DFEH prosecutes wrongful termination claims. Neither prosecutes contract claims that allege your employer violated its own policies, procedures, handbook, or written agreement with you about how you would be treated on the job. Neither prosecutes personal injury (“tort”) claims which could include assault, battery, defamation, invasion of privacy, infliction of emotional distress, negligence, misrepresentation, and several other types of wrongful personal conduct. Both the EEOC and DFEH have limits, in certain cases, as to how much they can recover in money damages for you. Those limits are determined within the laws enforced by the EEOC and DFEH, and the two agencies have no say as to the money limits imposed by the laws.