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EEOC and DFEIf you are considering a lawsuit against your employer, you may need to file a complaint with a government agency before you can file your complaint in court. In California, this process is called “exhaustion of administrative remedies.” You are required to exhaust administrative remedies before you sue your employer for discrimination, harassment, or certain types of retaliation.

There are two key administrative agencies that review and investigate discrimination, harassment, and retaliation. The Equal Employment Opportunity Commission, or EEOC, is a Federal agency that enforces Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Equal Pay Act. The Department of Fair Employment and Housing, or DFEH, is a State agency that enforces the Fair Employment and Housing Act (FEHA) and the California Family Rights Act (CFRA).

The process of filing an administrative complaint is similar whether you take it to the EEOC or the DFEH. However, it is important to understand some key differences between these agencies and the laws that they enforce.

Most importantly, California’s Fair Employment and Housing Act protects more classifications of employees from discrimination and harassment. FEHA covers race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military status, and veteran status.

Title VII, on the other hand, covers only race, color, national origin, sex, and religion. The ADA largely covers the same physical and mental disabilities that are covered by FEHA. While the EEOC has interpreted “sex” to include sexual orientation and gender identity, Title VII does not clearly support this interpretation, which has led to unfavorable court rulings upholding discrimination. However, in Bostock vs. Clayton County, the Supreme Court has settled the matter, ruling that to terminate an employee merely for being gay or transgender violates Title VII. Regardless, California’s longstanding legislation explicitly protecting gay and transgender employees means the DFEH has had more success in protecting their rights.

The EEOC and the DFEH also have different time requirements for filing a complaint. You have 3 years to file a complaint with the DFEH, but you only have 6-10 months to file a complaint with the EEOC.

No matter which agency you file your complaint with, it will automatically be dual-filed with the other agency. In some cases, your DFEH complaint may be investigated by the EEOC, or your EEOC complaint may be investigated by the DFEH. Generally, however, your complaint is processed by the agency you choose to file with.

When you file your complaint, you have two options: you can request an investigation, or you can ask for an immediate right-to-sue. If you request an investigation, the agency will review your complaint, contact your employer, and request information from both sides. The agency may invite the parties to mediation, reach a settlement with your employer, or sue your employer in court. However, the agency might also close your case without taking further action. If it does so, it will issue you a right-to-sue letter, which enables you to pursue your claim in court. If you ask for an immediate right-to-sue, the agency will close your case without any investigation and will issue your right-to-sue letter.

Once you have your right-to-sue, you face a new deadline. For violations of Federal Law, you generally have 90 days to file a lawsuit in Federal court. For violations of State Law, you have one year to file a lawsuit in State court. It is important to plan around these deadlines when you file a complaint or request a right-to-sue. It is advisable to find an employment attorney willing to take your case before you are issued your right-to-sue. Otherwise, you may not find one before your deadline to file a lawsuit. At Spencer Young Law, we specialize in every stage of discrimination, harassment, and retaliation cases. Call an employment attorney at Spencer Young Law today for a free consultation!

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