The Nuts & Bolts of the DFEH Administrative Process :The Nuts & Bolts of the DFEH Administrative Process Presented by Tim Muscat | Chief Counsel Annmarie Billotti | Associate Chief Deputy Director | Special Projects Counsel Department of Fair Employment and Housing www.dfeh.ca.gov


Fair Employment and Housing Act (FEHA) (Gov. Code, §12900, et seq.) Enforcement Agencies :Fair Employment and Housing Act (FEHA) (Gov. Code, §12900, et seq.) Enforcement Agencies The Department of Fair Employment and Housing (DFEH or Department) investigates, conciliates and prosecutes discrimination complaints alleging a violation of the FEHA. (Gov. Code, § 12930.) The Fair Employment and Housing Commission (FEHC or Commission) adjudicates discrimination complaints litigated by the DFEH and promulgates regulations. (Gov. Code, § 12935.)


Slide 3:Overview of the DFEH Administrative Process


Administrative Complaint :Administrative Complaint Any person claiming to be aggrieved by an alleged unlawful employment practice may file a verified complaint for investigation with the DFEH. (Gov. Code, §§ 12960, 12963.) Filing an administrative complaint with the DFEH within one year of an alleged unlawful practice (Gov. Code, § 12960, subd. (d)), and receipt of a right-to-sue (Gov. Code, § 12965, subd. (b)), are prerequisites to filing a civil action for employment discrimination under the FEHA.


Exhaustion of Administrative Remedy :Exhaustion of Administrative Remedy An aggrieved party may forgo having his or her complaint investigated by the DFEH and instead request an immediate right-to-sue from the Department. An immediate right-to-sue may be obtained from the DFEH online at www.dfeh.ca.gov. Only complainants represented by counsel are encouraged to obtain a right-to-sue online.


New Appointment & Intake Procedures :New Appointment & Intake Procedures Before the DFEH can accept a complaint for investigation, a complainant must undergo an intake interview. An appointment for an intake interview can be made online at www.dfeh.ca.gov or by calling 800-884-1684. Telephonic intake interviews have replaced in-person intake interviews.


New Case Grading System :New Case Grading System Complaints filed for investigation are processed in accordance with the new Case Grading System the DFEH instituted in 2009, which is modeled on the EEOC’s system. Previously, complaints were processed in the order in which they were filed. This new system allows the DFEH to identify early in the investigative process complex cases and cases that appear to have merit so all cases are processed more efficiently and expeditiously.


Re-establishment of DFEH Special Investigations Unit :Re-establishment of DFEH Special Investigations Unit Special unit dedicated to investigation of systemic or class complaints. Same investigative tools used to determine whether to proceed with filing an accusation but investigative period is longer.


Investigative Discovery :Investigative Discovery The DFEH has unilateral discovery rights during the investigative process which permit the DFEH to issue subpoenas (Gov. Code, § 129603.1), serve written interrogatories and requests for production of documents (Gov. Code, §§ 12963.2, 12963.4) and depose witnesses (Code, § 129603.3).


Court Order Compelling Response to Investigative Discovery :Court Order Compelling Response to Investigative Discovery If an individual or organization fails to comply with a subpoena, interrogatory, request for production, or examination under oath by refusing to respond fully or providing only objections, the DFEH may file a petition with a superior court for an order compelling compliance with the discovery, naming the individual or organization that failed to comply as the respondent. (Gov. Code §, 12963.5.)


Deadline to Issue Accusation Extended :Deadline to Issue Accusation Extended The period of time within which the Department may issue an accusation is extended by the length of time between the filing of the petition and the filing by the DFEH of a certified statement indicating the respondent's compliance with the court’s order compelling respondent to respond. (Gov. Code, §12963.5, subd. (f).)


Pre-Accusation Resolution Opportunities :Pre-Accusation Resolution Opportunities Volunteer Mediation Program Predetermination Settlement Negotiations Conciliation Conference – New Procedure: Conducted whenever possible with both the complainant and respondent present.


Accusation :Accusation If, after investigation, the DFEH determines there is sufficient evidence to prove a violation of the FEHA and the complaint has not been resolved, the DFEH files an accusation with the FEHC. (Gov. Code, §12965.) The respondent has a statutory right to a hearing within 90 days of the filing of the accusation, unless the respondent and the DFEH stipulate to a longer time frame. (Gov. Code, §§ 12968; Cal. Code Regs, tit. 2, § 7429, subd. (c) (1).)


