Preventing Workplace Harassment, Discrimination, and Retaliation

If the EEOC dismisses the charge, or does not take action on it within 180 days of receiving it, the EEOC must give the complainant a Right-To-Sue letter. The complainant will then have 90 days in which to file a civil lawsuit against the respondent named in the charge. 226

B. DFEH A DMINISTRATIVE R EMEDIES An employee seeking damages under the FEHA must file a claim with the DFEH within one year of the alleged unlawful conduct. 227 Once a complaint is filed, the DFEH either investigates the complaint itself or refers it to the EEOC for investigation. If the DFEH keeps the complaint, it will notify you that a complaint has been filed and will most likely ask you to provide information regarding the complaint.

The DFEH one-year statute of limitations stops running while an employee pursues an employer’s internal administrative process. 228

LCW Practice Advisor

If the DFEH keeps the complaint, investigates, and finds the complaint valid, it must then seek to resolve the complaint, in confidence, by conference, conciliation, and persuasion. If conciliation succeeds, the parties will reduce their resolution to writing and the DFEH will conduct a compliance review the following year. If the conciliation process fails, the DFEH may bring a civil action in the name of the Department on behalf of the person bringing the complaint. 229 Parties are required to undergo mandatory dispute resolution in the DFEH’s internal dispute resolution division before the DFEH will file a complaint. 230 The prevailing party, including the DFEH, may be awarded attorneys’ fees and costs, including expert witness fees. 231 If the DFEH does not bring a civil action within 150 days after the filing of a complaint, or if the DFEH decides earlier that no civil action will be brought, the DFEH must issue a Right-To-Sue letter to the complainant upon the complainant’s request. 232 If the complainant does not request a Right-To-Sue letter, then the DFEH will issue its Right-To-Sue letter when it finishes its investigation but no later than one year after it received the complaint. Only after receiving a Right-To-Sue letter may a complainant file a lawsuit based on the alleged harassment. The complainant must file the lawsuit, if at all, within one year from the date of the Right-To-Sue letter.

L IABILITY FOR M ONEY D AMAGES

Section 16

Successful plaintiffs cannot obtain punitive damages from public entity defendants but they can obtain such damages against individual public employees not acting in their official capacity. Moreover, successful plaintiffs may also be entitled to emotional distress damages, back-pay, front-pay, and any other actual damages they have suffered, as well as attorneys’ fees and pre-

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 58