Code Section Group

Government Code - GOV

TITLE 2. GOVERNMENT OF THE STATE OF CALIFORNIA [8000 - 22980]

  ( Title 2 enacted by Stats. 1943, Ch. 134. )

DIVISION 3. EXECUTIVE DEPARTMENT [11000 - 15986]

  ( Division 3 added by Stats. 1945, Ch. 111. )

PART 2.8. DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING [12900 - 12996]

  ( Part 2.8 added by Stats. 1980, Ch. 992. )

CHAPTER 7. Enforcement and Hearing Procedures [12960 - 12989.3]

  ( Chapter 7 added by Stats. 1980, Ch. 992. )

ARTICLE 1. Unlawful Practices [12960 - 12976]
  ( Article 1 added by Stats. 1980, Ch. 992. )

12960.
  

(a)  This article governs the procedure for the prevention and elimination of practices made unlawful pursuant to Article 1 (commencing with Section 12940) of Chapter 6.

(b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or the director’s authorized representative may in like manner, on that person’s own motion, make, sign, and file a complaint.

(c) Any employer whose employees, or some of them, refuse or threaten to refuse to cooperate with this part may file with the department a verified complaint asking for assistance by conciliation or other remedial action.

(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows:

(1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence.

(2) For a period of time not to exceed one year following a rebutted presumption of the identity of the person’s employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.

(3) For a period of time, not to exceed one year from the date the person aggrieved by an alleged violation of Section 51.7 of the Civil Code becomes aware of the identity of a person liable for the alleged violation, but in no case exceeding three years from the date of the alleged violation if during that period the aggrieved person is unaware of the identity of any person liable for the alleged violation.

(4) For a period of time not to exceed one year from the date that a person allegedly aggrieved by an unlawful practice attains the age of majority.

(Amended by Stats. 2017, Ch. 799, Sec. 13. (AB 1556) Effective January 1, 2018.)

12961.
  

Where an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group or class of persons of which the aggrieved person filing the complaint is a member, or where such an unlawful practice raises questions of law or fact which are common to such a group or class, the aggrieved person or the director may file the complaint on behalf and as representative of such a group or class. Any complaint so filed may be investigated as a group or class complaint, and, if in the judgment of the director circumstances warrant, shall be treated as such for purposes of conciliation, dispute resolution, and civil action.

(Amended by Stats. 2012, Ch. 46, Sec. 42. (SB 1038) Effective June 27, 2012. Operative January 1, 2013, by Sec. 140 of Ch. 46.)

12962.
  

(a) The department shall cause any verified complaint filed for investigation under the provisions of this part to be served, either personally or by certified mail with return receipt requested, upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of.

(b) Notwithstanding subdivision (a), where a person claiming to be aggrieved by an alleged unlawful practice hires or retains private counsel for purposes of representation of the claim, the private counsel, and not the department, shall cause the verified complaint filed under the provisions of this part to be served, either personally or by certified mail with return receipt requested, upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice.

(c) Service shall be made at the time of initial contact with the person, employer, labor organization, or employment agency or the agents thereof, or within 60 days, whichever first occurs. At the discretion of the director, the complaint may not contain the name of the complaining party unless the complaint is filed by the director or the director’s authorized representative.

(Amended by Stats. 2017, Ch. 799, Sec. 14. (AB 1556) Effective January 1, 2018.)

12963.
  

After the filing of any complaint alleging facts sufficient to constitute a violation of any of the provisions of this part, the department shall make prompt investigation in connection therewith.

(Amended by Stats. 1980, Ch. 1023.)

12963.1.
  

Upon the filing of a complaint under Section 12960, 12961, or 12980:

(a) The department may issue and serve upon an individual, corporation, partnership, association, public entity, or other organization subpoenas to require the attendance and testimony of witnesses by deposition or otherwise, and in connection therewith, to require the production of books, records, documents, and physical materials in the possession of, or under the control of, the individual or organization named on the subpoena.

(b) A subpoena shall be served by delivering a copy of the subpoena to the individual named on the subpoena or to any person who would be eligible to receive service of summons on behalf of the individual or organization named on the subpoena, as provided in Sections 416.10 through 416.90 of the Code of Civil Procedure. A subpoena issued to a person, employer, labor organization, employment agency, or public entity alleged to have committed an unlawful practice in a complaint filed under Section 12960 or 12961 may also be delivered to the agent or representative who has responded to the department concerning the complaint on behalf of such person, employer, labor organization, employment agency, or public entity. The copy of the subpoena may be delivered by personal service, by substituted service in accordance with Section 415.20 of the Code of Civil Procedure, or by certified mail. The affidavit of the individual serving the subpoena setting forth the manner of such service, along with the return post office receipt in the case of mail service, shall be sufficient proof of such service.

