Although there are sometimes strategic advantages to waiting for the Department of Fair Employment and Housing (DFEH) or EEOC to complete its investigation of a charge of discrimination instead of filing a lawsuit right away, in many cases, waiting for that might not be the best strategic move, especially if you have already been (wrongfully) terminated and you have a “good” case. This is for two main reasons:
1. DFEH / EEOC rarely issues favorable findings to an aggrieved employee. It seems that in 90% or more of the cases investigated, DFEH concludes that there is insufficient evidence of discrimination and they issues a right to sue letter. This is in large because DFEH has limited resources, and cannot possibly thoroughly investigate every case. In most cases, the investigation of discrimination allegations is limited to interviewing the aggrieved employee and the employer. The employer always denies any wrongdoing, so DFEH has to pick whose word to take. The agency must pick their fights and attend to the most urgent and egregious cases that either affect a larger group of employees or set an example out of a particularly bad employer. They will not issue findings against an employer if the evidence seems to suggest that it’s a 50/50 call. An investigation may take from several months and up to a year or more. The right to-sue-letter issued by the agency is a necessary prerequisite to filing a lawsuit, but can be obtained by an attorney online in about 10 minutes without any actual involvement of DFEH.
2. Waiting for a year or longer to file a lawsuit can also create issues of proof, and make your case harder to win or settle. Memories of events tend to fade, documents get misplaced, lost or “intentionally” lost by employers. E-mails get deleted (often a single e-mail can be of critical important to proving a discrimination or retaliation case). Witnesses tend to move away or change their mind about helping you to testify and corroborate your version of the events. Even if you decide to wait for DFEH to complete its investigation, it is important that you secure sworn statements that are written in a proper form by your witnesses. Doing your “homework” early may prove to be very helpful later in the case, especially when the employer files a motion for summary judgment, which they almost always do, if the case is litigated in court long enough.
Of course there are times when it is a good idea to let the DFEH conduct the investigation and not file a lawsuit right away.