Heads Up California Employers: A New Year Brings New Procedures for Investigating Employment Discrimination Complaints

Contributed by Carly Zuba

Beginning January 1, 2013, the California Fair Employment and Housing Act (FEHA) took on an entirely new look, thereby amending, repealing and adding to various provisions of FEHA.  These changes affect any employer with five or more employees working in California.

Notably, the new FEHA differs from the old FEHA in the following respects:

  • Elimination of the Fair Employment and Housing Commission (FEHC).
  • Creation of new authority for the Department of Fair Employment and Housing (DFEH) in enforcing FEHA and promulgating rules.  FEHC’s former regulatory and rulemaking functions were handed over to a seven-member Fair Employment and Housing Council within DFEH.  As such, employers should anticipate possible new regulations coming down the pike sometime this year.  Hopefully, some of these regulations will provide clarification to employers on some of the more complex areas of California employment discrimination law.  In addition, the council will conduct hearings on FEHA regulations and civil rights issues. Employers can participate in the rulemaking process by providing feedback and comments to the council. 
  • Authorization for DFEH to file cases directly in court.  If a discrimination claim before the DFEH is not resolved through mediation, conference, etc., DFEH can now bring a civil action against the employer on behalf of the Complainant, thereby standing in the place of the individual who originally brought the claim.  Employers will need to begin evaluating the differences between defending cases brought by DFEH versus cases brought by private attorneys. And, most significantly, the former caps on damages for claims brought to the FEHC have vanished – in contrast, there are essentially no caps on damages plaintiffs may recover in court.
  • Creation of mandatory dispute resolution procedure, before DFEH can proceed to court.  DFEH has a new Dispute Resolution Division.  Dispute resolution is now mandatory for all cases in which DFEH intends to file a civil action.  These dispute resolution services are provided to the parties free of charge.  The good news for employers and employees alike is that DFEH’s dispute resolution services boast an 80% settlement rate.
  • Ability for DFEH to collect attorneys’ fees and costs when it is the prevailing party in FEHA litigation.  If DFEH prevails in court, it can now obtain reasonable attorneys’ fees and costs, including but not limited to expert witness fees.  These fees and costs will be deposited into a Litigation Fund in the State Treasury. 

Of course, it is a bit too early to predict how these changes will truly affect the substance and volume of FEHA employment discrimination litigation.  Stay tuned, California employers…