(c) A subpoena for appearance and production of books, records, documents, and physical materials shall identify with reasonable particularity the things that are to be produced. The subpoena need not be accompanied by an affidavit showing good cause or the materiality of the things sought to be produced.

(d) A subpoena for appearance and testimony at a deposition or other proceeding issued to a corporation, partnership, association, public entity, or other organization shall state with reasonable particularity the matters on which testimony is sought. The organization served with such a subpoena shall have the obligation of producing as a witness one or more officers, directors, managing agents, or other individuals to testify on its behalf as to the matters specified in the subpoena.

(e) Service of a subpoena shall be made so as to allow the recipient of the subpoena a reasonable time for compliance. No individual named on a subpoena shall be obliged to attend as a witness before the department at a place out of the county in which that person resides, unless the distance is less than 150 miles from the individual’s place of residence or good cause appears why attendance of the witness at greater distance should be required. Each witness who has appeared pursuant to a subpoena shall, upon demand, be paid by the department the same fees and mileage allowed by law to witnesses in civil cases.

(Added by Stats, 1980, Ch. 1023.)

12963.2.
  

Upon the filing of a complaint under Section 12960, 12961, or 12980:

(a) The department may issue and serve written interrogatories on the same individuals and organizations and in the same manner as subpoenas may be issued and served under Section 12963.1. Any corporation, partnership, association, public entity, or other organization to which interrogatories are issued has the obligation of designating one or more officers, directors, managing agents, or other individuals to answer the interrogatories on the organization’s behalf.

(b) Within 30 days after the service of the interrogatories, or such longer time as the department may permit, the recipient of the interrogatories shall serve on the department written answers either responding fully or stating any objection to each interrogatory separately. The answers shall be made under oath and shall be signed by each individual making them, and the answers shall identify which individual has responded to each interrogatory.

(c) When in order to answer an interrogatory it is necessary to make a compilation, abstract, audit, or summary of the business records of the recipient of the interrogatory and such a compilation, abstract, audit, or summary does not exist or is not in the possession or under the control of the recipient, it shall be a sufficient answer to the interrogatory to so state and to specify the records from which the answer may be derived or ascertained and to afford the department reasonable opportunity to inspect and copy or make compilations, abstracts, or summaries from such records.

(Added by Stats. 1980, Ch. 1023.)

12963.3.
  

(a) Depositions taken by the department shall be noticed by issuance and service of a subpoena pursuant to Section 12963.1. If, in the course of the investigation of a complaint, a subpoena is issued and served on an individual or organization not alleged in the complaint to have committed an unlawful practice, written notice of the deposition shall also be mailed by the department to each individual or organization alleged in the complaint to have committed an unlawful practice.

(b) A deposition may be taken before any officer of the department who has been authorized by the director to administer oaths and take testimony, or before any other person before whom a deposition may be taken in a civil action pursuant to Section 2025.320 or subdivision (d) of Section 2026.010 of the Code of Civil Procedure. The person before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the person’s direction and in the person’s presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. All objections made at the time of the examination shall be noted on the deposition by the person before whom the deposition is taken, and evidence objected to shall be taken subject to the objections.

(Amended by Stats. 2005, Ch. 294, Sec. 19. Effective January 1, 2006.)

12963.4.
  

(a) The department may issue and serve requests for production for inspection and copying of books, records, documents, and physical materials in the possession or under the control of an individual or organization. A request for production may be issued and served on the same individuals and organizations and in the same manner as subpoenas may be issued and served under Section 12963.1.

(b) A request for production shall identify with reasonable particularity the things that are to be inspected and shall specify a reasonable time, place, and manner of making the inspection and performing the copying, and may prescribe such terms and conditions as are just.

(c) Within 15 days after service of a request for production or such longer time as the department may permit, the recipient of the request shall serve on the department a written response with respect to each item requested, either stating that inspection and copying will be permitted as requested or objecting to the request and stating the grounds of the objection. Unless a request for production is objected to, the recipient of the request shall thereafter permit the inspection and copying requested by the department.

