Anyway, the opinion concerns some procedural issues, so I won't review the facts, which are pretty bad. You can review the opinion here.
The plaintiff in a Fair Employment and Housing Act case must "exhaust" administrative remedies by filing an administrative complaint with the Department of Fair Employment and Housing, and by obtaining a right to sue letter. The agency has reduced this obligation to filing a boiler-plate form online and receiving an immediate right to sue letter. But the filing is still mandatory.
If the employer believes the administrative complaint is not filed, or inadequate to cover the claims in the lawsuit, the employer may raise that issue before trial via motion for summary judgment, demurrer, or judgment on the pleadings. But, the Court of Appeal decided, the employer cannot wait until the end of a trial to seek dismissal of a claim under the Fair Employment and Housing Act on the basis that an employee failed to exhaust her administrative remedies:
If a defendant timely presents the issue of whether a FEHA plaintiff has properly presented all claims to the DFEH, a court must decide the merits of this question. (Keiffer, supra, 65 Cal.App.4th at p. 900.) But “‘it would be grossly unfair to allow a defendant to ignore this potential procedural defense at a time when facts and memories were fresh and put a plaintiff to the time and expense of a full trial, knowing it could assert the failure to exhaust administrative remedies if it received an adverse [judgment].’” (Ibid.; see also Mokler, supra, 157 Cal.App.4th at p. 136 [defendant waived exhaustion defense by “waiting to raise exhaustion until after a full trial on the merits”].)
We therefore disagree with defendants’ underlying premise that exhaustion of administrative remedies affects the fundamental subject matter jurisdiction of the court. Prior to submission of the case for decision, defendants did not request dismissal of the FEHA causes of action based on plaintiff’s failure to exhaust.
The Court of Appeal also addressed the defendants' separate argument that the plaintiff did not establish 5 or more employees worked for the employer, which would establish coverage by the statute. The employer argued on appeal that a common law wrongful termination claim would not be viable if it had fewer than five employees.
But the plaintiff was suing for sexual harassment as well. Sexual harassment requires only one employee. Plaintiff claimed she was forced to quit due to the sexual harassment. Therefore, she argued the public policy applied to the employer, even though it was too small to be held liable for discriminatory or retaliatory termination under the FEHA.
The Court of Appeal decided the plaintiff had the better argument:
all employers (not just those with five or more employees) accused of harassment (based on sex or some other classification listed in Gov. Code, § 12940, subd. (j)(1)) are subject to a FEHA harassment claim. Likewise, because plaintiff’s common law claim is based on sexual harassment, the applicable FEHA public policy applies to employers with less than five employees.
Again, you can read Kim v. Konad USA Distribution, Inc. here.
