California Government Code Section 12965, parsed and explained

California Government Code Section 12965 is a commonly referenced statute that provides many of the deadlines and procedural rules for filing a case in California whether it was initiated and/or processed through the Equal Employment Opportunity Commission (EEOC) or the California Fair Employment and Housing Act (FEHA).

Below, I will go through subsections (a) through (e). The original text of the law will be reproduced in this format:

Text of California Government Code Section 12965 looks like this.

And my comments will appear like this text without any special formatting.

If you like, use the following table of contents to navigate to any specific subsection you have questions about.

California Government Code Section 12965

12965(a)

Part (a), provides that if an alleged discrimination case fails to settle through mediation or other alternative dispute resolution (ADR), the claimant may bring a civil action. A prerequisite to filing a civil action (court case) is that the parties engage in a free dispute resolution process.

If the claimant chooses to initiate a civil action, after going through the necessary procedures, they must file in any California county where the discrimination took place, where records related to those acts are, or where the claimant would have worked or had access to public accommodation had they not otherwise been the subject of unlawful acts. If the defendant is not located in any of these locations, an unlikely scenario, the case may be filed in a county where the defendant resides or has its principle office.

Class complaints, and those based on a violation of Section 51.7 of the Civil Code are subject to special rules and a claim in civil court must be filed two years after filing a complaint.

All other complaints must be filed in civil court one year from filing. Failure to do so could prevent the claimant from seeking redress entirely.

In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in his or her discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the department’s internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by his or her own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendant’s residence or principal office. For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.

12965(b)

Section (b) governs when individuals have the right to file a complaint. In these cases, the FEHA has the initial option of filing a civil action. If those agencies choose not to file a civil action on the complainant’s behalf then they must do so on their own, if they wish to proceed.

If the FEHA decides not to file a civil action on the complainants behalf, or if more than 150 days elapse after the initial filing of a complaint, upon the complainant’s request they will be given a right-to-sue-notice.

The right-to-sue-notice (right to sue notice) is a very important document which outlines the procedural stance of your case and notifies your rights. The notice typically will provide that the complainant has one year to initiate a civil suit from the date they receive that notice.

If the complainant never requests a right-to-sue notice the FEHA will issue a right-to-sue-notice after its investigation is complete not later than one year after the filing of the original complaint.

This section also includes special rules for the filing of actions based on violations of law related to HIV/AIDS discrimination.

Additionally, civil cases brought under these laws may result in the award of reasonable attorney’s fees and costs, including expert witness fees.

If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.

12965(c)

Section (c) relates to the relief parties can receive if they win their case. Relief is a fancy word for what the court can order the losing party to do. In this case the court can award damages, but also may require that the employer provide additional discrimination focused training to its managers and employees going forward.

Additionally, this section provides that if the civil complaint properly requests it, and the complainant’s claim meets the requirements of Section 51.7 of the Civil Code, then they may also be awarded up to $25,000 civil penalty to be paid by the defendant.

A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employer’s internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.

12965(d)

Section (d) relates to the tolling (extending) of the statute of limitations in certain situations. Specifically, when the charge of discrimination is filed with both the EEOC and FEHA and the investigation is deferred by the FEHA to the EEOC and the right-to-sue is issued upon that deferral. The tolling lasts until the federal right-to-sue period expires or one year from the date of the right-to-sue notice issued by the FEHA, whichever is later.

(1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:

(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.

(B) The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.

(C) A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.

(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later. (3) This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.

12965(e)

Similar to section (d), above, section (e) relates to the tolling (extending) of the statute of limitations in certain situations. Specifically, when the charge of discrimination is filed with both the EEOC and FEHA and the investigation is deferred by the EEOC to the FEHA and after the investigation by the Department of the FEHA, the EEOC agrees to perform a review of that determination, or conducts its own independent investigation.

The tolling, in this case, lasts until the federal right-to-sue period expires or one year from the date of the right-to-sue notice issued by the FEHA, whichever is later.

(1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:

(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.

(B) The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.

(C) After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.

(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.

 

Conclusion

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

Related posts: