©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 183 6.14 No Meaningful Duty to Exhaust Administrative Remedies A Title VII plaintiff must, before suing, exhaust administrative remedies by filing a personally verified charge with the EEOC, which can investigate, conciliate, and possibly avoid litigation. California, meanwhile, has systematically removed exhaustion requirements to the point that they have become a mere ministerial formality. First, employment discrimination complainants can bypass any administrative process simply by filing a form with the DFEH to “elect court action” and obtain an immediate right to sue. Second, California complainants need not even sign the administrative paperwork; the complainant’s attorney may sign instead.304 Third, the complainant’s attorney need not even bother with a physical signature; the signature can be electronic.305 Moreover, although the attorney is supposed to give notice of the administrative complaint to the employer, the attorney’s failure to do so will not bar a lawsuit.306 So it is that California employers often learn of an employee’s claim of discrimination only once a lawsuit is served. California also favors complainants when it comes to late administrative filings. Federal law excuses a late administrative filing only under special circumstances, such as where the employer has misled an employee or has concealed facts that the employee needed in order to assert the employee’s rights; there is no tolling of the filing deadline simply because the employee has pursued an internal grievance.307 In California it’s different. The California Supreme Court has held that the deadline for filing an administrative complaint of discrimination under FEHA is tolled while the claimant voluntarily pursues an internal administrative remedy with the employer.308 To tilt the playing field even further to the complainant’s advantage, DFEH regulations provide that “where there is doubt about whether the statute of limitations has run,” the complaint will be accepted and timeliness “investigated and analyzed” during the investigation.309 As a result, it is in the discretion of the DFEH investigator to determine timeliness. A 2020 Court of Appeal decision did put a few teeth in the exhaustion requirement, however, when it held that a plaintiff challenging his employment termination as age discrimination could not rely on a newly amended DFEH administrative complaint to add class and disparate impact allegations. The Court of Appeal upheld the trial court’s denial of request for leave to amend the judicial complaint. The plaintiff, in amending his DFEH complaint more than three years after the DFEH had permanently closed his case, could not rely on the relation-back doctrine, in that the original DFEH complaint could not “bear the weight” of the newly asserted class and impact theories. The original DFEH complaint failed to allege that the employer had discriminated against anyone other than the plaintiff because of age, and did not even suggest that the employer had a policy that fell more harshly on older employees.310 6.15 Use of the Unfair Competition Law to Sue for Discrimination In America generally, laws designed to prevent unfair competition and antitrust violations do not enable employees to sue employers for employment discrimination. In California it’s different. The Court of Appeal has held that the Unfair Competition Law (which has a four-year statute of limitations) enables employees to sue employers for age discrimination, the reasoning being that an employer who engages in that discriminatory practice has obtained an unfair competitive advantage over other employers.311 Employees who sue under this statute, though, typically are limited in remedy to injunctive relief.312
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