If believe you have been subject to employment discrimination, harassment, wrongful termination, or retaliation at work, your path to justice can go one of two ways: Filing your own lawsuit or handing the case over the California Civil Rights Department. Sometimes, you opt for the latter and might still end up suing, but you could also skip the state’s involvement and go straight to court.
How do you decide which route to go?
You might be best served by scheduling a free consultation with at least one or possibly a couple of Los Angeles employment attorneys. Have the basic facts of your case ready to run through. They can’t give you legal advice unless/until they are hired, but they can probably provide you with information to help you make an informed choice about which option makes the most sense in your case. And these conversations are confidential.
Do I Have to File a Complaint With Human Resources?
In some situations, yes.
Doing so may not be necessary if the company refused to hire you. It also may not be necessary if you were discriminated against based on your position in a protected class (race, ethnicity, nationality, religion, disability, gender/gender identity, sexual orientation, age over 40, pregnancy or related condition, etc.).
However, it may depend on the particulars of your situation and whether part of your claim involves harassment and/or retaliation.
For certain types of claims, employers are only going to be liable if they were negligent, and they can only be negligent if they were aware (or should have been aware) that the harassment was happening AND they failed to take prompt and necessary action to address it.
Similarly, if you have a disability, your employer needs to be made aware of it so that they can provide reasonable accommodations. If those accommodations are not provided, it can be a good idea to report it to HR.
In those situations, reporting the problem to a direct supervisor and/or HR serves two purposes:
- Creates an opportunity for your employer to do the right and lawful thing.
- Establishes a paper trail if they do not.
Do I Have to File a Complaint With the EEOC or the CRD?
The Equal Employment Opportunity Commission (EEOC) investigates and enforces the majority of federal employment discrimination provisions. Conversely, it’s the California Civil Rights Department (CRD) that will take on most state-level employment discrimination cases.
Most employment claims will be at the state level – which can actually work in your favor, given that California tends to have much broader protections against discrimination at work compared to U.S. law. For instance, California protects against discrimination on the basis of sexual orientation and gender identity, whereas federal law does not (at least explicitly, though that’s been advocated for). Also state law is applicable to most employers with at least 5 workers or more, while federal laws usually apply only to those places with 15 or more employees. (Sexual harassment and discrimination protections apply no matter how big the workplace.)
In most cases, you’re required to exhaust all administrative remedies before you can proceed with filing a lawsuit against your employer for discrimination, retaliation, or wrongful termination. This provision could (though does not always) mean that you must file a CRD complaint first.
However, you can opt to have a private employment attorney file the CRD complaint on your behalf and then request an immediate “right to sue” from the agency, so that you do not have to wait for the completion of the administrative process before you proceed with your claim.
What’s the CRD’s Process for Employment Discrimination Claims?
One of the main reasons claimants bypass a CRD investigation has to do with time limits. The pre-complaint inquiry usually must be filed within three years of the last incident. (There are a few exceptions; namely if you didn’t know – and could not have known – that the discrimination was happening at the time.)
Once you file the CRD complaint, an investigator has to contact you within 60 days. They may decide after an initial collection of information they won’t handle the complaint, dismiss the claim, and give you the right to sue. If they do accept, the CRD will try to negotiate a resolution with your employer. If those negotiations are unsuccessful and a subsequent investigation reveals the employer violated anti-discrimination laws, the case gets forwarded to the agency’s legal division and it may proceed with the CRD pursuing the case on your behalf. Usually, they’ll try mediation first, and if not, they’ll sue for you. But if their investigation finds no violation, the case will be closed (at least on their end) – and you will obtain the “right to sue” allowing you to take your case to court.
When you receive the right to sue from the CRD, you’ll have one year to file a lawsuit on your own.
Note that federal discrimination complaints – those going through the EEOC – must be filed within just 180 days. The law does allow an extension if state law deadlines are longer, which in California they are – 300 days. So even for most federal complaints, you’ll have 300 days.
In either case, it’s not a good idea to “wait and see” if you think you have a claim. Start lining up your ducks early, and speak to an employment lawyer as soon as possible.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
Obtain a Right to Sue, California Civil Rights Department
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Are California Employers Required to Reimburse for Remote Office Expenses? April 4, 2023, Los Angeles California Employment Discrimination Lawyer Blog