Chapter Eight. So I Have a Case, What Now?
For sexual harassment and discrimination claims, before an employee can bring a lawsuit for damages, an employee must first exhaust administrative remedies by filing a claim with the California DFEH or the federal EEOC. The filing of the administrative claim is required by the statutes, FEHA and Title VII, as a necessary step before one can bring a lawsuit. The complaint to the California DFEH or to the federal EEOC must contain sufficient facts to support the eventual claims in the lawsuit for either harassment, discrimination, or retaliation in order for the claim in their lawsuit to survive legal scrutiny.
Under California FEHA, a complaint must be brought to the DFEH within three years from the date of the last incident of harassment or discrimination. This was just extended in 2020. Previously victims only had one year to file a complaint with the DFEH. Under Title VII, the victim has 180 days from the incident, but that period is extended to 300 days if the victim also institutes a complaint with the DFEH.
This chapter discusses the statutes of limitations and the manner in which the courts deal with continuing violations, such as where the incidents of sexual harassment occur over periods of years.
Many employers are now requiring employees to sign mandatory arbitration agreements, which can be enforceable for arbitration of sexual harassment claims if the employer follows all of the requirements for an arbitration agreement.
II. Consulting an Attorney
If after reading the material in the previous chapters you believe that you have a valid sexual harassment or discrimination claim, or you need clarification on whether your claim is viable, an appropriate next step is to consult an attorney who specializes in sexual harassment and discrimination.
It is best to get an attorney involved in your case as early as possible. Attorneys will often make a demand for settlement before the victim files an administrative complaint with the DFEH or EEOC. An attorney can help you prepare to file a complaint with the DFEH or EEOC to make sure that all of your legal claims are included. A sexual harassment attorney knows the process and can help you in this unfamiliar legal territory to protect your rights and choose the best strategy with which to move forward.
After attaining a right to sue letter from the EEOC or the DFEH, your attorney can then file a complaint with the appropriate court and can work on negotiating with the other side while preparing your case for litigation. An attorney will be able to advise you and come up with an effective plan of attack, depending on the unique facts of your case.
A. Administrative Hearings as a Possible Alternative to Litigation in Civil Court
After an interview with the complainant, the DFEH drafts a complaint that the complainant approves by signing. The complaint is then served to the employer and/or harassers. After the filing of any complaint alleging facts sufficient to constitute a FEHA violation, the DFEH is obligated to initiate an investigation.[i] However, due to practical restraints of time and resources, the DFEH is generally not able to do a thorough investigation.
The DFEH will close the case if the investigation does not show a violation of the law. If the DFEH finds facts sufficient for the complainant to proceed with a lawsuit, the DFEH will generally provide the complainant with a right to sue letter for a private lawsuit and then close its case. However, the DFEH and the EEOC occasionally, but not often, prosecute cases on behalf of victims in public administrative hearings.
The DFEH may, in its discretion, litigate a harassment case in a public administrative hearing before the Fair Employment and Housing Commission. In this process, the DFEH issues what is known as a written accusation. The respondent is required to answer the charges in the accusation at a hearing.[ii] If the victim claims emotional distress or administrative fines as damages, the responding employer and/or harasser may choose to have the case moved to a California Superior Court. Even if the respondent requests that the case be moved to civil court, the DFEH will still prosecute the case for the victim.[iii]
The DFEH advises that the advantages to litigating an employment discrimination case in Superior Court as opposed to relying on an administrative hearing are as follows:
DFEH’s authority to award damages for emotional distress and administrative fines is limited to a combination of $150,000 per Respondent.
The DFEH has no authority to award punitive damages.
Administrative fines are payable to the State General Fund, not the individual victim. [iv] The DFEH also advises that the potential benefit of relying on an administrative hearing instead of suing in court is that the process before the Fair Employment and Housing Commission may be faster and less expensive because law and motion practice and discovery is limited.
III. Immediate Next Steps
A. Administrative Agency Complaint Requirements
FEHA, at Government Code Section 12960,[v] sets forth the following statement explaining the information to be included in the complaint to the DFEH:
Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.
