The Department of Fair Employment and Housing has just issued its first set of procedural regulations, available at https://tinyurl.com/DFEH-Regulations, and codified at 2 Cal. Code Regs. Section 10000 et seq. The new rules will govern how the agency accepts and processes complaints of unlawful discrimination, harassment and retaliation under the Fair Employment and Housing Act, Unruh Civil Rights Act, Ralph Act and the Disabled Persons Act.
Many of the regulations reflect the Department’s informal practices that are familiar to employment lawyers who practice before the Department. Here are some of the more significant provisions.
The regulations first address filing the administrative complaint, a prerequisite to filing suit under the FEHA. The Department accepts complaints electronically or on paper. Complaints must be filed within a year of the last allegedly unlawful practice.
Electronic complaints are not signed and are deemed filed when received electronically. Paper complaints must be signed and are considered filed when a signed complaint is received. However, the Department will stamp an unsigned complaint filed if “a complainant cannot sign a complaint for investigation before the applicable statute of limitations runs.”
The Department issues a “right to sue” notice, which is the administrative prerequisite to filing a lawsuit in court, upon request of a complainant or her lawyer. The new regulations require the Department to issue a right to sue within one year of the date the complaint was filed. The Department may proceed with its investigation even if it does not timely conclude it. However, the Department may not issue an “accusation” against the respondent after the one-year period ends.
The regulations specify that the Department’s Director may file a complaint on behalf of a group or class of aggrieved employees or applicants. The Director will consider whether the complaint alleges a pattern of discrimination, the size of the employer, and whether the Department wishes to use the case to set precedent.
The rules include guidelines regarding “class-based” claims. The Department evaluates whether the claims are amenable to class treatment, and may reject a class complaint while permitting the individual’s claim to proceed. The relevant factors include whether the alleged practice implicates a group or class of persons, efficiency, and the size of the workforce involved. Of note, the Department grants itself two years to investigate a class complaint before a right to sue letter must issue.
The Department will accept a complaint regarding allegations of unlawful conduct that occurred outside of California, “if a connection can be established between the complainant and some act of the respondent that occurred within California.” This standard is derived from a 1987 informal policy memorandum the Court of Appeal appeared to reject in Campbell v. Arco Marine, Inc., 42 Cal. App. 4th 1850, 1860 (1996) (holding FEHA “should not be construed to apply to nonresidents employed outside the state when the tortious conduct did not occur in California.”).
The regulations address the Department’s treatment of complainants who have signed releases of claims, typically as part of a settlement or separation agreement. The Department will dismiss a complaint only when the complainant “has validly waived” his or her right to file a complaint with the Department. The federal Equal Employment Opportunity Commission does not recognize waivers of the right to file a charge at all. The Department will investigate the bona fides of the release, including the consideration paid, the time permitted to consider the agreement, the understandability of the release, and whether an attorney was involved. In addition, the Department will not dismiss a claim that alleges a systemic practice, or presents an important legal issue. This provision may result in litigation to enforce releases, as the regulations appear to impose requirements that the courts do not.
The Department may amend an existing complaint before or after the one-year statute of limitations runs, in circumstances that the new rules specify. When the Department adds claims that involve the same “material facts” as the existing complaint, the new allegations “relate back” to the initial complaint. A retaliation claim based on the same facts previously alleged only as “discrimination” relates back to the original filing date as well.
The Department will not amend a complaint to include allegations that are time-barred or do not relate to the original claims alleged. Nor will the Department add claims or facts it would not have accepted at the intake stage. However, the regulations permit the Department to file a complaint “for filing purposes only” rather than investigation. The Department will include time-barred claims and non-germane facts in these complaints, which the Department will not investigate.
The new regulations include a section on the Department’s voluntary mediation program. Agreeing to mediate will toll the normal 30-day time period given to employers to respond to a complaint. However, if mediation fails or is declined, the response is due 21 days following that event.
The Department may issue subpoenas and discovery to help it obtain information during an investigation. The regulations specify the circumstances under which these tools are used.
The Department will assign “grades” and priority to certain complaints. Those due priority include claims of violence under the Ralph Act, complaints by a terminally ill complainant, and retaliation claims that are based on adverse actions occurring within 180 days of the complainant filing a charge or participating in a Department investigation. The Department prohibits disclosure of the grade or priority status of a complaint and will be kept “confidential” in the file.
There is a new regulation permitting complainants to “appeal” the dismissals of their complaints through several levels of the Department’s hierarchy. Respondents may complain to the Chief Counsel of the Department’s Legal Division.
The Department’s regulations address a number of additional matters and include analogous rules for processing housing discrimination complaints. The rules give practitioners needed guidance regarding the Department’s operations. In addition to these new regulations, though, the Department maintains a number of policy memoranda and other informal guidance here: https://tinyurl.com/DFEH-policies. It is unclear whether the Department will delete these resources to the extent the regulations address the same subject matter.