Employee's Mistake in Administrative Complaint Did Not Bar Bias Suit

An employee could proceed with her employment discrimination lawsuit after filing an administrative complaint with the Department of Fair Employment and Housing (DFEH) even though the complaint did not use the company's legal name, a California appeals court ruled.

The employer was unmistakably identified in the complaint, the court said, and so the employee followed the appropriate administrative procedures under the Fair Employment and Housing Act (FEHA) before filing the lawsuit.

Administrative Remedies

Any person claiming a FEHA violation must first file a complaint with the DFEH, which may investigate the claim. If the DFEH fails to investigate or finds no violation, the department issues a right-to-sue letter allowing the complainant to then file an action in court.

The complainant must follow all the steps under FEHA's administrative process before proceeding in court. This is called "exhaustion of administrative remedies."

The employee in this case filed her DFEH complaint on May 30, 2018. In the caption, she listed her former employer by the name it does business under, rather than its legal name. She claimed that her former employer, as well as her former manager, had taken numerous adverse employment actions against her and that she had suffered harassment, discrimination and retaliation in the workplace. She also claimed that several co-workers discriminated against her.

In her DFEH complaint, the employee referred to several managers and supervisors by name. The employee also stated her job title, her period of employment and the names of numerous people who allegedly had information related to her claims.

At the employee's request, the DFEH issued an immediate right-to-sue notice on the same day that she filed her complaint. Also on May 30, the employee filed an action in court against the same parties named in the administrative complaint, alleging numerous FEHA violations including race, sex and sexual-orientation discrimination, harassment, and retaliation.

The employer sought to have the FEHA claims dismissed before trial, arguing that the employee had not exhausted her administrative remedies as required under FEHA, because her DFEH complaint did not refer to her former employer by its proper legal name. The court dismissed the claims, and the employee sought review in the appellate court.

The appeals court reversed, ruling that the employee's claims could go forward.

Administrative Regulations

Under Title 2 of the California Code of Regulations, an employee can file a complaint and immediately seek a right-to-sue notice, without the DFEH conducting any investigation into the alleged discrimination.

Such a complaint should include:

• The parties' names and addresses.
• A description of the alleged act or acts of discrimination, harassment or retaliation and the dates they occurred.
• The protected basis upon which the alleged discrimination or harassment was based.

The appeals court first noted that there was no administrative process to exhaust under FEHA, because the employee requested and received an immediate right-to-sue notice on the same day that she filed her DFEH complaint—which is permitted by the regulations.

However, the court continued, even assuming that a plaintiff failed to exhaust administrative remedies, the employee in this case actually did exhaust her administrative remedies against the employer.

To begin with, the court said, the employee's DFEH complaint clearly and unmistakably identified her former employer as an intended respondent, even though it did not use the company's legal name. No reasonable person could think that the employee intended to identify an entity other than her former employer, since the body of her DFEH complaint named her managers, supervisors, co-workers, job title and period of employment, the court said. 

Furthermore, because any administrative investigation into the employee's DFEH complaint would have revealed her former employer as an intended respondent, her DFEH complaint also fully served the purpose of the FEHA administrative exhaustion doctrine, which is to give the administrative agency an opportunity to investigate and conciliate the claim.

FEHA's exhaustion requirement should not be interpreted as a "procedural gotcha," absolving an employer from all potential liability merely because an employee makes a minor mistake in naming the employer in an administrative complaint when the party's identity is clear, the court said. This is particularly true in a case such as this, in which the employee's error could not possibly have hampered any administrative investigation or prejudiced the employer in any judicial proceedings, the appeals court concluded.

Clark v. Superior Court, Calif. Ct. App., No. D077711 (March 19, 2021).

Professional Pointer: Although an employer should raise all allowable defenses to a claim of employment discrimination, it should not rely on winning a technical victory based entirely on minor inaccuracies in an employee's charge of discrimination filed with the DFEH.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.