Civil Litigation Opt-Out :Civil Litigation Opt-Out If an accusation includes a prayer for emotional distress damages or an administrative fine, within 30 days of service of the accusation the respondent may elect to transfer proceedings to court. (Gov. Code, § 12965, subd. (c)(1).) If no election to transfer is made and a settlement has not been reached, the Department will prosecute the accusation in a hearing before an administrative law judge employed by the Commission.


New DFEH Procedural Regulations :New DFEH Procedural Regulations Like the Commission, the DFEH has the authority to promulgate regulations necessary to carry out its functions and duties. (Gov. Code, § 12930, subd. (e).) The DFEH anticipates publishing notice of its proposed rulemaking in the California Regulatory Notice Register in December 2009. The notice will contain information about the dates, times and locations of hearings the DFEH anticipates conducting in 2010 to obtain stakeholder feedback on the Department’s proposed procedural regulations.


Slide 16:DFEH Special Investigations Unit And New Case Grading System


The Special Investigations Unit :The Special Investigations Unit SIU: A specialized investigations unit within the enforcement division that operates under the direction of DFEH’s Chief Counsel. Mission: Identify cases during investigation that represent ongoing patterns of discriminatory conduct by the same employer. Source of Case’s: DFEH’s existing 20,000 annual complaints from the public.


Identifying Potential SIU Cases :Identifying Potential SIU Cases Team Approach: Chief Counsel, District Administrators, individual consultants, and SIU Staff all reviewing DFEH complaints for potential SIU investigations. Typical Characteristics: Large employers that receive similar types of employment discrimination claims, and potentially unlawful employment practices that would impact a large number of California employees.


Potential SIU Case Identified – What Next? :Potential SIU Case Identified – What Next? SIU Staff Review: Reviewed by SIU for recommendation. SIU Staff Recommendation: If case recommend for SIU investigation by SIU staff, then referred to Chief Counsel. Decision by Chief Counsel: Chief Counsel makes final decision in consultation with Director.


Legal Standard for SIU Investigation :Legal Standard for SIU Investigation Government Code § 12961: Where an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group or class persons of which the aggrieved person filing the complaint is a member, or where such an unlawful practice raises questions of law or fact which are common to such a group or class, the aggrieved person or the director may file the complaint on behalf and as representative of such a group or class.


Notice to Employer :Notice to Employer Written Notice: Once the decision to proceed with an investigation as a group/class complaint, written notice will be provided to the employer. Contents of Notice: List the complainants who have filed with DFEH, identify the scope of the class, and describe the common questions of law and fact for the class.


Employer’s Response to Notice :Employer’s Response to Notice No formal response required. Still a matter under investigation. DFEH will use the same investigative tools to determine whether to proceed with filing an accusation.


What is Different with an SIU Investigation? :What is Different with an SIU Investigation? Priority Investigation for DFEH: Investigation will be assigned to SIU investigator who specializes in large group/class complaints Assigned Attorney: Given the importance of these investigations to DFEH, a staff attorney is assigned to review the progress of all SIU investigations. Two Year Investigation Period: Under Government Code section 12965 (a), DFEH’s time period for conducting the investigation is two years from the filing of the original DFEH complaint.


During Group/Class Investigation, What is SIU Looking For? :During Group/Class Investigation, What is SIU Looking For? Facts regarding the allegedly unlawful employment practice or policy. Facts regarding any applicable affirmative defense. Facts regarding the number and identity of employees allegedly harmed by practice or policy. Facts regarding possible economic or emotional distress damages of any harmed employee.


What Happens at End of SIU’s Group/Class Investigation :What Happens at End of SIU’s Group/Class Investigation SIU Recommendation: SIU makes a recommendation to the Chief Counsel on whether to proceed with an accusation. Conciliation Conference: A pre-filing settlement conference will be held with the employer. A DFEH staff attorney will likely attend this conference. Accusation: If no settlement is reached, a final review will be conducted by the Chief Counsel.


Advantages in Negotiating With DFEH :Advantages in Negotiating With DFEH DFEH will not pursue attorney’s fees. DFEH will not pursue administrative fine/punitive damages during pre-accusation settlement discussions. DFEH’s focus is on fairly ending any unlawful employment practice and properly compensating aggrieved workers.


