Articles: Basic Filing Deadlines for California Employment Discrimination Cases
Originally published in California Civil Litigation Reporter (September 1996), by Farley J. Neuman and Charles E. Perkins.
A common provision found in the various federal and California employment discrimination statutes is the requirement that generally one must file a timely and appropriate administrative claim before resorting to the courts. Failure to properly “exhaust” one’s administrative remedies or to comply with administrative filing deadlines can be fatal defects to a subsequent legal claim. This article addresses the deadlines for filing administrative claims, the maze of laws that lead to those deadlines, and the deadlines for filing suit in the courts.
The major statutory schemes on which the bulk of all California employment discrimination litigation is based and which are the focus of this article are:
Title VII of the Civil Rights Act of 1964 (Title VII) (42 USC §§2000e–2000e-17), which prohibits discrimination based on race, color, sex, religion, and national origin;
Americans With Disabilities Act (ADA) (42 USC §§12101-12213), which prohibits discrimination based on physical and mental disability; and
California Fair Employment and Housing Act (FEHA) (Govt C §§12900-12996), which prohibits discrimination based on race, religion, color, national origin, ancestry, disability (physical and mental), medical condition (including pregnancy and childbirth), marital status, sex, and age.
Each of these schemes contains provisions that require an administrative charge be filed before bringing legal action. 42 USC §2000e-5(f)(1) (Title VII), 42 USC §12117(a) (incorporating Title VII’s powers, remedies, and procedures into the ADA); Govt C §12965(b) (FEHA).
In addition, the procedural principles discussed in this article will generally apply to actions brought under the Age Discrimination in Employment Act (ADEA) (29 USC §§621-634). The parallelism is not perfect, however (see generally 2 Wilcox, California Employment Law §§42.61, 42.71(b) (1995)), and thus the ADEA is excluded from the scope of this article.
The Administrative Filing Requirement
The Theory Behind the Requirement
The administrative filing requirement, although potentially harsh in effect, is laudable in purpose. Theoretically, the filing of an administrative claim will trigger the investigatory and conciliatory procedures of the appropriate administrative body, with the hope that unlawful employment practices can be resolved and eliminated informally. Sanchez v Standard Brands, Inc. (5th Cir 1970) 431 F2d 455, 466; Martin v Lockheed Missiles & Space Co. (1994) 29 CA4th 1718, 1728, 35 CR2d 181. If successful, the need for judicial involvement may never arise, thereby easing the burden on the court system, maximizing the use of presumed administrative agency expertise, and providing a more economical and less formal means of resolving the dispute. Rojo v Kliger (1990) 52 C3d 65, 83, 276 CR 130.
Timing of Administrative Charge
Perhaps the number one mistake made by plaintiffs in employment discrimination lawsuits is the failure to file a timely charge with the appropriate administrative body. The general rule in California is that for a federal discrimination charge to be timely, the claimant must have filed the charge with either the Equal Employment Opportunity Commission (EEOC), which enforces Title VII and the ADA (42 USC §§2000e-5, 12117(a)), or the Department of Fair Employment and Housing (DFEH), which enforces the FEHA (Govt C §§12925(b), 12960-12976), within 300 days of the alleged unlawful act (42 USC §§2000e-5(e)(1), 12117(a)); an FEHA charge is timely if filed with either agency within one year of the alleged unlawful act. Govt C §12960. The one-year FEHA limitation is extended by a maximum of 90 days if the claimant does not learn of the facts of the alleged unlawful act until more than one year after its occurrence. Govt C §12960.
PRACTICE TIP: If an administrative charge is not filed until more than one year after the alleged discriminatory practice, all subsequent legal claims brought under Title VII, the ADA, or the FEHA are potentially barred by the plaintiff’s untimely administrative filing. If an administrative charge is filed between 300 days and one year of the illegal act, the charge is timely only as to the FEHA claims; subsequent Title VII or ADA legal claims may be barred. Some courts have held that when equity mandates, a plaintiff’s delinquent administrative filing may be excused. See below.
