FEPA Discrimination Charge and Right-to-Sue Procedure — California

FEPA Discrimination Charge and Right-to-Sue Procedure (CALIFORNIA)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

I. State Statutory Framework and Protected Classes

FEHA (Gov. Code §§ 12940–12996) is California's primary state civil rights statute, enforced by the Civil Rights Department (CRD, formerly the Department of Fair Employment and Housing). FEHA prohibits discrimination, harassment, retaliation, and failure to accommodate by employers with 5 or more employees (1+ for harassment claims).

Protected classes under § 12940(a):

II. State vs. Federal Differences

III. Election of Remedies (State vs. EEOC; Dual-Filing)

CRD and the EEOC operate under a long-standing work-sharing agreement. A claimant who files with CRD is deemed to have cross-filed with the EEOC for federal claims, and vice versa. Election considerations:

• Filing with CRD only: full FEHA remedies; 3-year SOL; mandatory pre-suit exhaustion through verified complaint + RTSL.
• Filing with EEOC only: federal remedies; 300-day SOL; EEOC charge cross-filed will satisfy FEHA exhaustion if dual-filed.
• Concurrent dual-filing (recommended): preserves state and federal claims, allows venue/forum flexibility. Confirm at intake that the charge is dual-filed.
• Immediate Right-to-Sue (no investigation): claimant proceeds directly to Superior Court within 1 year of RTSL. Best where evidence is well-developed and litigation is the chosen path.

IV. Filing Deadline Analysis

Continuing-violation doctrine (Richards v. CH2M Hill, 26 Cal.4th 798): related, reasonably-frequent, not-yet-permanent acts toll SOL to last act.

Equitable tolling under 2 CCR § 10018: tolling where CRD misled claimant, committed processing error, or improperly discouraged filing (Holland v. Union Pacific R.R., 154 Cal.App.4th 940).

V. Damages Available

VI. Right-to-Sue Requirement and Timeline

Part B — Charge of Discrimination (FEHA Filing)

Caption / Header

STATE OF CALIFORNIA — CIVIL RIGHTS DEPARTMENT

INTAKE FORM / VERIFIED COMPLAINT OF DISCRIMINATION

Filed pursuant to Cal. Gov. Code § 12960; Cal. Code Regs. tit. 2, § 10009

CRD Inquiry No.: [____________] | EEOC Charge No. (if cross-filed): [____________]

Date Filed: [__/__/____]

I. Charging Party Information

II. Respondent (Employer) Information

III. Date(s) of Discrimination

IV. Protected Bases (check all that apply)

☐ Race (incl. CROWN Act hair traits) ☐ Color ☐ Ancestry ☐ National origin ☐ Religion/Creed ☐ Sex ☐ Gender ☐ Gender identity ☐ Gender expression ☐ Sexual orientation ☐ Pregnancy/Childbirth/Breastfeeding ☐ Age (40+) ☐ Disability — physical ☐ Disability — mental ☐ Medical condition ☐ Genetic information ☐ Marital status ☐ Military/veteran status ☐ Reproductive health decision-making ☐ Retaliation for protected activity ☐ Association with protected-class member ☐ Other: [________________________________]

V. Particulars (Numbered Factual Allegations)

A. Background

1. Complainant [NAME] was employed by Respondent from [__/__/____] to [__/__/____] as [TITLE] at [LOCATION].

2. Complainant is a member of the following protected class(es): [________________________________].

3. At all relevant times, Complainant was qualified for the position; performance reviews are summarized at Exhibit [____].

B. Discriminatory Conduct

4. On or about [__/__/____], [DESCRIBE DISCRIMINATORY CONDUCT — adverse acts, comments, differential treatment]. [________________________________]

5. The conduct was committed by [NAME, TITLE], who has authority over [hiring/firing/compensation/discipline/work assignment].

6. Specific incidents [list dates and descriptions]:
   - [__/__/____]: [________________________________]
   - [__/__/____]: [________________________________]
   - [__/__/____]: [________________________________]

C. Adverse Action

7. As a result, on [__/__/____] Respondent took the following adverse employment action(s): ☐ Termination ☐ Demotion ☐ Failure to promote ☐ Pay reduction ☐ Discipline ☐ Constructive discharge ☐ Failure to hire ☐ Failure to accommodate ☐ Hostile work environment ☐ Other: [________________________________].

D. Comparator Evidence

8. Similarly situated employees outside Complainant's protected class were treated more favorably. Specifically: [NAME, JOB TITLE, TREATMENT, dates]. [________________________________]

E. Causal Connection

9. The temporal proximity between Complainant's [protected activity / disclosure of protected status / accommodation request] on [__/__/____] and the adverse action on [__/__/____] supports an inference of discriminatory/retaliatory animus.