Example of SIU Investigation – Case “A” - Facts of Case (Part I) :Example of SIU Investigation – Case “A” - Facts of Case (Part I) Complaint by Driver: Complainant alleged that he was denied a driving position because he did not pass a physical examination. Forced to Re-apply and Take Physical Exam: Complainant was a driver for this employer for four years. Employer contracted out its transportation department to a new employer, and all the current drivers were required to apply for driving positions with the new employer. Driver Had No Disability: Complainant was required to take a physical examination even though he was not disabled, and even though he was performing his job without any accommodations.


Example of SIU Investigation – Case “A” - Facts of Investigation (Part II) :Example of SIU Investigation – Case “A” - Facts of Investigation (Part II) Isokinetic Evaluation: The new employer’s test was allegedly designed to test the functionality of the driver’s muscle groups. Driver Failed the Test: Driver not offered position because he received a “medium” rating and on the test and his position a “medium – heavy” grade was required.


How was Case “A” Discovered :How was Case “A” Discovered Just one of our 20,000 individual cases coming up for accusation review.


Why is Case “A” with SIU? :Why is Case “A” with SIU? Affected Significant Number of Employees: In addition to complainant, there are at least 14 other drivers who were not rehired because they failed the test. On-Going Policy: The employer’s policy remains in existence. Large Employer: Big employer both within and outside California.


Why Does Case “A” Matter? :Why Does Case “A” Matter? Employers cannot prescreen out employees with disabilities. Even if an employee cannot perform a job’s essential function without a reasonable accommodation, the employee might be able to perform the job with a reasonable accommodation. National employers must follow the FEHA, even when the FEHA provides protections that are greater than those in other states.


The Goals of the DFEH Case Grading System :The Goals of the DFEH Case Grading System Focus on Merit: Implement an investigation process that identifies and fully investigates the most meritorious cases. End the previous “first in first out” system that did not consider the case’s relative merit. Move Cases Faster: Reduce consultant case loads by moving cases faster through the investigation process. Close non-merit cases sooner, and transfer merit cases to the Legal Division faster. Closer Involvement by Legal Division: Provide the litigating attorneys the ability to shape the cause cases prior to their transfer to the Legal Division.


Grading Cases at Intake :Grading Cases at Intake “A” Case: The case appears likely to result in a merit finding. Decision made at intake with concurrence of District Administrator or Supervisor. “B” Case: The case does not appear to be meritorious. Purpose for Grading at Intake: (1) Bring case to attention of Legal Division at early stage, (2) encourage Enforcement Division to move merit cases quickly at early stage, and (3) case will be re-graded after DFEH receives the employer response.


Two Type of “A” Cases :Two Type of “A” Cases A-1: A merit case that will warrant close review by the Legal Division. This designation is made by the District Office’s assigned attorney. Factors can include: (1) cases involving multiple complainants; (2) cases involving a large employer’s policy or practice that might be violating the FEHA rights of many employees; (3) cases involving potentially large damages; (4) cases involving an important/cutting edge legal issue; and (5) cases involving a great story that the assigned attorney wants to litigate. A-2: All other merit cases.


Two Type of “B” cases :Two Type of “B” cases B+: While not yet merit cases, they have potential and require further investigation. Perhaps a specific element is missing for the prima facie case, or an affirmative defense needs to be further explored. B-: After reviewing the employer’s response with the complainant, it appears that the allegations cannot be proven and further investigation is unwarranted.


Monthly Case Grading Meetings :Monthly Case Grading Meetings Attorney Assignment: Every employment District Office is assigned an attorney. The attorney meets with the District Office on a monthly basis. Group Meetings: The attorney, District Administrator, and Consultants meet as a group. Case Reviews: All designated A-1 cases are reviewed. The attorney directs any further investigation that is required for an A-1 case and sets the goal for when the case can be transferred to the Legal Division. The attorney is also involved in any settlement discussions regarding an A-1 case. Universal Participation: Every consultant will also present his or her “two or three best cases,” even if they are B cases. These reviews present excellent training for all the consultants. They can also result in a “B” case being upgraded to an “A.”


Initial Success of Case Grading System :Initial Success of Case Grading System Closing “B” cases faster. “A” cases transferring to Legal Division sooner. Assigned attorneys know the cases better when they draft the accusations. More referrals to the SIU. Fewer case rejections by Chief Counsel Better team work between the Legal and Enforcement Divisions.