Thus, to be safe, defendants should plead as affirmative defenses both failure to properly exhaust administrative remedies and failure to comply with the statutes of limitation. Both defenses should be raised because, although technically the failure to file a timely administrative claim is a failure to properly exhaust administrative remedies, case law tends to treat this as a statute of limitations issue. See Zipes v Trans World Airlines, Inc. (1982) 455 US 385, 393, 71 L Ed 2d 234, 243, 102 S Ct 1127.
The Convoluted Laws That Lead to These Simple Deadlines
Although these “judicial statute[s] of limitations” are simple (Sosa v Hiraoka (9th Cir 1990) 920 F2d 1451, 1455), the method by which they derive is not. This discussion is for those interested in the law supporting these simple conclusions.
Under Title VII and the ADA, an aggrieved individual generally has 180 days to file a charge with the EEOC following the alleged unlawful practice. 42 USC §§2000e-5(e)(1), 12117(a). Each statutory scheme further provides, however, that when the alleged discriminatory practice occurs in a state or locality that has its own antidiscrimination laws and enforcement agency, and the individual first pursues state or local law remedies, the time to file an EEOC charge is extended to 300 days, or until 30 days after receiving notice that the state agency has terminated its proceedings under state law. 42 USC §§2000e-5(e)(1), 12117(a).
Complicating matters further, when state law prohibits the alleged discriminatory practice and provides an enforcement mechanism, the EEOC generally lacks jurisdiction over any Title VII or ADA charge until 60 days after a state administrative action is commenced, or until the state agency terminates its proceedings. 42 USC §§2000e-5(c), 12117(a). This means that when state and federal laws overlap, the state agency must process the charge first. Effectively, there is a 60-day “hold” on the filing of federal charges, and the federal filing period is reduced to 240 days. See Mohasco Corp. v Silver (1980) 447 US 807, 816, 825, 65 L Ed 2d 532, 542, 547, 100 S Ct 2486. For example, if the initial charge filed by an aggrieved person was with the EEOC and was filed 241 days after the discriminatory act, the EEOC would be precluded from processing the matter for 60 days. By the time the EEOC was authorized to consider the matter, 301 days would have expired following the act of discrimination, and the charge would be deemed untimely. See EEOC v Commercial Office Prods. Co. (1988) 486 US 107, 111, 100 L Ed 2d 96, 103, 108 S Ct 1666.
Fortunately, in California, these rules are greatly simplified as a result of the Worksharing Agreement between the EEOC and the DFEH. See Fiscal Year 1996 Worksharing Agreement Between California Department of Fair Employment and Housing and U.S. Equal Employment Opportunity Commission, hereafter cited as “Worksharing Agreement.” Authorization of such agreements is found in 42 USC §§2000e-4(g)(1), 2000e-8(b), and 29 CFR §1601.13(c). The subject Worksharing Agreement applies to Title VII, ADA, ADEA, and Equal Pay Act of 1963 (29 USC §206) claims that overlap with FEHA claims. See Worksharing Agreement §I(A). Under this agreement, the EEOC and DFEH are each the agent of the other for purposes of receiving charges, and a claimant may “cross-file” charges, whereby a filing with one agency is forwarded to and considered filed with the other. Worksharing Agreement, §II; see EEOC Compliance Manual (CCH) §§5.2-5.3; 29 CFR §1601.13(a)(3)-(4), (b). Thus, a filing with one agency generally can constitute a filing with the other. See 2 Wilcox, California Employment Law §40.20 (1995); but see Martin v Lockheed Missiles & Space Co. (1994) 29 CA4th 1718, 1727, 35 CR2d 181. In fact, the Worksharing Agreement requires each agency (the EEOC or DFEH) to inform individuals of their right to file charges with the other agency, and to assist individuals with the “dual-filing” of charges with both agencies. See Worksharing Agreement §II(C)-(F).
In addition, although the language of Title VII and the ADA provides for the 300-day extended charge filing period only when a claimant “initially” institutes state proceedings (42 USC §§2000e-5(e)(1), 12117(a)), in practice, the 300-day extension applies in California even if the claimant files initially with the EEOC, because the DFEH has waived jurisdiction to the EEOC under the Worksharing Agreement. Worksharing Agreement §III(A)(1); Bouman v Block (9th Cir 1991) 940 F2d 1211, 1220. Moreover, in states where the time for filing a state claim is less than 300 days, a claimant is afforded the extended federal filing period even when his or her filing renders the state claim untimely. EEOC v Commercial Office Prods. Co. (1988) 486 US 107, 123, 100 L Ed 2d 96, 111, 108 S Ct 1666.