(Added by Stats. 1980, Ch. 1023.)

12963.5.
  

(a) The superior courts shall have jurisdiction to compel the attendance and testimony of witnesses, the production of books, records, documents, and physical materials, and the answering of interrogatories. If an individual or organization fails to comply with a subpoena, interrogatory, request for production, or examination under oath by refusing to respond fully or objecting thereto, or by obstructing any proceeding before the department, the department may file with a superior court a petition for an order compelling compliance, naming as respondent the individual or organization that has failed to comply. Such an action may be brought in any county in which the department’s investigation or inquiry takes place, but if the respondent is not found within any such county, such an action may be brought in the county of the respondent’s residence or principal office.

(b) The petition shall describe the inquiry or investigation before the department, the basis for its jurisdiction therein, and state facts showing that the subpoena, interrogatory, request for production, or examination under oath was issued or carried out in accordance with the requirements of this part, that the information sought was identified with sufficient particularity to permit response and is reasonably relevant to the inquiry or investigation before the department, and that the respondent has failed to comply. If the petition sets forth good cause for relief, the court shall issue an order to show cause to the respondent; otherwise the court shall enter an order denying the petition. The order to show cause shall be served, along with the department’s petition, on the respondent in the same manner as summons must be served in civil actions, and the order shall be returnable not less than 10 days from its issuance nor later than 45 days after the filing of the petition. The respondent shall have the right to serve and file a written answer or other response to the petition and order to show cause.

(c) Unless otherwise stipulated by the parties, the court shall no later than 30 days after the filing of the petition file its order granting or denying the petition. However, the court may on its own motion for good cause extend such time an additional 30 days. If the order grants the petition in whole or part, the order shall set forth the manner in which the respondent shall comply and the period of time following the effective date of the order within which such compliance is required. A copy of the order shall be served by mail by the clerk upon the parties. If the order grants the petition in whole or in part, the order shall not become effective until 10 days after it is served. If the order denies the petition, it shall become effective on the date it is served.

(d) The order of the superior court shall be final and not subject to review by appeal. A party aggrieved by such order, or any part thereof, may within 15 days after the service of the superior court’s order, serve and file in the appropriate court of appeal a petition for a writ of mandamus to compel the superior court to set aside or otherwise modify its order. If or whenever such review is sought from an order granting discovery, the order of the trial court shall be stayed upon the filing of the petition for a writ of mandamus, provided, however, the court of appeal may dissolve or modify the stay thereafter if it is in the public interest to do so. If or whenever such review is sought from a denial of discovery, the trial court’s order shall not be stayed by the court of appeal except upon a clear showing of probable error.

(e) Within 15 days after the end of the compliance period specified in the final order of the superior court, after the exhaustion of any challenges to the order in higher courts, the department shall in writing certify to the court either that the order has been complied with or that the respondent has failed to comply. A copy of the certified statement shall be served on the respondent by personal delivery or certified mail. After receipt of a certified statement indicating the respondent’s failure to comply with the order, the court may compel obedience to its order by contempt proceedings, and by making such additional orders as may be appropriate. Following such proceedings, the department shall, within 15 days after the respondent complies with the original order of the court, certify in writing to the court that such order has been complied with. A copy of the certified statement shall be served on the respondent by personal delivery or certified mail.

(f) The period of time within which the department is directed to initiate a civil action by Section 12965 shall be extended by the length of the period between the filing of a petition under this section and either (1) the final effective date, after the exhaustion of any challenges to the original order in higher courts, of an order of the superior court denying the petition, or (2) the filing by the department of a certified statement, pursuant to subdivision (e), indicating the respondent’s compliance with the order of the superior court granting the petition in whole or in part, whichever occurs later.

(Amended by Stats. 2012, Ch. 46, Sec. 43. (SB 1038) Effective June 27, 2012. Operative January 1, 2013, by Sec. 140 of Ch. 46.)

12963.7.
  

(a) If the department determines after investigation that the complaint is valid, the department shall immediately endeavor to eliminate the unlawful employment practice complained of by conference, conciliation, and persuasion. The staff of the department shall not disclose what has transpired in the course of any endeavors to eliminate the unlawful employment practice through conference, conciliation, and persuasion.

(b) Any member of the staff of the department who discloses information in violation of the requirements of this section is guilty of a misdemeanor. Such disclosure by an employee subject to civil service shall be cause for disciplinary action under the State Civil Service Act.

