As one of California’s largest employee-only law firms, most of our potential clients who have discrimination claims against their California employers are surprised to find out the federal agency, Equal Employment Opportunity Commission, or EEOC, is not the preferred agency for them to report their initial complaints to. We actually file almost all of our employment lawsuits (including wrongful termination and various Labor Code violations) under the laws of the State of California, and “exhaust administrative remedies” through the Department of Fair Employment and Housing.
Filing under the EEOC raises a “federal question”, which defendants can use to remove the case to federal court. We have found (as have all other knowledgeable employee advocate-attorneys) that suing federal court is a major pain in the rear for attorneys and clients. Primarily, a federal jury requires a unanimous verdict; state court, only 3/4s or 9 out of 12 jurors is needed. Due to the employer reliance on arbitration agreements, it is not entirely certain that simply pleading Title VII of the Civil Rights Act of 1964 (or other federal laws) will automatically cause a removal to federal court.
State law provides wide remedies for a wider range of clients (such as emerging areas such as gay, lesbian rights), and covers smaller employers. Under DFEH and the California Government Code, employers are liable who have at least 5 employees; 15 is required under federal law. (For family leave act cases, both California and State laws require that there be 50 employees within 75 miles of the workplace.
Different time limits apply to filing a claim with the appropriate agency. Federal law requires that an EEOC claim be filed within 300 days; state law is one year, so there’s a bit more time under state law. If you didn’t file a state claim and are only now deciding that maybe it isn’t such a bad idea, your claim will have been preserved automatically by virtue of your federal timely claim under what is known as “cross filing” with the state agency.
Be warned that if your employer had you sign a binding arbitration agreement, we will have to examine the agreement carefully to make sure it complies with Armendirez vs Foundation Health, a California Supreme Court case which ruled that arbitration agreements are legal as long as basic fundamental safeguards are in place. Even claims under the DFEH and EEOC laws can be sent to arbitration as long as there has been a knowing waiver by you, the employee, of your right to the courts.
Danz & Associates routinely litigate a number of pregnancy disability cases under state law. Pregnancy was recently declare to be a species of sex discrimination. A pregnant employee is entitled to protection if she has had a year (1,250 hours) of service with her employer in the last 12 months. That protection includes between 12 to 16 weeks of disability leave, plus baby bonding time under her family leave rights. Happy to chat any time! Steve Danz 877 789 9707.