Employees' Lawyers Can Swear to Employee's Discrimination Charge

When employees file discrimination charges at the Department of Fair Employment and Housing, they often do not have a lawyer. They must sign the charge for it to be valid, and the signature is "verified," meaning it signifies the charge is signed under penalty of perjury. In Blum v. Superior Court, Blum filed a discrimination charge against his employer, Copley Press and some employees too. But Blum's lawyer signed the administrative charge on his behalf. Copley claimed that Blum's failure to "verify" or swear to his own charge was a defect which invalidated the discrimination complaint and rendered his civil lawsuit fatally defective.

The Court of Appeal started off by saying that a "verified" or sworn charge is a jurisdictional requirement. So far so good. But then the Court said that the Fair Employment and Housing Act does not specifically require the employee alleging discrimination him or herself to provide the verification. So, because the law did not expressly say that the charging party - the person with knowledge of the facts - has to sign his or her own charge, the Legislature did not care who actually swears to the allegations. Stop rolling your eyes, they could get stuck that way.

At the end of the opinion, the Court includes a couple of admonitions for the plaintiff's bar:

We hold an attorney may verify a DFEH complaint for his or her client by subscribing his or her own name to the complaint. The attorney may not verify by signing the client's name. We would, however, caution attorneys about verifying such complaints unless they believe the allegations made therein to be true and they are acting in good faith as they are subject to penalties for perjury if they sign their name to DFEH complaints.

**** Caution: Private musings follow *******

So, let's review. Before a lawyer swears to facts under penalty of perjury in lieu of the client who has personal knowledge of the facts, the lawyer at least should believe the facts are true, and the lawyer should not sign the client's own name. And there I was about to say the Court's decision turned the signature on the charge into something essentially meaningless. Hmmm....I wonder if defense lawyers will start taking depositions of plaintiff's attorneys who sign these charges.

DGV