SB 807 – Modifies DFEH’s Procedures For Enforcing Civil Rights Laws, Extends Employer Retention Requirement For Specified Employment Records

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Nonprofit News, Private Education Matters, Public Education Matters
CLIENT TYPE: Nonprofit, Private Education, Public Education, Public Employers, Public Safety
DATE: Oct 29, 2021

Under existing law, the California Fair Employment and Housing Act (FEHA), establishes the Department of Fair Employment and Housing (DFEH) to enforce civil rights laws with respect to housing and employment.  The FEHA makes certain discriminatory employment and housing practices unlawful, and authorizes a claimant to file a verified complaint with the DFEH.  The FEHA requires the DFEH to investigate administrative claims, and to attempt to resolve disputes through alternative dispute resolution (ADR).  If ADR fails and the DFEH finds the claim has merit, the FEHA authorizes the DFEH director to bring a civil action in the name of the DFEH on behalf of the claimant within a specified amount of time.

Senate Bill 807 (SB 807) authorizes the DFEH and a party under DFEH investigation to appeal adverse superior court decisions regarding the scope of DFEH’s power to compel cooperation in the investigation within 15 days after the adverse decision.  SB 807 further directs courts to give precedence to the appeal and to make a determination on the appeal as soon as practicable after the notice of appeal is filed.  SB 807 authorizes courts to award attorney’s fees and costs to the prevailing party in the action, except for a prevailing defendant, unless the court determines that the DFEH’s petition was frivolous when filed or that the DFEH continued to litigate the matter after it clearly became frivolous.

SB 807 also extends the employer record retention requirement from two to four years when a complaint has been filed.

SB 807 changes the deadlines by which some complaints for violations of civil rights laws must be filed with the DFEH.  Under current law, the FEHA prohibits filing a complaint with the DFEH alleging certain civil rights violations one year after the unlawful practice occurred.  The FEHA prohibits filing a complaint alleging a sexual harassment claim that occurred as part of a professional relationship three years after the unlawful practice occurred.

SB 807 also tolls the statute of limitations, including retroactively, but without reviving lapsed claims, for filing a civil action based on specified civil rights complaints under investigation by DFEH until:

a) The DFEH files a civil action for the alleged violation; or

b) One year after the DFEH issues written notice to a complainant that it has closed its investigation without electing to file a civil action for the alleged violation.

SB 807 also authorizes the DFEH or counsel for a complainant to serve a verified complaint on the entity alleged to have committed the civil rights violation by any manner specified in the Code of Civil Procedure.

Moreover, SB 807 enables the DFEH to bring an action to compel cooperation with its discovery demands in any county in which the DFEH’s investigation takes place, or in the county of the respondent’s residence or principal office.

Further, SB 807 authorizes the DFEH to bring a civil action to enforce the FEHA in any county where:

a) The unlawful practices are alleged to have been committed;

b) Records relevant to the alleged unlawful practices are maintained and administered;

c) The complainant would have worked or had access to public accommodation but for the alleged unlawful practice;

d) The defendant’s residence or principal office is located; or

e) If the civil action includes class or group allegations on behalf of DFEH, in any county in the state.

SB 807 tolls the deadline for DFEH to file a civil action while a mandatory or voluntary dispute resolution is pending.

SB 807 clarifies that, for any employment discrimination complaint treated by the DFEH as a class or group complaint, the DFEH must issue a right-to-sue notice upon completion of its investigation, and not later than two years after the filing of the complaint.

SB 807 also removes a provision of the FEHA prohibiting a complainant from commencing a civil action with respect to an alleged discriminatory housing practice that forms the basis of a civil action brought by DFEH.

(SB 807 amends Sections 12930, 12946, 12960, 12961, 12962, 12963.5, 12965, 12981, and 12989.1 of the Government Code.)

View More News

Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Nonprofit News, Private Education Matters, Public Education Matters
SB 331 – Expands Existing Restrictions Against Employment-Related Non-Disparagement Agreements And Non-Disclosure Clauses In Settlement Agreements
Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Nonprofit News, Private Education Matters, Public Education Matters
AB 1033 – Expands CFRA To Protect Leave Taken To Care For A Parent-In-Law; Changes Mediation Requirements For Suits Against Certain Small Employers