The way complaints for violation of the Fair Employment and Housing Act (“FEHA”) are processed and enforced by the Department of Fair Employment and Housing (“DFEH”) is about to undergo a significant transformation. Motivated by a desire to close a nearly $16 billion budget deficit by reducing duplication and maximizing efficiency within State government, Governor Brown signed SB 1038 which eliminates the Fair Employment and Housing Commission. The Commission is a quasi-judicial administrative agency that is currently responsible for administrative adjudication of FEHA complaints. The Commission also conducts mediations, engages in rulemaking, and provides public information and training.
As a result of the elimination of the Commission, a new arm of the DFEH, the Fair Employment and Housing Council, will handle aspects relating to rulemaking and holding public hearings on civil rights issues that were formerly administered by the Commission. In addition, the DFEH will now have the power to directly file complaints against employers in civil courts for FEHA violations.
Here is how the DFEH processes FEHA complaints under the current and new law.
Under the current law an aggrieved employee can choose to have the DFEH investigate a FEHA complaint on his or her behalf or request a “Right-to-Sue” letter in order to allow the employee to immediately sue the employer in court. If the DFEH investigates and finds that there is violation under FEHA, then the DFEH can file an accusation with Commission to which the employer has 90 days to respond. During this time, voluntary mediation services are offered for purposes of settlement negotiations. If the case is not settled, then the case is prosecuted before an Administrative Law Judge of the Commission. However, where emotional distress damages or administrative fines are being sought, the employer may elect to have the case removed to civil court.
Under the new law which goes into effect on January 1, 2013, the DFEH will now be able to file lawsuits directly with the court instead of having the claims adjudicated by the Commission. However, before filing a lawsuit, the DFEH will now require all parties to undergo mandatory dispute resolution free of charge in the DFEH’s Internal Dispute Resolution Division. As discussed above, mediation is currently a voluntary process. If the DFEH’s lawsuit is successful, the new law also authorizes courts to award the DFEH reasonable attorney fees and costs including expert witness fees. The DFEH will continue to offer pre-investigation voluntary mediation.
It is unclear at this time if these changes will affect the processing of FEHA complaints or spawn a spike in DFEH driven lawsuits in the courts. Consequently, all of our followers are encouraged to stay tuned to the blog for any updates in this evolving area.