The DFEH has expressly waived its 60-day initial processing right of all claims and defers actions filed between 240 and 300 days of the alleged unlawful practice to the EEOC. Worksharing Agreement, §III(A)(1); DFEH Field Operations Directive No. 16 (Jan. 18, 1982); see 29 CFR §1601.13(a)(3)(iii). Such waivers are authorized by 29 CFR §1601.13(a)(3)(iii). This waiver effectively terminates the state administrative proceedings and gives the EEOC jurisdiction over any complaint filed within 300 days of the alleged illegal act. EEOC v Commercial Office Prods. Co. (1988) 486 US 107, 114, 120, 100 L Ed 2d 96, 109, 108 S Ct 1666. The net result is that generally an aggrieved individual can preserve his or her legal rights under Title VII, the ADA, and the FEHA by dual-filing a charge with either the EEOC or DFEH within 300 days of the alleged unlawful practice.
The Worksharing Agreement also establishes a division of labor between the EEOC and DFEH (by setting forth which agency will process which types of charges). Worksharing Agreement §III. Generally, the EEOC will defer to all findings and resolutions of the DFEH. 29 CFR §§1601.70(a), 1601.75, 1601.77, 1601.80.
When the Time Period Commences
Determining the precise event that signals the commencement of the time within which to file an administrative charge is not necessarily a simple task, since each situation must be evaluated on a case-by-case basis. This article does not attempt to fully discuss this issue, but briefly addresses one of the major areas of controversy.
For claims of discriminatory termination, the major issue is whether the time commences on termination, or on notice that termination will occur. Under federal law, this issue has been resolved; the time will run on notice. Thus, in Delaware State College v Ricks (1980) 449 US 250, 257, 66 L Ed 2d 431, 439, 101 S Ct 498, the court held that the claim accrued not when the plaintiff was fired, but when he learned that he had been denied tenure, because on the facts presented, eventual termination was an inevitable consequence of the tenure denial. Under California law, appellate courts have rendered conflicting holdings. In Regents of the Univ. of Cal. v Superior Court (1995) 33 CA4th 1710, 1717, 39 CR2d 919 (Fourth District, Division One), the court held that the claim accrues when the plaintiff learns of the decision to terminate, even if he or she continues to work. This, of course, coincides with the federal approach. However, in Romano v Rockwell Int’l, Inc. (1995) 39 CA4th 140, 148, 46 CR2d 77 (Second District, Division Two), the court held that the time does not run until the actual termination occurs. The California Supreme Court has recently granted review of the Romano case (review granted Jan. 18, 1996, S050290), so further guidance should be forthcoming.
Of course, each case should be carefully scrutinized. Matters can become quite complicated, particularly when the claimant has reason to know or suspect the discriminatory act before it occurs (see, e.g., Reeb v Economic Opportunity Atlanta, Inc. (5th Cir 1975) 516 F2d 924, 931), or when continuing discriminatory acts are alleged. See 2 Wilcox, California Employment Law §§42.23, 42.62[d] (1995).
Possible Exception to Exhaustion Requirement in ADA ActionsAgainst Public Entities
When suing a public entity for employment discrimination in violation of the ADA, plaintiffs may have the option of proceeding under either Subchapter I or Subchapter II of the Act. Under Subchapter I, a plaintiff clearly must exhaust administrative remedies. If a plaintiff proceeds under Subchapter II, however, an argument exists that the plaintiff need not exhaust.
Generally, employment discrimination claims premised on ADA protections are prosecuted under Subchapter I of the Act, entitled “Employment.” Subchapter I prohibits any “covered entity,” defined as “an employer, employment agency, labor organization, or joint labor-management committee,” from engaging in various acts of employment discrimination. 42 USC §§12111(2), 12112(a). The term “employer” includes a state or other governmental agency, excluding the federal government, with 15 or more employees. 42 USC §§12111(5), 12111(7) (incorporating definitions set forth in Title VII, 2000e(b)); Petersen v University of Wisconsin Bd. of Regents (WD Wis 1993) 818 F Supp 1276, 1277. Subchapter I incorporates many of Title VII’s “powers, remedies, and procedures,” including the administrative filing provision. See 42 USC §§12117(a), 2000e(5)(f)(1).
