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Neuman and Charles E. Introduction A common provision found in the various federal and California employment discrimination statutes is the requirement that generally one must file a timely and appropriate administrative claim before resorting to the courts.

This article addresses the deadlines for filing administrative claims, the maze of laws that lead to those deadlines, and the deadlines for filing suit in the courts. The major statutory schemes on which the bulk of all California employment discrimination litigation is based and which are the focus of this article are: Each of these schemes contains provisions that require an administrative charge be filed before bringing legal action.

The Administrative Filing Requirement The Theory Behind the Requirement The administrative filing requirement, although potentially harsh in effect, is laudable in purpose.

Theoretically, the filing of an administrative claim will trigger the investigatory and conciliatory procedures of the appropriate administrative body, with the hope that unlawful employment practices can be resolved and eliminated informally.

Sanchez v Standard Brands, Inc. If successful, the need for judicial involvement may never arise, thereby easing the burden on the court system, maximizing the use of presumed administrative agency expertise, and providing a more economical and less formal means of resolving the dispute.

Rojo v Kliger 52 C3d 65, 83, CR Timing of Administrative Charge Perhaps the number one mistake made by plaintiffs in employment discrimination lawsuits is the failure to file a timely charge with the appropriate administrative body.

The one-year FEHA limitation is extended by a maximum of 90 days if the claimant does not learn of the facts of the alleged unlawful act until more than one year after its occurrence. Thus, to be safe, defendants should plead as affirmative defenses both failure to properly exhaust administrative remedies and failure to comply with the statutes of limitation.

Both defenses should be raised because, although technically the failure to file a timely administrative claim is a failure to properly exhaust administrative remedies, case law tends to treat this as a statute of limitations issue.

This discussion is for those interested in the law supporting these simple conclusions. Each statutory scheme further provides, however, that when the alleged discriminatory practice occurs in a state or locality that has its own antidiscrimination laws and enforcement agency, and the individual first pursues state or local law remedies, the time to file an EEOC charge is extended to days, or until 30 days after receiving notice that the state agency has terminated its proceedings under state law.

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Complicating matters further, when state law prohibits the alleged discriminatory practice and provides an enforcement mechanism, the EEOC generally lacks jurisdiction over any Title VII or ADA charge until 60 days after a state administrative action is commenced, or until the state agency terminates its proceedings.

This means that when state and federal laws overlap, the state agency must process the charge first. For example, if the initial charge filed by an aggrieved person was with the EEOC and was filed days after the discriminatory act, the EEOC would be precluded from processing the matter for 60 days.

By the time the EEOC was authorized to consider the matter, days would have expired following the act of discrimination, and the charge would be deemed untimely. Thus, a filing with one agency generally can constitute a filing with the other. Moreover, in states where the time for filing a state claim is less than days, a claimant is afforded the extended federal filing period even when his or her filing renders the state claim untimely.

The DFEH has expressly waived its day initial processing right of all claims and defers actions filed between and days of the alleged unlawful practice to the EEOC. This waiver effectively terminates the state administrative proceedings and gives the EEOC jurisdiction over any complaint filed within days of the alleged illegal act.

When the Time Period Commences Determining the precise event that signals the commencement of the time within which to file an administrative charge is not necessarily a simple task, since each situation must be evaluated on a case-by-case basis. This article does not attempt to fully discuss this issue, but briefly addresses one of the major areas of controversy.

For claims of discriminatory termination, the major issue is whether the time commences on termination, or on notice that termination will occur. Under federal law, this issue has been resolved; the time will run on notice.

Thus, in Delaware State College v Ricks US, 66 L Ed 2d, S Ctthe court held that the claim accrued not when the plaintiff was fired, but when he learned that he had been denied tenure, because on the facts presented, eventual termination was an inevitable consequence of the tenure denial.

Under California law, appellate courts have rendered conflicting holdings. In Regents of the Univ. This, of course, coincides with the federal approach.

Of course, each case should be carefully scrutinized. Matters can become quite complicated, particularly when the claimant has reason to know or suspect the discriminatory act before it occurs see, e. Under Subchapter I, a plaintiff clearly must exhaust administrative remedies.

If a plaintiff proceeds under Subchapter II, however, an argument exists that the plaintiff need not exhaust. The court in Petersen v University of Wisconsin Bd. It appears that the public entity in Petersen did not advance a cogent argument to the contrary.

See Petersen v University of Wisconsin Bd. Thus, a solid argument can be raised that an individual may file an action against a public entity for employment discrimination under Subchapter II of the ADA directly in a court of law, without first exhausting administrative remedies.

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However, if the public entity has less than 15 employees, or if the administrative filing period has already expired, an action filed directly in court should be considered. Even when an aggrieved individual has invoked the administrative mechanisms under Subchapter I, it is advisable that a Subchapter II claim also be pleaded in a subsequent judicial action any time a public entity is being sued.Zawadzkas Law is a family business that represents people who have been arrested for drunk driving on Cape Cod, Massachusetts.

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Articles: Basic Filing Deadlines for California Employment Discrimination Cases. Originally published in California Civil Litigation Reporter (September ), by Farley J. Neuman and Charles E. Perkins. Introduction.

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A common provision found in the various federal and California employment discrimination statutes is the requirement that generally one must file a timely and appropriate.

Thus far, this guide has described how to cite cases in long form, i.e., how you cite a case for the first time in a document.

Because you will often cite a case (and other legal materials) multiple times in a document, The Bluebook has established a "short form" for use in subsequent citations. The main rule that describes the short form for cases is Rule

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