United States: DFEH Reports Age Discrimination And Retaliation Claims On The Rise

Last Updated: October 12 2018
Article by Geoffrey C. Westbrook

Seyfarth Synopsis: The California Department of Fair Employment and Housing issues a yearly report describing its complaint and litigation trends. Below is the Reader's Digest" version.

2017 Annual Report covering its fifth year in active litigation. In 2013, the California Legislature authorized the DFEH to file lawsuits under the Fair Employment and Housing Act ("FEHA"), California's stricter version of federal anti-discrimination law, as well as under the Unruh Civil Rights Act, the Disabled Persons Act, and the Ralph Civil Rights Act. Over the years, the DFEH's operations have expanded to 220 fulltime employees, including attorneys, investigators, paralegals, and mediators, working from five California offices. (That is likely bigger than most California law firms and corporate legal departments.) The DFEH is presently the largest state civil rights agency in the country, with the power to launch state-wide representative actions for uncapped damages, attorney fees and costs, and injunctive relief, such as requiring new or revised policies and employee training.

Opening the Door to More Complaints. The DFEH over the last year launched a series of initiatives making it easier to file a civil rights complaint in California. The centerpiece of the effort was a new case filing and management system, called Cal Civil Rights System (CCRS). It allows employees and tenants to file a complaint and trigger a state-led investigation process using an online platform. Now individuals, from the comfort of their living rooms, can file a complaint, schedule appointments with investigators, check on case status, submit notes and documents, request right to sue letters, and even make public records requests.

Given this new ease of access, it is no surprise that DFEH filings increased during 2017. The DFEH received nearly 25,000 administrative complaints and inquiries. That is a 5% jump from 2016 and 2015 (which had roughly the same number) and substantially more than the 19,000 filed in 2014. About 90% of 2017 complaints were employment-related, 5% were housing matters, and the remainder fell under the Unruh, Ralph, and Disabled Persons Acts. Approximately 19,000 complaints resulted in formal charges filed with the DFEH. About one-half of complaints, or 12,872, requested an immediate right to sue, thereby bypassing any investigation or vetting by the DFEH before involving the courts.

What is striking about the DFEH's report is the number of age discrimination and retaliation complaints made in 2017. Almost 20% of employment complaints in 2017 were for age discrimination (up from 11% in 2016). The largest portion of charges requesting a right-to-sue asserted age discrimination and retaliation—totaling 30% of the bases alleged. Disability was the next most commonly asserted basis in 2017; charges asserting disability exceeded the number of ancestry, religion, national origin, marital status, color, and sexual orientation discrimination charges combined.

Los Angeles County was the most litigious region in 2017. Employees and residents of the County of Angels filled out 30% of the DFEH's total docket. Los Angeles County also ran the board in every type of complaint within the DFEH's jurisdiction: 21% of employment, 22% of Ralph Act, 25% of Disabled Persons Act, and 30% of housing-related complaints. Orange and San Diego Counties were the second and third most active regions, with 8% and 6% of complaints, respectively. Sacramento County—not San Francisco, Santa Clara, or other more populated areas—has surprisingly been the source of the most DFEH complaints in Northern California, for three years running. Placer County's 139 complaints in 2017 makes it the most charge-happy county in California by population size (it also won this top-honor in 2016).

The DFEH's report provides some demographic information on the 2017 class of complainants. Over the last year, 52% of complainants disclosed their race and 35% stated their national origin when filing with the DFEH. The largest group of reporters identified as Caucasian (32.5%) and American (52%), which is consistent with 2016 figures. Individuals identifying as Hispanic or Latino brought 28% of charges in 2017, and those reporting as African American filed 23% (also tracking 2016 statistics). The DFEH has not to date elected to track other demographic data regarding complainants, such as age, sex, gender, marital status, household income, or religion.

Investigations and Settlement Revenues Spiked. The DFEH saw a 22% increase in investigations to 6,160 in 2017. Only 888 of these complaints settled, or 14%, which is a 7% drop from 2016. The remaining 5,000 plus charges, presumably, carried over into 2018, were withdrawn by the claimant, resolved through private negotiation, dismissed by the DFEH, or consolidated with an overlapping charge.

The DFEH had a fruitful year in terms of settlement revenues. It netted 12% more in 2017, bringing $12,984,367 to state coffers. Notably, this figure does not count monies generated through settling any of the 35 civil complaints filed by the DFEH in 2017. The DFEH's most successful year in terms of pre-lawsuit settlement revenues appears to have been in 2013, with $13,433,922.

The data suggest that the cost to settle a complaint increases as the matter moves through the DFEH's review process. Cases settled for $8,966 on average within the Enforcement Division, the DFEH's investigative arm. Where the parties agreed to participate in the voluntary dispute resolution process, it took $14,122 on average to resolve it. Once the matter reached a pre-suit posture, in mandatory dispute resolution, it cost employers $42,513 on average to settle. And after the case was referred to the Legal Division and DFEH attorneys got involved, the average settlement figure was $42,860. Early resolution efforts evidently pay off.

The DFEH Hand-Picks Charges It Brings to Court. The DFEH filed 35 lawsuits in 2017. That is less than 1% of the 6,160 complaints investigated by the Enforcement Division. The DFEH then referred 140 of those charges, or 2%, to the DFEH's attorneys in the Legal Division. Only one-quarter of these matters ended up in litigation.

Complaints referred to the Legal Division split almost evenly between housing and employment matters. Housing cases made up 40%, followed closely by employment complaints at 39%, and Unruh Act charges at 24%. No Disabled Persons Act claims were sent to legal in 2017. These figures are largely in line with the DFEH's 2016 referrals, although notably there was a 21% increase in Unruh Act charges considered for litigation in 2017. In 2015, the DFEH gave much more priority to employment matters, making up 56% of charges passed on to its lawyers.

While age discrimination complaints picked up in 2017, the DFEH did not give such claims preference. None of its lawsuits asserted a claim for age discrimination. Disability discrimination continued to be the DFEH's focus, as it was in 2015 and 2016. The theory was asserted in 11 employment, seven housing, and eight Unruh-related lawsuits–or roughly 74% of cases. Retaliation was a close second with 10 such civil actions. Sexual harassment complaints slightly increased year over year from four to six. Discrimination based on religion, ancestry, and national origin resulted in less than a handful of suits over the last three years.

Key Takeaways. Each year the DFEH's focus appears to shift towards litigation. Referrals from its enforcement to legal divisions have crept up over the years from 98 in 2014 to 140 in 2017. Recent technological changes to the DFEH's claims and investigation process have brought new efficiencies within the agency and freed staff to give more individual attention to cases.

As the DFEH steps up its game, so should employers. Well-written policies and regular trainings are two ways to curtail bad employee behavior, ensure compliance with the law, and stay off the DFEH's radar altogether (not to mention boost morale and productivity in the workplace). Los Angeles and Sacramento employers, in particular, should make this a priority given the number of charges filed each year from their own backyards.

When a complaint is made with the DFEH, get counsel involved early. The 2017 data show that claims resolve for the least amount of dough at the investigation stage. Companies that drag their feet may end up dealing with the legal department, where the chance of getting sued rockets up from 1% to 25%. Given our recent experience, it would be no surprise if this figure increased further in 2018. We will report on that next Summer, as we did on the DFEH's report last year. Seyfarth Shaw is ready to assist in the meantime on ways to proactively avoid complaints, timely address DFEH inquires, and defend charges and litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Geoffrey C. Westbrook
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