Subchapter II of the ADA, entitled “Public Services,” prohibits a “public entity” from engaging in various conduct affecting certain disabled individuals, including “subject[ing those individuals] to discrimination.” 42 USC §12132. A “public entity” includes a state or local government or governmental agency of any size. 42 USC §12131(1). The court in Petersen v University of Wisconsin Bd. of Regents (WD Wis 1993) 818 F Supp 1276 concluded that Subchapter II creates a prohibition against employment discrimination by a public entity. See also 28 CFR §35.140. It appears that the public entity in Petersen did not advance a cogent argument to the contrary. Significantly, Subchapter II does not adopt Title VII’s remedies and enforcement procedures, but “[t]he remedies, procedures, and rights set forth in section 794a of Title 29” (42 USC §12133), which do not impose an exhaustion of remedies requirement. See Petersen v University of Wisconsin Bd. of Regents (WD Wis 1993) 818 F Supp 1276, 1278. Thus, a solid argument can be raised that an individual may file an action against a public entity for employment discrimination under Subchapter II of the ADA directly in a court of law, without first exhausting administrative remedies.
PRACTICE TIP: A plaintiff’s safer course of action will always be to pursue an ADA employment discrimination claim against a public entity with 15 or more employees under Subchapter I, and to properly exhaust administrative remedies. However, if the public entity has less than 15 employees, or if the administrative filing period has already expired, an action filed directly in court should be considered. Even when an aggrieved individual has invoked the administrative mechanisms under Subchapter I, it is advisable that a Subchapter II claim also be pleaded in a subsequent judicial action any time a public entity is being sued. This will provide an additional layer of protection should it later be determined that the plaintiff’s administrative exhaustion efforts were in some way deficient.
Filing of Complaint After Notice of Right To Sue
Notice of Right To Sue
Proper exhaustion of administrative remedies requires an aggrieved individual to obtain a notice of right to sue from the appropriate administrative agency before filing a civil action. 42 USC §2000e-5(f)(1) (Title VII), 42 USC §12117(a) (incorporating Title VII’s powers, remedies, and procedures into the ADA); Govt C §12965(b) (FEHA). The EEOC will generally issue a “right-to-sue” letter under the following circumstances: (1) after it dismisses the administrative proceedings; (2) when the potential plaintiff requests such a letter at least 180 days after submitting the charge, and the administrative processing of the charge is incomplete; (3) before 180 days if the EEOC determines that it will not complete its processing of the charge within 180 days; and (4) when the EEOC, after concluding that the employer has engaged in discrimination, is unable to secure voluntary compliance. 42 USC §§2000e-5(f)(1), 12117(a); 2 Wilcox, California Employment Law §40.20 (1995). Under the FEHA, if the DFEH does not issue its own accusation against the employer within 150 days of the date the charge was filed, or, within that time period, determines that it will not issue its own accusation, it must inform the potential plaintiff that it will provide a right-to-sue letter on request. Govt C §12965(b). Even if the potential plaintiff does not request such a letter, the DFEH must issue one on the completion of its investigation, and in no event more than one year after the charge was filed. Govt C §12965(b).
Often times, a plaintiff will bring an action alleging both Title VII or ADA and FEHA violations. When the plaintiff has filed dual administrative charges with the EEOC and the DFEH, he or she can obtain a right-to-sue letter from either agency. Moreover, generally, when one agency issues a right-to-sue letter, the other will as well. Nonetheless, a letter from both agencies is required if the plaintiff will pursue both state and federal legal claims. See 2 Wilcox, California Employment Law §42.02 (1995); Martin v Lockheed Missiles & Space Co. (1994) 29 CA4th 1718, 1726, 35 CR2d 181.
PRACTICE TIP: On receipt of a complaint raising both state and federal discrimination claims, defendants should confirm that the plaintiff has obtained and pleaded issuance of right-to-sue letters from both the EEOC and DFEH.
