Under the FEHA statute of limitations, the individual must file a charge within three years of the alleged violation.1

The deadline may be extended by 90 days if the individual learns of the alleged violation after the expiration of three years from the date of the occurrence.2 The deadline may be extended by one year if the employee files a claim against the wrong employer because the wrong employer was listed on the employee’s Form W-2.3

Once an employee files a complaint with the CRD, the employee has two choices. The employee can request an immediate “right to sue” notice and proceed to civil court with a lawsuit. Alternatively, the employee can choose to have CRD investigate the complaint.

If the employee chooses the immediate “right to sue” notice, the employee waives any right to have CRD investigate. The employee has one year after receiving the right to sue notice from the CRD to file a civil lawsuit.

If the CRD has deferred investigation of a charge to the EEOC, the one-year time limit for filing a civil suit is “tolled,” or suspended. A deferral can occur if the claimant filed a concurrent charge with the EEOC and the CRD, or if the CRD itself defers the charge to the EEOC for investigation. In certain cases, the EEOC, on deferral from the CRD, reviews the evidence in the case or conducts additional investigation. This delay also tolls the one-year time limit. In these cases, the right to file a civil suit expires when the federal right to sue period expires, or one year from the date of the CRD right to sue notice, whichever is later.4

If the employee chooses to have CRD investigate the complaint, the CRD serves a copy of the complaint on the employer, labor organization or employment agency that is charged with the violation, unless the person who is making the claim is represented by a private attorney. The attorney must serve the complaint either personally or by certified mail, with return receipt requested. The complaint must be served at the first contact with the alleged violator or within 60 days of filing, whichever occurs first.5

The initial burden of proof is on the charging party; you are innocent until proven guilty. The CRD can subpoena records, require deposition testimony, require response to interrogatories and otherwise engage in discovery of the facts.6

The CRD may issue a right to sue letter and terminate its investigation if it finds no basis for the claim, or upon the complaining party’s request. Complainants automatically receive an authorization to file suit if an investigation has not been completed 150 days after filing.7

If the CRD determines substantial evidence exists to support the charge, the CRD will first attempt to remedy the matter by means of conference and conciliation.8

CRD Can File Civil Action

The CRD is authorized to file cases directly in court when the agency believes a complaint is valid and conciliation efforts have failed. If the CRD chooses to file a civil action, it brings the action in the name of the CRD and on behalf of the person claiming to be aggrieved. The aggrieved party has the right to participate in the civil action as a party and be represented by their own counsel. The CRD is also authorized to collect attorneys’ fees and costs when it is the prevailing party in FEHA litigation.

Prior to filing a civil action, the CRD has the authority to require all parties to participate in mandatory dispute resolution in the CRD’s Internal Dispute Resolution Division, free of charge to the parties, in an effort to resolve the dispute without litigation.

• Dispute resolution will be mandatory for all claims for which the CRD will file a civil action.

Although an employee must file a complaint with the CRD to proceed with a suit under FEHA, the CRD does not provide the exclusive remedy for employee challenges to alleged employment discrimination. For example, the California Constitution protects people from sex, race, color, religious and national origin discrimination. Employees who claim constitutional violations or tort claims can bypass the CRD administrative processes and go directly to court to pursue common law claims that are related to employment discrimination but are not covered by FEHA. For example, an employee can bring claims for intentional infliction of emotional distress directly to court.9

Extension of Filing Deadlines

If an employee was subjected to violence or intimidation by threat of violence because of membership in a class that is protected by FEHA, the time limit for filing a complaint is extended for an additional year from the date that the employee becomes aware of the person who caused or threatened the violence. If the employee is unaware of the person’s identity, the maximum time for filing a complaint is three years from the date of the unlawful event.10

A minor has up to one year from their 18th birthday to file a complaint.11

Filing Deadlines Under FEHA Extended While Employee Pursues Internal Complaint Procedure

Employees who voluntarily use employer internal remedies before filing a complaint under FEHA do not risk missing the filing deadline with the CRD. Employees who are claiming a rights violation under FEHA have three years from the alleged violation to file a complaint. However, if they use an employer internal remedy process, the limitations period may be put on hold so they don’t lose the opportunity to sue the employer.12

The law does not require that employees pursue mandatory or voluntary internal remedies before filing a suit or a claim under FEHA. Further, FEHA does not explicitly prohibit an employee from pursuing a CRD claim after the internal process has been initiated or followed.

In McDonald v. Antelope Valley Community College District, the court ruled that the public policy of prompt resolution of claims is supported by encouraging employees to follow internal or alternative dispute resolution. However, their right to pursue a claim using the legal process should not be taken away because employees choose to pursue an internal remedy first.

Filing Deadlines for FEHA Extended Where There Is a Continuing Violation

According to the California Supreme Court, employees who sue for workplace harassment can recover for harassing acts that occurred outside of the statute of limitations. In Richards v. CH2M Hill, Inc., the California Supreme Court held that despite a one-year statute of limitations, if similar harassment continues over a number of years, an employee can recover for illegal actions that occurred more than a year before the lawsuit was filed.13 At the time the case was decided, the statute of limitations for FEHA was one year. California expanded the period to three years beginning January 1, 2020.

In reaching its decision, the Court considered the disability discrimination and harassment claims of a civil engineer who developed multiple sclerosis. A jury awarded $1.4 million to the employee based on evidence that the employer, over a period of five years, ignored or refused most requests for reasonable accommodation. The Court of Appeal reversed the ruling, holding that the engineer was entitled to damages only for the illegal actions that took place during the one-year period before the lawsuit was filed.

The California Supreme Court disagreed, reasoning that the ongoing interactive process of determining reasonable accommodation and correcting incidents of harassment can be time-consuming. With a strict one-year time limit, an employee who continues to work with an employer to come to a mutually satisfactory solution, rather than immediately filing a lawsuit, risks losing the right to sue altogether.

Even if some actions occurred more than one year before the lawsuit was filed, the court held that an employee can recover for a series of unlawful actions if:

• The actions are sufficiently similar.
• The actions occur with sufficient frequency.
• The situation has not reached a stage where the employee knows or should know that further efforts at informal conciliation with the employer would not be successful. For example, if the employer makes it clear that it will not grant further requests for accommodation, the employee knows that working with the employer will not be successful.

Richards v. CH2M Hill, Inc. does not affect the time limits for filing a lawsuit based on a single incident, such as a termination or refusal to hire.

FEHA and Independent Contractors

Under FEHA,14 it is illegal to harass an independent contractor, defined as any “person providing services pursuant to a contract,” on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex,, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status. For more information, see “Independent Contractors and Sexual Harassment” in Harassment Coverage.

Although the law extends protection from harassment to independent contractors, it does not extend any legal protection from discrimination to independent contractors.

Claims Against Religious Organizations

A California Court of Appeal ruled that under the First Amendment, a religious organization is not subject to a civil lawsuit alleging discrimination under FEHA. In Schmoll v. Chapman University, a minister at a church-affiliated university alleged that her pay and hours were cut in retaliation for reporting student complaints of sexual harassment by faculty members. The court found that the First Amendment guarantees a religious institution’s right to decide matters that affect its ministers’ employment, free from the scrutiny and second guessing of the civil courts.15

1. Govt. Code sec. 12960(e) (3)