Employment FAQs

Who is covered by the employment part of the Fair Employment and Housing Act?

The law applies to public and private employers, labor organizations, apprentice training programs, employment agencies, and licensing boards. Employers can be one or more individuals, partnerships, corporations or companies. Most parts of the FEHA apply to employers of five or more employees. The law’s prohibition on harassment applies to employers of one or more employees, or a person who regularly receives the services of one or more contractors.

What are the time limits for filing a complaint of employment discrimination?

In general, a complaint of employment discrimination must be filed within one year from the date that the alleged discriminatory act occurred. You must file a complaint with the Department even if you wish to file a case directly in court. If you wish to go to court, you can request an immediate “right to sue” notice when you file your complaint.

How does a person file a complaint of employment discrimination?

Start by filing a “Pre-Complaint Inquiry.” You can find that form using any of the following methods:

If you have a disability that prevents you from submitting a written pre-complaint form online, by mail, or email, the DFEH can assist you by scribing your pre-complaint by phone or for individuals who communicate by American Sign Language through the relay system. Contact the Communication Center 800-884-1684 (voice or 711 relay operator) or 800-700-2320 (TTY) or by email to contact.center@dfeh.ca.gov to schedule an appointment.

How does the Department conduct an investigation?

The Department gathers evidence to determine if the complainant’s allegations can be proven. The individual filing the complaint is called a complainant and the employer is called a respondent. The investigation process includes gathering evidence from both sides, interviewing the parties and witnesses, and reviewing records. An investigation may be conducted on site and/or through telephone interviews. The Department has the authority to take interviews under oath, issue subpoenas and interrogatories and seek temporary restraining orders during the course of its investigation. All evidence gathered is analyzed to determine if a violation of the Fair Employment and Housing Act has occurred.

How long does it take the Department to conduct an investigation?

In general, the Department has up to one year from the date a DFEH complaint is filed in which to complete an investigation.

Does the Department represent complainants?

No. During the investigation, the Department acts as an objective fact-finder, gathering evidence to determine whether the complainant’s allegations can be proven. The Department does not represent either the complainant or the respondent.

If the investigation establishes that there is evidence to support the complainant’s allegations, and the parties do not reach a settlement, the Department’s Legal Division reviews the case for potential litigation in court. The Department has attorneys who prepare and file cases in court.

When the Department decides to sue, it files a civil lawsuit in the name of the Department of Fair Employment and Housing against the employer. Department attorneys represent the Department, not the individual complainant. The complainant is a real party in interest in the lawsuit.

Though the assigned Department attorney is not the complainant’s personal legal advisor, the complainant’s interests are important in the litigation, and the complainant receives 100% of any remedies recovered, with the exception of attorney fees and costs. The Department does not charge complainants attorney fees or expert witness fees, nor does it take a percentage of any award or settlement.

What is a reasonable accommodation?

A reasonable accommodation is a change in the way things are done that helps employees or applicants with disabilities do a job.

Can Be Reasonable Accommodations Not Reasonable Accommodations
  • Making premises accessible
  • Reserved parking spaces
  • Allowing service animals at work
  • Job restructuring
  • Modified work schedule
  • Changing policies
  • Extra training
  • Working from home
  • Leave of absence
  • Reassignment to a vacant position
  • Lowering production standards
  • Lengthy, indefinite leave of absence
  • Creating a temporary job
What is the interactive process?

The interactive process is how an employer and employee/applicant discuss and consider options for reasonable accommodations. An employer must begin this process if an employee/applicant:

  1. Requests a reasonable accommodation;
  2. If the employer otherwise learns that an employee/applicant needs an accommodation; or
  3. If an employee with a disability uses up their medical leave but still cannot return to work.

In the interactive process, the employer must consider any requested accommodation. If the employer rejects the requested accommodation, it must consider other options. When the disability or need for accommodation is not obvious, the employer can require the applicant/employee to provide medical records showing the need for accommodation but not disclosing the nature of the disability. These medical records must remain confidential.

For what reasons may an employee take leave under the California Family Rights Act (CFRA)?

An eligible employee may take a job-protected leave of absence for the birth of a child for purposes of bonding, for placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent, or spouse, and for the employee’s own serious health condition except pregnancy related conditions. (This is covered by the federal Family Medical Leave Act (FMLA) or Pregnancy Disability Leave (PDL). The leave may total up to 12 workweeks in a 12-month period. It does not need to be taken in one continuous period of time.

Can an employer fire an employee who can’t return to work after using all 12 weeks of CFRA or FMLA leave?

Not if the employee used CFRA or FMLA leave for his or her own serious health condition. When an employee with a serious health condition can’t return to work after 12 weeks of CFRA or FMLA leave, the employer must initiate an interactive process to consider reasonable accommodations such as additional leave.

Can an employer fire a person for being out sick?

Not if the employee (a) is disabled and entitled to leave or time off as a reasonable accommodation, or (b) has a “serious health condition” and qualifies for leave under the California Family Rights Act (CFRA) or FMLA.

  1. If the employee’s illness qualifies as a disability, the employee is generally entitled to leave or time off as a reasonable accommodation. Mild conditions that do not limit a major life activity, such as the common cold or flu, or minor cuts, bruises, or abrasions do not qualify as disabilities. But even temporary conditions, like a broken bone or pneumonia, qualify as disabilities when they limit a major life activity.
  2. Sometimes an employee has a “serious health condition” as defined under the California Family Rights Act and qualifies for CFRA leave but misses work without first requesting leave. If the need for leave is an emergency or otherwise unforeseeable and the employee provides notice of the need for leave as soon as practical, the employer may not deny CFRA leave or terminate the employee for failing to provide advanced notice of the need for leave.