10. Direct evidence: [statements, written communications, policies] [________________________________].

11. Pretext: Respondent's stated reason — [STATED REASON] — is pretextual because [________________________________].

VI. Statement of Particulars by Reference to Statute

The acts described constitute unlawful employment practices in violation of Cal. Gov. Code §§ 12940(a) (discrimination), 12940(h) (retaliation), 12940(j) (harassment), 12940(k) (failure to prevent), 12940(m) (failure to accommodate disability/religion), and 12940(n) (failure to engage in interactive process), as applicable.

VII. Demand

Complainant requests that CRD:

1. Accept this intake form and prepare a verified complaint pursuant to 2 CCR § 10009;
2. Serve the complaint on Respondent and conduct a full investigation OR ☐ Issue an immediate Right-to-Sue Notice;
3. Award the following remedies through conciliation, hearing, or CRD-prosecuted civil action: back pay, front pay, reinstatement, compensatory damages (including emotional distress), punitive damages, injunctive relief, training and policy reform, attorney's fees, costs, and expert fees;
4. Cross-file with the EEOC under the work-sharing agreement.

Signature and Verification

I, [NAME], declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct based on my personal knowledge.

Executed at [CITY], California, on [__/__/____].

Signature: [________________________________]

Printed name: [________________________________]

Part C — Right-to-Sue Demand Letter

[CLAIMANT / COUNSEL NAME]
[Street Address]
[City, CA ZIP]
[Phone] | [Email]

Date: [__/__/____]

VIA CCRS PORTAL AND CERTIFIED U.S. MAIL

California Civil Rights Department
Attn: Intake Unit / Director's Office
2218 Kausen Drive, Suite 100
Elk Grove, CA 95758

Re: Demand for Right-to-Sue Notice pursuant to Gov. Code § 12965(c)(1)(A) — CRD Matter No. [____________]

To the Civil Rights Department:

1. Complainant [NAME] filed an intake form / verified complaint on [__/__/____] (CRD No. [____________]) alleging violations of Gov. Code §§ 12940 et seq. by Respondent [EMPLOYER].

2. Pursuant to Gov. Code § 12965(c)(1)(A), Complainant hereby ☐ requests an immediate Right-to-Sue Notice OR ☐ demands issuance of a Right-to-Sue Notice on the ground that more than 150 days have passed since the filing of the complaint without civil action by the Director.

3. Complainant requests that the RTSL be issued within ten (10) business days and transmitted via the CCRS portal and U.S. mail to the address above and to undersigned counsel.

4. Complainant reserves all rights, including the right to bring a civil action in California Superior Court within one (1) year of the date of the RTSL pursuant to § 12965(c)(1)(D), and to assert all FEHA and dual-filed federal claims.

Respectfully submitted,

[________________________________]
[NAME / Counsel]

Part D — Civil Complaint (Superior Court Template)

Caption

[ATTORNEY NAME] (SBN [____])
[FIRM NAME]
[Street Address]
[City, CA ZIP]
Telephone: [________________________________]
Email: [________________________________]
Attorneys for Plaintiff [NAME]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [________________________________]

Case No.: [____________]

COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

1. Discrimination in Violation of FEHA (Gov. Code § 12940(a))
2. Harassment in Violation of FEHA (Gov. Code § 12940(j))
3. Retaliation in Violation of FEHA (Gov. Code § 12940(h))
4. Failure to Prevent Discrimination/Harassment (Gov. Code § 12940(k))
5. Failure to Accommodate / Engage in Interactive Process (Gov. Code § 12940(m), (n))
6. Wrongful Termination in Violation of Public Policy (Tameny)
7. Intentional Infliction of Emotional Distress

DEMAND FOR JURY TRIAL

I. Parties

1. Plaintiff [NAME] is and at all relevant times was a resident of [COUNTY] County, California.

2. Defendant [EMPLOYER] is a [California corporation] with its principal place of business at [ADDRESS] and is an "employer" within the meaning of Gov. Code § 12926(d).

3. Plaintiff is ignorant of the true names of Defendants Does 1 through 50 and will amend when ascertained.

II. Jurisdiction and Venue

4. This Court has subject-matter jurisdiction under Cal. Const., art. VI, § 10 and personal jurisdiction over Defendants who reside and do business in California.

5. Venue is proper in [COUNTY] County under Code Civ. Proc. § 395 and Gov. Code § 12965(c)(3) because the unlawful practices were committed in this county and/or Plaintiff would have continued to work in this county but for the unlawful conduct.

III. Exhaustion of Administrative Remedies

6. On [__/__/____], Plaintiff filed a verified complaint with the California Civil Rights Department (CRD No. [____________]) alleging the conduct set forth herein.

7. On [__/__/____], CRD issued Plaintiff a Right-to-Sue Notice. A true and correct copy of the RTSL is attached as Exhibit A.