Slide 38:Litigating Before the FEHC


FEHC’s Five Primary Activities :FEHC’s Five Primary Activities Administrative adjudication Mediations & Settlement Conferences Regulations Legislation Public information and training


Post-Accusation, Pre-Hearing Resolution Opportunities :Post-Accusation, Pre-Hearing Resolution Opportunities Initiating a mediation or settlement conference. (Cal. Code Regs., tit.2, § 7424.) Confidentiality Advocacy & persuasion


Prehearing Discovery :Prehearing Discovery Discovery is limited to a request for production of documents and names and addresses of witnesses. The DFEH and each respondent also may each take one deposition. (Cal. Code Regs., tit.2, § 7417, subd. (a), (b).) Any party whose discovery is not complied with may file with the Commission a motion to compel discovery. (Cal. Code Regs., tit.2, § 7417, subd. (c).)


Commission Regulations Governing Conduct of Hearings :Commission Regulations Governing Conduct of Hearings Authority: Gov. Code, §§ 12965-12972; Cal. Code Regs., tit.2, § 7400 et seq. Hearings, typically set for three days, are similar to bench trials in that they are formal legal proceedings to which rules of evidence apply; however, rules of evidence may be relaxed. (Cal. Code Regs., tit.2, § 7429, subd. (f).)


Prehearing Motions :Prehearing Motions Prehearing motions, except for discovery motions, are limited and not intended to decide substantive matters. (Cal. Code Regs., tit. 2, §§ 7419 [permitted pre-hearing motions]; 7422 [in limine motions]; Gov. Code, §§ 11455.20 & 12972; Parris v. Zolin (1996) 12 Cal.4th 839 [contempt]. There is no FEHC administrative litigation equivalent to a motion for summary judgment or summary adjudication.


Damages :Damages Economic Loss (Cal. Code Regs., tit. 2, § 7286.9). Mitigation (Cal. Code Regs., tit.2, § 7286.9, subd. (a)(1)(A)). Actual Damages for Emotional Distress Factors: Gov. Code, § 12970 Konig v. FEHC (2002) 28 Cal.4th 743


Damages :Damages Administrative Fines (Gov. Code, § 12970). Injunctive Relief and Other Equitable Relief (Cal. Code Regs., tit. 2, § 7286.9, subd. (a) (2)). Hiring Reinstatement Development of written policies and procedures Posting orders Training


Decisions, Writs & Appeals:Commissioners’ Role in Decisions :Decisions, Writs & Appeals:Commissioners’ Role in Decisions Adopt, Modify or Reject (Cal. Code Regs., tit. 2, § 7434). Reconsideration (Cal. Code Regs., tit. 2, § 7436). Designating Precedential Decisions (Cal. Code Regs., tit. 2, § 7435). Precedential decisions are published on the Commission’s website at www.fehc.ca.gov. All Commission decisions are also available on Westlaw, Lexis Nexus and JuriSearch.


Decisions, Writs & Appeals :Decisions, Writs & Appeals Judicial Review – Writs, Appeals & Enforcement (Cal. Code Regs., tit. 2, § 7434(g); C.C.P., § 1094.5; Gov. Code, § 11523).


Recent Developments at the Commission :Recent Developments at the Commission In SASCO Electric v. California Fair Employment and Housing Commission (Scherl) (2009) 176 Cal.App.4th 532, the California Court of Appeal upheld the decision of the Commission on a pregnancy discrimination case, which ordered a damage award in excess of $150,000 plus front wages ($125,000 plus front wages and a $25,000 administrative fine).  In DFEH v. Terra Linda Farms (Rivas), the FEHC ordered an agricultural business to pay $111,000 for refusing to rehire farm laborer who protested sexual harassment.  In DFEH v. Acosta Tacos (Chavez), the FEHC ordered a Los Angeles taqueria owner to pay $46,645 for firing new mom who used break time to breastfeed her baby in car. This is the first time a termination because of breast feeding is deemed sex discrimination under the FEHA.  In DFEH v. Hudson (Ford), the FEHC held in a sexual harassment case involving a 16-year-old that minors may bring an action until their 18th birthday no matter when the harm occurred.


Slide 49:Questions ? Thank you for attending! www.dfeh.ca.gov