1. Exhaustion of Administrative Remedies
Before bringing a lawsuit for sexual harassment, discrimination, or retaliation, a victim must first exhaust the administrative process. To bring a lawsuit in California Superior Court, victims must exhaust the administrative remedies with the DFEH. To bring a lawsuit in federal court, victims must exhaust the administrative remedies with the EEOC.
The California Court of Appeal for the Sixth District[vi] explained:
Under California law, “an employee must exhaust the … administrative remedy” provided by [FEHA], by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) … and obtaining the DFEH’s notice of right to sue … “before bringing suit on a cause of action under the act or seeking the relief provided therein …”[vii] To exhaust his or her administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts[viii]…. We have recognized, in the context of [FEHA], that “the failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,” and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment….[ix]
CASES IN POINT: Sufficient Facts in Complaint
In Garcia v. Los Banos Unified School District,[x] the victim’s DFEH claim involved sexual harassment, failure to remedy harassment, and retaliation. The victim’s complaint included allegations not expressly stated in the DFEH claim, but the victim was found to have exhausted her administrative remedies regarding her claims because “the allegations in the complaint relate to matters that are either well within the scope of the DFEH’s actual investigation or an investigation that could have reasonably been expected to grow out of the charge of discrimination.”[xi]
In Martin v. Lockheed Missiles & Space Co.,[xii] the plaintiff, Noreen Martin, filed an administrative charge of age discrimination against defendant employer Lockheed with the EEOC. The EEOC then referred the charge to the DFEH and the DFEH gave Noreen a right to sue letter. Ten months later, Noreen filed an amended administrative charge with the EEOC, adding theories of sexual discrimination, sexual harassment, and retaliation. The EEOC in turn gave Noreen a right to sue letter. Noreen did not amend her administrative charge with the DFEH, and so the only claim before the DFEH was one of age discrimination. Noreen filed a lawsuit in California for state claims under FEHA.
The court in Martin said that if Noreen had wished to avail herself of state judicial remedies for her additional claims, it was essential that she undertake by reasonable means to make the additional claims known to the DFEH. In the court’s view she did not do so, and therefore the court found that she did not exhaust her state administrative remedies.
CASE IN POINT: Sufficiency of Filing For a Charge
In Federal Express Corporation v. Holowecki,[xiii] the plaintiffs in an age discrimination case filed an EEOC intake questionnaire and attached a signed affidavit describing in more detail the alleged discrimination, including a request that the EEOC take action to stop the discrimination. The EEOC did not treat these documents as a charge, and therefore the defendant employer was not made aware of the complaint until the lawsuit.
Under Title VII, a plaintiff must file a charge with the EEOC at least 60 days before filing a lawsuit. Title VII does not give a definition for a “charge” and therefore the United States Supreme Court had to decide whether the papers that the plaintiffs filed with the EEOC were sufficient to constitute a charge and allow them to sue in federal court. The United States Supreme Court found that in this case, the plaintiffs’ papers were sufficient to constitute a “charge,” and that the fact that the EEOC did not act on the papers is “unfortunate”, but nevertheless does not take away the plaintiffs’ rights to bring a lawsuit in federal court against the defendant employer.
B. Right to Sue Letter Required
As a prerequisite for a lawsuit for sexual harassment, a potential plaintiff is required to get a right to sue letter from either the DFEH or the EEOC.
Complaints filed with the DFEH are also filed with the EEOC if the matter falls within the EEOC’s jurisdiction. As a substantially equivalent agency, the EEOC usually accepts the DFEH’s findings.
C. CAUTION AHEAD: Statute of Limitations
If an administrative claim to the DFEH or the EEOC is not filed within the time period provided by the applicable statute of limitations, then the case is subject to being forever barred by the courts. If a sexual harassment victim does not file an administrative complaint within the required amount of time, then that victim will not be able to move forward with a lawsuit.
Complaints must be filed with the DFEH within three years from the date of the last incident of sexual harassment, which period may be extended up to 90 days if the alleged victim first obtained knowledge of the facts of the harassment after the expiration of the one year period from the date of the occurrence.[xiv]
Pursuant to Title VII,[xv] a victim of sexual harassment generally has 180 DAYS from the incident of harassment to file a charge with the EEOC, but this statute of limitations is extended to 300 days if the victim institutes proceedings with the DFEH or any other state or local agency that has the authority to grant or seek relief from unlawful employment practices.
