As we previously reported to you, while the federal government remains officially shut down as Congress continues its budget negotiations, the Equal Employment Opportunity Commission (“EEOC”) has put into place its shutdown plan. Its plan, found here, focuses its now greatly reduced resources solely on “protecting life and property.”
Since the EEOC has determined that life and/or property might be implicated in new filings, the EEOC will allow the filing of new Charges of Discrimination and the review of those new Charges to decide whether immediate action is needed during the shutdown. As to pending lawsuits, however, the EEOC will only litigate those in which it was not able to obtain continuances and will not provide EEOC witnesses to other cases.
Employers will feel some additional frustration as what can be a lengthy process to request copies of Charge files gets further drawn out during the shutdown. The EEOC makes it clear that Freedom of Information Act requests (most often made by defense counsel) do not implicate life or property, according to the EEOC. The EEOC will also take a break from investigating Charges.
What does this mean for California cases? It means that even more of them will start in the state employment practices agency, the Department of Fair Employment and Housing (“DFEH”). While this agency has always been the “go to” agency for California employees because of California’s employee-friendly laws, it has looked even more appealing during the shutdown. Normally, California cases get filed as Charges of Discrimination with the DFEH because plaintiffs’ lawyers would rather pursue an EEO case through the state courts, where summary judgment opposition deadlines are much longer and they can win a jury trial without the federal requirement of a unanimous jury. In addition, plaintiffs’ lawyers can file a Charge and seek an immediate Notice of Right to Sue (a required prerequisite to a court case) online. The DFEH also has a one year statutory limit on its investigation time. The EEOC has none. Only time will tell how the DFEH will handle the increased volume due to the EEOC shutdown.