California law (named the Fair Employment and Housing Act or FEHA) prohibits discrimination, harassment and retaliation by employers against their employees. The law requires that employers “take reasonable steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace.”1
The Department of Fair Employment and Housing (DFEH) is the state’s enforcement agency related to the obligations prescribed under the FEHA.
The following article is a step by step guide on how to file a complaint with the DFEH in case of any harassing, discriminatory and/or retaliatory behavior in the workplace.
Step One: Is yours a valid claim under set California law or not?
If an employee feels that he or she has been discriminated against at their workplace, then filing a workplace discrimination complaint should be their first priority. To correctly determine whether they have a legal claim or not, it is imperative to first highlight the types of discrimination prescribed under State Law in California.
The California Fair Employment and Housing Act (FEHA) has made it illegal for employers to discriminate against workers based on
- Age (40 and above),
- Disability (Physical and mental, including HIV and AIDS),
- Genetic Information,
- Gender Expression,
- Marital Status,
- Medical Conditions (genetic characteristics, cancer or a record or history of cancer),
- Military or Veteran Status,
- National Origin (including language use2 and possession of a driver’s license issued to persons unable to prove their presence in the United States is authorized under federal law),
- Religion (includes religious dress and grooming practices),
- Sex/Gender (includes pregnancy, childbirth, breastfeeding and/or related medical conditions), and
- Sexual Orientation.
It is important to understand the nature and scope of the actions that might constitute a valid claim of workplace harassment, discrimination and/or retaliation.
A claim might be considered eligible under the ambit prescribed by these laws if the employee(s) has been subjected to any of the following unlawful employer behaviors due to his or her membership of one of the protected classes listed above.
- An employer or coworker exhibits verbal anger or aggression toward an employee (for example yelling);
- An employer or coworker exhibits non-verbal aggression toward an employee (for example: slamming things onto your desk in an aggressive manner);
- An employer or coworker communicates with an employee using offensive jokes or racial slurs;
- An employer or coworker belittles an employee based on their ideas, personal circumstances, work or opinions;
- An employer or coworker tampers with their personal belongings;
- An employer or coworker stalks, spies on, or pesters an employee;
- An employer or coworker threatens an employee with unwarranted punishment, termination, physical, emotional, or psychological abuse;
- An employer or superior uses unfair tactics to block an employee’s progression, growth, or advancement within the organization.
Like the harassment and discriminatory practices listed above, workplace retaliation is also unlawful if an employer punishes an employee for protected activities.
These include: reporting illegal conduct, refusing to engage in illegal conduct, reporting fraud, filing a wage claim with the California Labor Commissioner, filing discrimination lawsuits, complaining of workplace discrimination or harassment and assisting other employees in filing a lawsuit or complaint of illegal activity in the workplace.
Some examples of retaliatory actions are:
- Unfair disciplinary action
- Negative performance reviews
- Micromanagement shortly after filing a complaint
- Exclusion from project meetings that you’ve been working on
- Denial of ongoing training
- Denial of promotions
- Denial of raises
- Increased workload
- Unexpected termination or termination without notice.
If an employee is facing any one or more of the aforesaid hostile behaviors and the harassment or retaliation becomes persistent, continuing over time, disrupting the employee’s ability to perform his or her professional duties, or interfere with his or her career progress, then the employer may be violating Federal5 and California employment laws.
It is important to mention here that for claims of discrimination under the DFEH, an employer must have a minimum of five employees to be subjected to the aforementioned codes.
However, for claims of harassment and/or retaliation, an employer must only have one employee for the DFEH to get the relevant clauses enforced. Furthermore, it is important that the aggrieved employee files a claim within one year from the date of discrimination. In case the said employee is a minor, he/she may file within one year after their eighteenth birthday.
Once the criteria for a possible successful claim has been met, and the statute of limitations has been substantiated the next decision to be made is to decide whether the aggrieved employee will directly file a lawsuit with the Civil court instead of going through the process prescribed by the DFEH.
It is felt in general, that if an employee has a strong discrimination case, there is no reason to wait for the findings of the DFEH, and it is better to obtain an immediate right to sue letter from court through an attorney instead of waiting for what may sometimes be months for the Department’s investigation to take place.
However, if the distressed employee feels the need to stick with the procedure prescribed by the Department of Fair Employment and Housing then he/she would need to take the following steps.
Step 2: Complete the Pre-Complaint Inquiry.
The first step in filing a complaint with the DFEH is to fill out a form called a “pre-complaint inquiry.” The submission of this form initiates an intake interview with a department representative to determine whether a formal complaint will be accepted for investigation.
This inquiry can be filed online or the aggrieved employee can get a printed form and send it to the DFEH, via email or U.S. Mail, for processing. In order to fill out the form online the aggrieved employee will first need to create a free account on the DFEH’s interactive online portal called Houdini and follow the instructions provided therein.
