California DFEH's New Procedural Regulations Will Facilitate the Claims Process for Employees

In early 2010, California's Department of Fair Employment and Housing (DFEH) proposed a series of new procedural regulations to govern the receipt, investigation, and conciliation of administrative complaints received by the department. Following a series of public hearings and a public comment period, the final regulations now have been approved by the Office of Administrative Law and filed with the Secretary of State. They will go into effect on October 17, 2011, and are codified at Title 2, California Code of Regulations, sections 10000 through 10066.

According to the DFEH, these new regulations were meant to "capture and replace" its directives on the handling of administrative complaints, so as to formally adopt its procedures. In fact, however, these new regulations will change the DFEH's administrative procedures in several significant respects. The new procedures are part of a broader effort by the current head of the DFEH, Phyllis Cheng, to redirect the department's limited resources away from individual complaints and towards "high impact" cases of systemic discrimination.

Statutory Requirements for Filing an Administrative Complaint with the DFEH

Pursuant to California Government Code section 12960, a person claiming a violation of California's Fair Employment and Housing Act (FEHA) first must submit a complaint to the DFEH and exhaust his or her administrative remedies before filing a lawsuit in court. Once the claimant has exhausted his or her administrative remedies, the DFEH issues a "right-to-sue" letter permitting the claimant to proceed with a lawsuit.

By statute, the administrative complaint filed with the DFEH must be: (1) verified; (2) in writing; (3) comprised of facts that would give rise to a violation of FEHA; and (4) filed within one year of the date of the alleged violation.

Each of these basic statutory requirements is affected by the DFEH's new procedural regulations. Although the DFEH has no authority to modify statutory requirements, its new procedural regulations make it much easier for claimants to satisfy them. As a result, employers should expect more claimants to exhaust the administrative process with little, if any, DFEH involvement.

DFEH's New Procedural Regulations Ease the Way for Claimants

The changes lower the bar on exhausting administrative remedies. The new procedural regulations will make it much easier for claimants to file a complaint to initiate a DFEH investigation. Additionally, once a...