Employees have the right to pursue remedies for discrimination with both state and federal agencies and in both state and federal courts. The outcome of a claim will often hinge on the jurisdiction where the claim is heard. If properly handled, you may be able to convince one agency to defer processing a claim that is pending before another agency. Your attorneys may seek to litigate a case in one court system rather than another because of some perceived advantage. In any case, knowledge of the procedural aspects of responding to a claim is invaluable and may determine the success of a defense.

Consider encouraging or requiring the use of alternate dispute resolution techniques to resolve employment discrimination claims. Both the EEOC and the DFEH established mediation processes to encourage early and informal claim settlement. In addition, many employers attempt to convince or require employees to resolve discrimination issues through the use of arbitration.

California law limits confidentiality provisions in certain kinds of settlement agreements. Any settlement agreement in a case where sexual harassment, assault or discrimination has been alleged may not include a confidentiality provision prohibiting disclosure of factual information regarding the claim. However, plaintiffs retain the right to request provisions that shield their identity. Any settlement agreement with the prohibited provisions that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.1

The law prohibits the use of a provision in a settlement agreement that prevents or restricts an “aggrieved person” (someone who, in “good faith,” failed a claim against their employer, either in court, before an agency, in an alternative dispute resolution forum or through the employer's internal complaint process) from obtaining future employment with the employer, commonly called a "no re-hire" clause. However, there is an exception allowing no re-hire clauses where the employer has made and documented a good faith determination, before the individual filed their claim, that the person committed sexual harassment, sexual assault, or any criminal conduct. 2

Because of the complexity of dealing with employment discrimination claims, consult with counsel or other experienced resources immediately upon receiving notice of a discrimination claim against your company.

1. Code of Civil Procedure sec. 1001

2. Code of Civ. Proc. sec. 1002.5