However, if the employee decides to file his/her complaint using a printed form, they must download a copy of a blank “pre-complaint inquiry”, and then chose the form that matches their type of complaint.
Should an employee have more than one type of complaint, they must complete a Pre-Complaint Inquiry form for each type. Once the forms have been filled, they must be returned to DFEH by either emailing them to; firstname.lastname@example.org or by posting the completed forms to the DFEH’s headquarters at
2218 Kausen Drive
Elk Grove, CA 95758
Step 3: Gather Supporting Documents.
Once the pre-complaint inquiry has been submitted, the employee will be called by an investigator to go over the details of his or her situation within the next 60 days. The investigator will need the specific facts and any records regarding the incident(s) in question, alongside copies of any documents that support the employee’s complaint.
These may include but shall not be limited to; any correspondence between the employee and the employer, office memos or any other form of documentation that evidences discrimination or harassment in any way. It is imperative that complete cooperation is offered and full disclosure is made to the DFEH investigator.6
The DFEH will decide whether to investigate the case. If it does, the Department for Fair Employment and Housing will prepare a complaint form for the aggrieved employee’s signature. Once the signed complaint is returned, it will be delivered to the person or entity that the employee believes has discriminated against them (called the respondent).
The respondent is required to answer the complaint within 30 days of receiving it. Once an answer from the respondent is submitted the DFEH representative will review the response with the employee.
Step 4: Decide whether to engage for Dispute Resolution.
The Department for Fair Employment and Housing offers free dispute resolution amenities to encourage parties to resolve complaints in apposite cases. A voluntary resolution can be negotiated at any time during the complaint process.
When parties are unable to resolve a complaint, the DFEH continues an investigation to determine if a violation of California law occurred. If it finds there has been no violation the case is closed.
If, however, the DFEH finds there were plausible violations of the law, the case moves into DFEH’s Legal Division. Assuming the DFEH finds the complaint to be in favor of the employee and a violation of California law, it is mandatory for the parties to undergo mediation as prescribed by Government Code section 12965(a).7 Mediation is a confidential process facilitated by an impartial third party to help parties with resolution of the dispute in question.
The DFEH voluntary mediation is a free, cost-effective chance for parties to quickly resolve a DFEH complaint on their own terms, without going through the investigative process. “The Department employs a staff of experienced neutrals, whose exclusive role at the DFEH is to mediate complaints. The Department also provides mandatory dispute resolution services for investigated cases the DFEH intends to prosecute.”8
In case the mediation fails, the DFEH may file a lawsuit in court. However, if the Department of Fair Employment and Housing feels that the complaint is not substantial enough, the aggrieved employee may file a lawsuit independently.
It is important to note here that the DFEH does not issue a Right to Sue Letter until the end of their investigation. Once a ‘Right to Sue Letter’ has been issued, the employee has one year to file in civil court.
Step 5: What to do if a complaint has been filed with the DFEH against an employer?
It is important to understand that if an employer is served with a complaint, it is only after the DFEH has interviewed the person(s) who filed it and evaluated the information provided. The DFEH screens all initial claims and rejects those that do not allege violations of the laws the department administers.
It is important to understand at the very outset that the DFEH investigates all the facts pertaining to the case in question and encourages parties to resolve disputes as amicably as possible. Moreover, the DFEH strongly considers taking legal action if evidence supports a finding of discrimination and the dispute is not resolved.
If an employer is served with a complaint, they must respond within 30 days unless an extension has been granted. Although it is not required, a lawyer may be consulted. The employer may be interviewed by the DFEH and/or asked for records and documents which must be provided at the earliest.
If an employee feels like they have been subjected to employment discrimination, harassment and/or retaliation, it is best to always document the discrimination, or retaliation and follow the office’s internal policies for making a discrimination complaint at work. If help is required for the filing of a discrimination, harassment or retaliation complaint, it is safest to contact an expert employment attorney.
- Cal. Govt. Code §12940 (k)
- California law also protects your rights to use alternate languages aside from English in the workplace, unless it is a restricted business necessity to use English at work.
- Government Code Sections 12900 to 12996
- California Code of Regulations, Title 2, Sections 11000 to 11141
- The Federal body governing such claims is the Equal Employment Opportunity Commission. The EEOC enforces Title VII of the Civil Rights Act, which prohibits discrimination based on race and color, national origin, sex, and religion. They also enforce the Equal Pay Act which prohibits wage disparity based on sex. Discrimination based on disability, either physical or mental, is covered by the EEOC under the Americans with Disabilities Act. Finally, Furthermore, the EEOC enforces the ‘Age Discrimination in Employment Act’ which prohibits discrimination based on age.
- As per Government Code Section 12963 (a). After the filing of any complaint alleging facts sufficient to constitute a violation of any of the provisions of this part, the department shall make prompt investigation in connection therewith. (Amended by Stats. 1980, Ch. 1023.)
- §12965 (a) “… Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the department’s internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation…”