Filing of Civil Action
Under the FEHA, a plaintiff has one year to file a civil action “from the date of” a right-to-sue notice issued by the DFEH. Govt C §12965(b). Case law suggests that the time to file may commence on receipt of the notice, rather than from the date that the notice issues. See Williams v Pacific Mut. Life Ins. Co. (1986) 186 CA3d 941, 951, 231 CR 234; Salgado v Atlantic Richfield Co. (9th Cir 1987) 823 F2d 1322, 1326. Obviously, the safer course is to file within the earlier time period.
Under Title VII and the ADA, a plaintiff has only 90 days to file a legal action following receipt of notice of the right to sue from the EEOC. 42 USC §§2000e-5(f)(1), 12117(a); see Gonzalez v Stanford Applied Eng’g, Inc. (9th Cir 1979) 597 F2d 1298, 1299. Failure to file a legal action within the requisite time periods gives rise to a statute of limitations defense rather than a failure to exhaust administrative remedies. See, e.g., Salgado v Atlantic Richfield Co. (9th Cir 1987) 823 F2d 1322, 1324.
Scope of Administrative Charge
Even when a timely administrative charge is filed, subsequent legal claims may be barred if they raise new allegations that were not set forth in the administrative charge. When an employee seeks judicial relief for conduct not set forth in the administrative charge, “the judicial complaint . . . may encompass any discrimination like or reasonably related to the allegations of the [administrative] charge, including new acts occurring during the pendency of the charge before the [administrative body].” Oubichon v North Am. Rockwell Corp. (9th Cir 1973) 482 F2d 569, 571; see also Okoli v Lockheed Technical Operations Co. (1995) 36 CA4th 1607, 1617, 43 CR2d 57. In making this “like or reasonably related to” evaluation, the administrative charge is construed “with the utmost liberality.” Kaplan v International Alliance of Theatrical & Stage Employees (9th Cir 1975) 525 F2d 1354, 1359; EEOC v Farmer Bros. Co. (9th Cir 1994) 31 F3d 891, 899. As the Oubichon court noted, “[t]o force an employee to return to the [administrative] agency every time he claims a new instance of discrimination in order to have the . . . courts consider the subsequent incidents along with the original ones would erect a needless procedural barrier.” Oubichon v North American Rockwell Corp. (9th Cir 1973) 482 F2d 569, 571. Thus, a court may hear any claims that fall within the administrative agency’s actual investigation or any investigation that can reasonably be expected to grow out of the discrimination charge. EEOC v Farmer Bros. Co. (9th Cir 1994) 31 F3d 891, 899.
Determining whether new allegations in a complaint address matters actually investigated or reasonably expected to be investigated during the course of the administrative proceedings will require a case-by-case evaluation. Generally, however, “the more specific the original charge, the less likely that expansion into other areas will be allowed.” 1 Larson, Employment Discrimination §76.06[c] (2d ed 1994). Moreover, attempts to add an entirely new basis for the alleged discrimination (as opposed to additional incidents of discrimination) are more likely to fail. See 1 Larson §76.06[c]; see, e.g., Shah v Mount Zion Hosp. & Medical Ctr. (9th Cir 1981) 642 F2d 268, 271 (EEOC complaint alleging sex and national origin discrimination insufficient to support claims of race, color, and religious discrimination in civil action); Okoli v Lockheed Technical Operations Co. (1995) 36 CA4th 1607, 1609, 43 CR2d 57 (plaintiff did not exhaust administrative remedies on illegal retaliatory discharge when administrative charge alleged only discrimination in promotion; latter claim not like nor reasonably related to the former, and no indication DFEH ever had opportunity to address retaliation claim informally). Similarly, attempts to name new defendants in a legal complaint, who were not identified in the administrative charge, will likely fail. See Cole v Antelope Valley Union High Sch. Dist. (1996) 47 CA4th 1505, 55 CR2d 443; 3 Wilcox, California Employment Law §43.10(b) (1995).