After a claimant files an administrative complaint and after the claimant gets a right to sue letter, then the claimant must file a private civil lawsuit within the time specified in the right to sue letter, which is within one year of the date of a right to sue letter from the DFEH.
1. Continuing Violations Doctrine
If discrimination or harassment has taken place over a long period of time, a victim is able to sue for the entire course of the discrimination or harassment if the DFEH charge properly states a “continuing violation” and the charge is filed within the applicable statute of limitations period from the last incident of discrimination or harassment.
In Regents of University of California v. Superior Court,[xvi] the court found that the plaintiff must present evidence on summary judgment that there was an incident of discrimination which occurred within the statute of limitation period.
Case in point: Continuing Violations Doctrine Applied Where Victim Alleged 11-Year Pattern of Sexual Harassment
In Accardi v. Superior Court,[xvii] the plaintiff sued the defendant for 11 years of sexual harassment, which continued into the one year prior to her filing a charge with the DFEH. The Accardi court applied the continuing violations doctrine to allow the plaintiff to sue for damages for all 11 years worth of violations since the last incident occurred within the one year statute of limitations period.
In Accardi, the harasser started rumors about the plaintiff and her sexual behavior, gave her unfavorable work assignments and unfavorable work shifts, made complaints about her performance which were unfounded, excluded her from group activities, and told her that she had to deal with the “double standards” which existed for male and female police officers. There were also repeated condescending remarks about women in general made at the workplace and unwanted sexual advances made to the plaintiff.
Toward the end of the 11 year period of harassment, the demeaning conduct directed at the plaintiff was arguably nonsexual. However, the Accardi court concluded that the conduct that occurred during the final stages of plaintiff’s employment was part of a continuing course of sexual discrimination in a police department which did not want women in “a man’s job.” The court ruled that because this conduct was part of the harassment and it occurred within a year of the plaintiff’s filing a complaint, the statute of limitations was satisfied through the use of the continuing violations doctrine.
Case in point: Continuing Violations Doctrine and Retaliation
In Yanowitz v. L’Oreal USA, Inc.,[xviii] the California Supreme Court found that a plaintiff may invoke the continuing violations doctrine to rely upon allegedly retaliatory acts that occurred outside the limitations period when such acts are related to acts that occur within the limitations period prescribed by the FEHA. The court explains:
Here, the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation, and as we have concluded above, a series of separate retaliatory acts collectively may constitute an “adverse employment action” even if some or all of the acts might not be individually actionable…. If, however, we were to foreclose application of the continuing violation doctrine as a matter of law in retaliation cases, the statute of limitations would start running upon the happening of the first act of retaliation, even if that act would not be actionable standing alone. A rule that would force employees to bring actions for “discrete acts” of retaliation that have not yet become ripe for adjudication, and that the employee may not yet recognize as part of a pattern of retaliation, is fundamentally incompatible with the twin policy goals of encouraging informal resolution of disputes and avoiding premature lawsuits….Accordingly, foreclosing the application of the continuing violation doctrine in a case such as this one, where the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation would undermine the fundamental purpose of the FEHA.
IV. Contractual Arbitration
Contractual arbitration has become increasingly popular for employers over the years. Contractual arbitration occurs when two parties agree that if they have a dispute in the future, they will resolve the dispute through arbitration instead of through the court system.
An arbitration is a hearing in which the parties bring their dispute to an unbiased and neutral third person, who acts as a judge and makes a ruling. Both parties have an opportunity to be heard at the arbitration. In a contractual arbitration, the parties generally have agreed in advance to be bound by the award that the arbitrator issues after the hearing.
Many employers require new employees to sign arbitration agreements upon being hired. If you signed an employment agreement with an arbitration clause, then you may be forced to go to contractual arbitration instead of filing a lawsuit. However, there are rules which must be followed in order for you to be bound to arbitration, and an attorney can help you to assess your rights after reviewing the arbitration clause.