8. This action is filed within one (1) year of the RTSL pursuant to Gov. Code § 12965(c)(1)(D).

9. Plaintiff has timely exhausted all administrative prerequisites to suit.

IV. Factual Background

10. [Plead the same facts from the Charge particulars — paragraphs IV.A–E above, expanded with additional detail, dates, names, and documentary references.] [________________________________]

V. Causes of Action

FIRST CAUSE OF ACTION — Discrimination in Violation of FEHA (Gov. Code § 12940(a)) — Against [EMPLOYER]

11–20. [Allege protected class membership, qualification, adverse action, circumstances giving rise to inference of discrimination, causation, damages.]

SECOND CAUSE OF ACTION — Harassment (Gov. Code § 12940(j)) — Against [EMPLOYER] and Individual Defendants

21–28. [Severe or pervasive harassment; supervisor or co-worker; employer notice and failure to remediate.]

THIRD CAUSE OF ACTION — Retaliation (Gov. Code § 12940(h))

29–35. [Protected activity; adverse action; causal nexus.]

FOURTH CAUSE OF ACTION — Failure to Prevent (Gov. Code § 12940(k))

36–40. [Predicate violation; absence of reasonable prevention policy/training/investigation.]

FIFTH CAUSE OF ACTION — Failure to Accommodate / Interactive Process (§ 12940(m), (n))

41–46. [If disability/religion claim — known disability, accommodation request, failure.]

SIXTH CAUSE OF ACTION — Wrongful Termination in Violation of Public Policy (Tameny v. Atlantic Richfield, 27 Cal.3d 167)

47–51. [Termination violated fundamental public policies in FEHA and Cal. Const. art. I, § 8.]

SEVENTH CAUSE OF ACTION — Intentional Infliction of Emotional Distress

52–56. [Extreme and outrageous conduct; intent or reckless disregard; severe emotional distress; not preempted by workers' comp where outside normal employment relationship (Livitsanos).]

VI. Prayer for Relief

WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows:

1. General damages, including emotional distress, in an amount according to proof;
2. Special damages, including past and future lost earnings and benefits, in an amount according to proof;
3. Punitive damages against Defendants pursuant to Civ. Code § 3294;
4. Injunctive relief, including reinstatement, policy reform, and mandatory training;
5. Reasonable attorney's fees and costs pursuant to Gov. Code § 12965(b) and Code Civ. Proc. § 1021.5;
6. Expert witness fees pursuant to Gov. Code § 12965(b);
7. Prejudgment and post-judgment interest;
8. Such other and further relief as the Court deems just and proper.

Dated: [__/__/____]

Respectfully submitted,

[________________________________]
[ATTORNEY NAME] (SBN [____])
Attorneys for Plaintiff

Part E — Pre-Filing Checklist

☐ Adverse employment action documented with dates, decision-makers, and written communications

☐ Protected class identified and supported by documentation (medical records, demographic data, religious observance proof, etc.)

☐ Comparator evidence gathered (similarly situated employees outside the protected class who received more favorable treatment)

☐ Pretext evidence preserved (shifting explanations, deviation from policy, statistical disparities)

☐ Personnel file and employee handbook obtained (Cal. Lab. Code § 1198.5; § 432)

☐ Wage records, performance reviews, and disciplinary documents preserved

☐ Witness list compiled with contact information, observations, and dates

☐ Continuing-violation analysis completed (Richards v. CH2M Hill) — chain of acts traced to most-recent event

☐ EEOC dual-filing analyzed — work-share status confirmed; election-of-remedies impact documented

☐ Filing deadline calendared with 30-day buffer before 3-year FEHA SOL and 300-day federal SOL

☐ Damages computed: back pay (mitigated), front pay, emotional distress, out-of-pocket, punitive multiplier

☐ Attorney's fee estimate prepared (lodestar + multiplier under Ketchum v. Moses, 24 Cal.4th 1122)

☐ Right-to-sue election made (immediate vs. post-investigation)

☐ Litigation hold notice sent to employer (preserve emails, Slack, personnel records, surveillance, payroll)

☐ Tax considerations reviewed (back pay taxable as wages; emotional distress damages partially excludable under IRC § 104(a)(2))

☐ Arbitration agreement analyzed for enforceability post-Viking River and AB 51

☐ Insurance coverage assessed (EPLI, D&O) and demand directed accordingly

Sources and References

• California Civil Rights Department: https://calcivilrights.ca.gov
• CRD Complaint Portal (CCRS): https://ccrs.calcivilrights.ca.gov
• FEHA statute: https://leginfo.legislature.ca.gov (Gov. Code §§ 12900 et seq.)
• 2 CCR § 10000 et seq. (CRD regulations): https://oal.ca.gov
• EEOC California work-sharing: https://www.eeoc.gov/field-office/losangeles
• Williams v. Chino Valley Indep. Fire Dist., 61 Cal.4th 97 (2015) (attorney-fee standard)
• Richards v. CH2M Hill, 26 Cal.4th 798 (2001) (continuing violation)
• Holland v. Union Pacific R.R., 154 Cal.App.4th 940 (2007) (equitable tolling)
• Pollock v. Tri-Modal Distribution Servs., 11 Cal.5th 918 (2021) (FEHA SOL and accrual)