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State and Federal Employment Discrimination Law
and the Statute of Limitations
With the disclaimer that he is not giving legal advice, Robert Racine,
one of Rudy Acua's attorneys, offers some guidelines for those who have
suffered employment discrimination at the University of California. His main
message: preserve your rights by filing your complaint promptly and
immediately consulting an experienced attorney about your specific
situation. Here are the highlights of his communication to the Newsletter. He
included more detail and legal citations for which we have no space. Anyone
who wants to see the full text can contact BDIS (510-525-6400) to obtain a
copy.
* Discrimination, harassment and retaliation on the basis of factors such as
race or gender is expressly prohibited by many laws and by both the state and
federal constitutions. For greatest relief, two basic sets of laws are most
commonly used: Title VII of the US. Civil Rights Act and the California Fair
Employment and Housing Act (FEHA). Title VII is administered by the US Equal
Employment Opportunity Commission (EEOC); the state administrative agency
is the California Department of Fair Employment and Housing (DEFH). Both
sets of laws are similar though state law creates slightly more liability for
the employer and relief for the employee.
* Both Title VII and FEHA require that you start by pursuing administrative
relief through EEOC or DEFH (don't confuse this with UC administrative
procedures). This gives the agency the opportunity to investigate your claim
and possibly resolve it. With their governmental powers, these agencies can
sometimes obtain information that would be difficult for an individual to
get, so their investigation can be valuable even though it may delay the suit
you will file if no settlement is reached. It is not necessary to file a
complaint with both EEOC and DEFH. If you request cross-filing, either agency
can issue the right-to-sue letters you need to proceed in both state and
federal courts (but be warned that getting a right-to-sue letter stops an
investigation, so don't ask for them prematurely). Some say that EEOC does a
more complete investigation.
* When you are interviewed by the agency you have chosen to file with, it is
important to be as complete and detailed as possible. You should give the
names of all the individuals you believe have violated your rights or engaged
in the conduct you are complaining about; state every basis of discrimination
(race, national origin, color, age, gender, etc.) that might reasonably apply;
and mention ongoing or repeated discrimination that might indicate a
continuing violation or a pattern of discriminatory practice. And if
retaliation for previous complaints may be a factor in your case, be sure to
indicate that, too.
* While they offer similar protection, Title VII and FEHA have quite
different time limits for filing complaints. The federal statute is 300 days
from the date of notification of termination; the state law allows one year
(365 days) and counts from the date of termination. If ongoing
discriminatory conduct, rather than termination, is the subject of the
complaint, it is important that at least the major part of it occurred within
the time limit.
* Filing with EEOC or DEFH protects complaints of discrimination by
stopping the statute of limitations clock. However, the clock continues to run
for ancillary claims such as for defamation, wrongful termination or
demotion, or infringement of speech rights, and for actions brought under
other statutes that do not require filing with an agency. Thus it is important
to consult an attorney as soon as possible to preserve all possible avenues of
redress.
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