Case in point: Mandatory Arbitration Agreement Enforceable Only if Fairness Requirements Met
In Armendariz v. Foundation Health Psychcare Services, Inc.,[xix] the California Supreme Court approved the use of mandatory arbitration agreements by California employers, so long as certain requirements are met. According to the California Supreme Court, a mandatory arbitration agreement will not be enforceable on an employee unless the agreement:
(1) provides for neutral arbitrators,
(2) provides for more than minimal discovery,
(3) requires a written reward,
(4) provides for all of the types of relief that would otherwise be available in court, and
(5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.
Because the arbitration at issue in the case did not meet these requirements, it was held to be unenforceable.
Case in point: Consent to Arbitration Agreement Required
In 2007, in Mitri v. Arnel Management Co.,[xx] two former employees sued their former employer for sexual discrimination and harassment. In response to the lawsuit, the defendant company filed a motion with the court asking the court to force the plaintiffs to bring their claim through arbitration instead of with the court. The company argued that the plaintiffs had each signed a binding arbitration agreement. However, the company did not have copies of any such agreement or any proof that the plaintiffs had signed an arbitration agreement. The company argued that the plaintiffs agreed to arbitrate by continuing to work for the company after receiving the employee handbook, which contained an arbitration provision. The Court found that the arbitration clause in the handbook only worked to put employees on notice that they would be asked to sign a separate arbitration agreement.
California contract law applies to determine whether the parties formed a valid agreement to arbitrate.[xxi] The consent of the parties to a contract must be communicated to each other to be binding. The plaintiffs in this case never consented to arbitration, and so they were not bound to arbitration.
In order to bring a lawsuit for sexual harassment or discrimination, an employee must first get a right to sue letter from the DFEH or the EEOC. The process for getting a right to sue letter is to file a complaint with the DFEH or EEOC. In California, attorneys generally prefer that the victim file the complaint with the DFEH.
Because it is important that the complaint to the DFEH or the EEOC contains facts sufficient to support the potential claims for a lawsuit, it is advisable for a victim of sexual harassment to consult an attorney early in the process for advice about making the administrative claim.
The DFEH and the EEOC typically give appointment dates to employees who call them with claims. The appointments can often be many weeks away, so it is advisable for a claimant to leave sufficient lead time in order to avoid a statute of limitation problem, such as the FEHA rule that one must bring an administrative complaint within one year of the incident in order to get a right to sue letter.
Employees who are considering making claims should look at their employment agreements to see if they have signed a mandatory arbitration agreement with the employer. If there is an agreement for arbitration, the employee should bring that agreement to the attention of the attorney that the employee consults.
[i] Cal. Gov. Code § 12963.
[ii] Cal. Gov. Code § 12965.
[iii] Cal. Gov. Code § 12965 (c) (1).
[iv] Available at http://www.dfeh.ca.gov.
[v] Cal. Gov. Code § 12960 (b).
[vi] Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724.
[vii] Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724, citing Rojo v. Kliger (1990) 52 Cal. 3d 65, 88; Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal. 3d 211, 213-214; Denney v. Universal City Studios, Inc. (1992) 10 Cal. App. 4th 1226, 1232; Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116, 1121; Miller v. United Airlines, Inc. (1984) 174 Cal. App. 3d 878, 890.
[viii] Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724, citing Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116, 1121-1123.
[ix] Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724, citing Miller v. United Airlines, Inc. (1984) 174 Cal. App. 3d 878, 890.
[x] Garcia v. Los Banos Unified Sch. Dist. (2006) 418 F. Supp. 2d 1194.
[xi] Deering’s Government Code Annotated, 2008 Pocket Supplement, §12960, p. 184.
[xii] Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718.
[xiii] Federal Express Corporation v. Holowecki (February 27, 2008) No. 06-1322; 128 S. Ct. 1147.
[xiv] Cal. Gov. Code §12960.
[xv] Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-5 (e) (1).
[xvi] Regents of University of California v. Superior Court (1995) 33 Cal. App. 4th 1710, 1718-1720.
[xvii] Accardi v. Superior Court, (1993) 17 Cal. App. 4th 341, 348-351.
[xviii] Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028.
[xix] Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83.
[xx] Mitri v. Arnel Management Co. (2007) 157 Cal. App. 4th 1164.
[xxi] Romo v. Y-3 Holdings, Inc. (2001) 87 Cal. App. 4th 1153, 1158-1159.