Untimely Claim of Disability Discrimination May Be Preserved Under Certain Circumstances

The U.S. Court of Appeals for the Ninth Circuit recently held that a plaintiff who fails to timely follow all the administrative procedures under California’s Fair Employment and Housing Act (FEHA) may, nevertheless, be allowed to pursue a discrimination lawsuit, if the plaintiff can show that he was misled by the Department of Fair Employment and Housing (DFEH) into believing that he could not pursue that particular claim of discrimination. [Rodriguez v. Airborne Express, 2001 WL 1044604]

Robert Rodriquez was terminated from his employment with Airborne Express for excessive absenteeism. Almost one year after his termination, Rodriguez went to the DFEH to file a charge of discrimination under FEHA. According to Rodriguez, he told the DFEH consultant that he suffered from severe depression, explained that the depression was the cause of his absences, and asked the consultant to pursue a claim of discrimination based on disability. A DFEH consultant, however, advised Rodriguez that “under the law” the claim of discrimination would have to be based on race, age, national origin, or religion. Therefore, the formal DFEH complaint, which Rodriguez filed, charged Airborne with racial discrimination, not with disability discrimination. Following an investigation of Rodriguez’s complaint, DFEH gave him a right-to-sue letter. Rodriguez hired a lawyer and sued Airborne, claiming disability discrimination under FEHA.

In order to sue under FEHA, a person must file a written charge with DFEH within one year of the discrimination and receive notice from DFEH of the right to sue. The written charge that is filed with DFEH controls the scope of the lawsuit. In other words, claims that are not in the written charge filed with the DFEH cannot be included in a FEHA lawsuit. In this case, Rodriguez did not follow this rule because he did not include a specific claim of disability discrimination in the written charge filed with the DFEH. Moreover, the claims in the DFEH written charge were not broad enough to include disability discrimination; the claims were limited to race discrimination. Therefore, Rodriguez’s lawsuit for disability discrimination would normally be considered untimely because he did not claim disability discrimination in his DFEH charge.

However, under certain circumstances, the time requirements of FEHA may be extended – for instance, where a plaintiff’s failure to timely make a charge with DFEH can be attributed to DFEH. Questions to consider in making this determination are: (1) did the employee diligently pursue his claim; (2) was the employee misinformed or misled by DFEH; (3) did the employee rely on DFEH’s misinformation or misrepresentations; and (4) was the employee acting without a lawyer at the time he filed his charge with DFEH.

In this case, the Court of Appeals determined that Rodriguez presented favorable evidence regarding all of these questions. However, the trial court did not consider this evidence before dismissing Rodriguez’s lawsuit. Therefore, the Court of Appeals sent the case back to the trial court to determine if DFEH misled Rodriguez into believing he could not pursue a claim of disability discrimination under FEHA.

If you have any questions about this Legal Alert, please contact Emily Vasquez, or any attorney in the Employment & Labor Department at (916) 321-4500.