Effect of Failure to Exhaust
The United States Supreme Court has held that the prescribed time limits for filing Title VII administrative charges and civil actions are not jurisdictional in nature, but more akin to a statute of limitations. Zipes v Trans World Airlines, Inc. (1982) 455 US 385, 393, 71 L Ed 234, 243, 102 S Ct 1127. As such, equitable concepts such as waiver, estoppel, and equitable tolling may apply to relieve a would-be plaintiff from the consequences of a tardy filing. 455 US at 393, 71 L Ed 2d at 243.
Despite the holding in Zipes, federal courts have sometimes found compliance with the administrative requirements to be a jurisdictional prerequisite to federal subject matter jurisdiction. See Sosa v Hiraoka (9th Cir 1990) 920 F2d 1451, 1456; Shah v Mount Zion Hosp. & Medical Ctr. (9th Cir 1981) 642 F2d 268, 271; Serpe v Four-Phase Sys., Inc. (9th Cir 1983) 718 F2d 935, 936; Blank v Donovan (9th Cir 1986) 780 F2d 808, 809; Scott v Perry (9th Cir 1978) 569 F2d 1064, 1065; Worrell v Uniforms To You & Co. (ND Cal 1987) 673 F Supp 1461, 1462. Attempting to explain these seemingly diverse holdings, Macy v Dalton (ED Cal 1994) 853 F Supp 350, 356, concludes that when a would-be plaintiff fails to present a claim at all to the appropriate administrative body, a federal court will lack subject matter jurisdiction over any legal action, based on the exhaustion of remedies requirement; however, when a would-be plaintiff presents a claim to the administrative body but does not properly comply with all of the rules (e.g., timing), a federal court will have jurisdiction over the legal action and exhaustion of remedies becomes an affirmative defense, which is subject to equitable principles.
California courts appear more in accord that exhaustion of administrative remedies is a jurisdictional prerequisite to FEHA claims. See Okoli v Lockheed Technical Operations Co. (1995) 36 CA4th 1607, 1609, 43 CR2d 57; Martin v Lockheed Missiles & Space Co. (1994) 29 CA4th 1718, 1724, 35 CR2d 181; Yurick v Superior Court (1989) 209 CA3d 1116, 1121, 257 CR 665; Miller v United Airlines, Inc. (1985) 174 CA3d 878, 890, 220 CR 684; Wilkinson v Norcal Mut. Ins. Co. (1979) 98 CA3d 307, 318, 159 CR 416; see also Rojo v Kliger (1990) 52 C3d 65, 83, 276 CR 130. Despite these uniform holdings, there is room for a plaintiff to argue that equitable principles should apply. See Louis Cairo (1984) No. 84-04, FEHC Precedential Decisions CEB 3 (Cal CEB 1984-1985, 1986-1987) (Fair Employment and Housing Commission pronouncement that FEHA time limits are subject to equitable tolling if DFEH has misled plaintiff); Salgado v Atlantic Richfield Co. (9th Cir 1987) 823 F2d 1322, 1324 (applying federal precedent to find that time to file legal action based on FEHA following receipt of right-to-sue letter is tolled while EEOC investigates claim).
As employment discrimination litigation continues to escalate, more and more practitioners will be required to obtain an understanding of the associated administrative procedures. In brief, a plaintiff first must file a timely administrative charge, which adequately sets forth the allegations that will be raised in the judicial proceeding. Second, the plaintiff must obtain right-to-sue authorization from the administrative agency, and then file a legal complaint within prescribed time periods.
Below is a summary of the major deadlines applicable to employment discrimination cases in California:
|Claim with the EEOC||300 days after unlawful act||This will allow a lawsuit based on both federal and California statutes, if cross-filed.|
|Claim with the DFEH||1 year after unlawful act||Claims filed after 300 days will only permit a lawsuit based on California statutes, not federal.|
|Claim with the DFEH-only if learned of facts more than one year after unlawful act||1 year and 90 days after unlawful act||This is extremely risky. No California case law has applied this rule.|
|Complaint in court for violations of federal statutes||90 days after receipt of right-to-sue notice from EEOC||Short time to file is a trap for the unwary.|
|Complaint in court for violations of California statutes||1 year from notice of right-to-sue from DFEH||Safer course is to file within 1 year of date of right-to-sue letter, rather than receipt of said letter.|