Change Commences for the Department of Fair Employment and Housing Beginning January 1, 2013

Complaints alleging violation of the Fair Employment and Housing Act (“FEHA”) will be handled differently by the Department of Fair Employment and Housing (“DFEH”) beginning January 1, 2013.

After January 1, 2013, the process for individuals filing employment or housing charges will remain relatively the same.  An employee still begins the process by filing charges with the DFEH.  As was the case before, the DFEH will investigate the claim to determine whether cause exists to move the charge forward.  If a complainant wants a right-to-sue-letter, the DFEH may issue one at the complaint’s request.  This letter authorizes the complainant to seek relief in civil court rather than through the administrative channels of the DFEH.

How complaints are handled by the DFEH when no right-to-sue is requested and the DFEH, in its discretion, believes there is cause to move the complaint forward, has changed.  On June 27, 2012, Senate Bill 1038 was signed into law.  Previously, the Fair Employment and Housing Commission (FEHC) conducted administrative hearings on accusations issued by the DFEH following investigation by the DFEH. Effective January 1, 2013, the FEHC will be eliminated.

Instead, the DFEH will be free to proceed directly to filing a civil complaint in superior court.  Once in civil court, the DFEH will be able to seek remedies including reasonable attorneys’ fees, costs and punitive damages.  There is no cap on these damages.  Once a matter proceeds to civil court, the provisions of the California Code of Civil Procedure regarding discovery, law and motion, trial and appeal procedures apply.

In cases where the DFEH has filed in civil court, the Department will require all parties to participate in mandatory dispute resolution with the DFEH’s internal Dispute Resolution Division.  The dispute resolution will be conducted behind a “firewall” by the DFEH’s attorney mediators.  Additionally, the DFEH will also offer voluntary dispute resolution while the matter is being investigated or at the initial filing stage.  These services will be free of charge to the parties.

These changes apply to pending accusations before the former DFEH Commission.  For pending accusations where removal to court is not feasible, the DFEH will retain the services of the Office of Administrative Hearings to adjudicate the few, if any, remaining actions.  Employers should be aware that if the parties elect to proceed with removal to civil court, there is no longer a cap on damages, and if the DFEH wins, you may be responsible for attorneys’ fees and costs.  If the action is heard by the Office of Administrative Hearings, the same rules of procedure used previously by the FEHC still apply.

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