Posted by: Professionals In Human Resources Association (PIHRA) | June 2, 2010

California Civil Rights Agency Is Focusing on Large “Pattern-and-Practice” Cases – Recent Trends At The Department Of Fair Employment And Housing

Nicole G. Minkow
Los Angeles Office of Jackson Lewis LL
C

With the steady increase in class action lawsuits in California, it should be no surprise that the California Department of Fair Employment and Housing (“DFEH”) has announced its intent to focus its enforcement powers on collective and class actions.  The DFEH recently re-established its Special Investigations Unit (“SIU”) in 2008 to focus on class actions and complex complaints that may lead to potential precedential decisions in California.  It appears the SIU is focusing on large employers who demonstrate what the DFEH identifies as a pattern and practice of unlawful employment conduct.  Further, the SIU will likely select claims for special investigation that suggest a single employer has engaged in a pattern of discriminatory conduct.  Since its inception, the SIU has recommended the DFEH pursue several class action complaints resulting in significant monetary payments on the part of California employers.  While these types of claims are not new to California businesses, they should serve as a “wake up call” to businesses who have not recently evaluated the company’s policies and employment practices to ensure they comply with California law.

Case Procedure
The DFEH will bring these large cases pursuant to the Fair Employment and Housing Act and specifically, California Government Code section 12961.  The Code authorizes the DFEH to file a complaint on behalf and as a representative of a group or class of individuals.

Upon the SIU’s recommendation for an investigation, a case will be referred to DFEH’s Chief Counsel who, in coordination with the Director of the DFEH, will make a final decision as to whether to proceed with an investigation.  Because the DFEH considers SIU investigations to be a departmental priority, investigators specializing in large-group or class complaints, with oversight by a DFEH staff attorney, will handle such investigations.

In determining which cases to pursue, the DFEH intends to stray from its usual practice of addressing claims in the order in which they are filed.  Instead, the DFEH will use a grading system that prioritizes the handling of cases based on their relative merits.  Cases with higher priority may include, for example, those in which multiple complaints have been filed against a company, a large employer engages in a practice that potentially violates the rights of many employees under California’s Fair Employment and Housing Act, potential damages are large, or novel issues of law are involved.

In cases selected for investigation, DFEH will provide the employer with written notice that will include a list of complainants who filed claims with DFEH, the scope of the class, and the common questions of law and fact among the class members.  DFEH has two years from the date on which the original complaint was filed to conduct an investigation.

Employers against whom the DFEH proceeds in these cases will be offered an opportunity to settle.  Where no settlement is reached, DFEH’s Chief Counsel will conduct a final review of the case.

To date, the DFEH has brought five cases at the initiation of the SIU; three were settled with a total recovery of approximately $750,000 for about 70 employees.
Most recently, the DFEH settled a class complaint on behalf of ten job applicants at a well-known Inland Empire medical center for $259,853.96.  The DFEH alleged the medical center’s failure to hire applicants who failed pre-employment screening tests aimed at screening out those who have or may have carpal tunnel syndrome or repetitive motion injuries, despite the lack of evidence the application could not perform the essential functions of their jobs, constituted disability discrimination.
An ounce of prevention goes a long way.  All California businesses should regularly examine their employment practices and policies to ensure they comply with California law and do not have the potential to disparately impact a group of protected individuals.   Further, front-line management and supervisors should be trained on how to appropriately implement the company’s policies.  This is an easy and cost effective way to raise awareness and potentially prevent administrative charges and costly litigation.

Nicole G. Minkow is Of Counsel in the Los Angeles Office of Jackson Lewis LLP and can be reached at (213) 689-0404 or MinkowN@jacksonlewis.com.  Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law with nearly 650 attorneys practicing in 45 offices nationwide.  To learn more, please visit us at http://www.jacksonlewis.com.

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