(Added by Stats. 1980, Ch. 1023.)

12964.
  

Any agreement entered into by conference, conciliation, persuasion, or other dispute resolution shall be reduced to writing, signed by all parties, and, where the department is a signatory, approved by the director or the authorized representative of the director. Within one year of the effective date of every agreement signed by the department, the department shall conduct a compliance review to determine whether the agreement has been fully obeyed and implemented. Whenever the department believes, on the basis of evidence presented to it, that any person is violating or about to violate any agreement, the department may bring an action in the superior court against the person to enjoin him or her from continuing or engaging in the violation, or from doing anything in furtherance of the violation. In the action an order or judgment may be entered awarding a temporary restraining order or a preliminary or final injunction as may be proper. The action may be brought in any county in which actions may be brought under subdivision (a) of Section 12965. In resolving allegedly unlawful practices through conciliation the resolutions may be in the nature of, but are not limited to, types of remedies that might be ordered after in a civil action.

(Amended by Stats. 2012, Ch. 46, Sec. 44. (SB 1038) Effective June 27, 2012. Operative January 1, 2013, by Sec. 140 of Ch. 46.)

12965.
  

(a) In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the director’s discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the department’s internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that person’s own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendant’s residence or principal office.

For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.

(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.

(c) A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employer’s internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.

(d) (1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:

(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.

(B) The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.

(C) A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.

(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.

(3) This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.

(e) (1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:

(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.

(B) The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.

(C) After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.

(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.

(Amended by Stats. 2017, Ch. 799, Sec. 15. (AB 1556) Effective January 1, 2018.)

12966.
  

Where the department initiates a civil action, or is about to do so, and the party accused of engaging in unlawful practices under this part is a state contractor or is a supplier of goods and services to the state, the director shall send a written notice of the civil action and a copy of the civil complaint to the appropriate awarding agency and request a report of any action which the awarding agency takes in response to the department’s notification and filing of a civil action.

(Amended by Stats. 2012, Ch. 46, Sec. 46. (SB 1038) Effective June 27, 2012. Operative January 1, 2013, by Sec. 140 of Ch. 46.)

12971.
  

If, at any time during the proceedings described in this part, after a complaint has been served on a respondent, the complaint is withdrawn by the complainant or dismissed by the department, or an investigation is terminated or closed by the department, notice of this fact shall be given to the respondent and the complainant without undue delay.

(Added by Stats. 1980, Ch. 992.)

12973.
  

Within one year of the effective date of every final order or decision issued pursuant to this part, the department shall conduct a compliance review to determine whether the order or decision has been fully obeyed and implemented.

(Amended by Stats. 2012, Ch. 46, Sec. 52. (SB 1038) Effective June 27, 2012. Operative January 1, 2013, by Sec. 140 of Ch. 46.)

12974.
  

Whenever a complaint is filed with the department and the department concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this part, the director or his authorized representative may bring a civil action for appropriate temporary or preliminary relief pending final disposition of such complaint. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with Section 527 of the Code of Civil Procedure. An action seeking such temporary or preliminary relief may be brought in any county in which actions may be brought under subdivision (b) of Section 12965. In civil actions brought under this section, the court, in its discretion, may award to the department reasonable attorney’s fees and costs, including expert witness fees, when it is the prevailing party for the purposes of the order granting temporary or preliminary relief.

(Amended by Stats. 2012, Ch. 46, Sec. 53. (SB 1038) Effective June 27, 2012. Operative January 1, 2013, by Sec. 140 of Ch. 46.)

12975.
  

Any person who shall willfully resist, prevent, impede, or interfere with any member of the department or the council or any of its agents or employees in the performance of duties pursuant to the provisions of this part relating to employment discrimination, or who shall in any manner willfully violate an order of the court relating to such matter, is guilty of a misdemeanor, punishable by imprisonment in a county jail, not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or both.

(Amended by Stats. 2012, Ch. 46, Sec. 54. (SB 1038) Effective June 27, 2012. Operative January 1, 2013, by Sec. 140 of Ch. 46.)

12976.
  

Any person who willfully violates Section 12946 concerning recordkeeping is guilty of a misdemeanor, punishable by imprisonment in a county jail, not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or both.

(Amended by Stats. 1983, Ch. 1092, Sec. 134. Effective September 27, 1983. Operative January 1, 1984, by Sec. 427 of Ch. 1092.)

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