USA – CALIFORNIA Law and Practice Contributed by: William C. Martucci, Laura M. Booth, Ashley N. Harrison and Carrie A. McAtee, Shook, Hardy & Bacon LLP
8. Disputes 8.1 Wrongful Dismissal
tions apply to all employees, regardless of the size of their employer. FEHA provides a range of remedies for employees who experience discrimination, including reinstate - ment, back pay, injunctive relief, and damages. The Department of Fair Employment and Housing (DFEH) is tasked with investigating complaints, conciliating disputes, and prosecuting violations. FEHA is intend - ed to supplement, not replace, other remedies for employment discrimination, allowing employees to pursue common law claims alongside statutory claims. 8.3 Digitalisation California does not have any blanket proscription against or requirement for the digitalisation of employ - ment disputes. However, it is common for California courts and agencies to hold remote hearings at their discretion. Different types of employment claims are subject to different litigation processes depending on the under - lying claim. Discrimination, Harassment, and Retaliation Claims Under California law, employees who wish to bring a claim for employment discrimination, harassment, or retaliation must exhaust their administrative remedies before filing a lawsuit in state court. To exhaust their remedies, employees must first file a complaint with the California DFEH, which investigates the claim. Fol - lowing an investigation, the DFEH attempts concilia - tion, an informal dispute resolution process between the employee and employer that avoids resorting to the courts. If that fails, the DFEH may go forward with an agency hearing. An employee can also seek a Right-to-Sue letter from the DFEH, which allows the employee to proceed with litigation immediately. This letter satisfies the require - ment that the employee exhaust his or her administra - tive remedies. 9. Dispute Resolution 9.1 Litigation
California recognises a few avenues for an employee to bring a wrongful dismissal claim. First, a worker may sue for wrongful dismissal if the termination vio - lates public policy. Some examples of terminations that are against public policy include dismissals for refusing to commit perjury, filing workers’ compen - sation claims, protesting unsafe working conditions, or reporting criminal activity. More broadly, wrongful dismissal claims are available if the employee is ter - minated because he or she exercised statutory rights or refused to violate the law. California also allows wrongful dismissal claims if the dismissal breaches an implied contract or the implied covenant of good faith and fair dealing. An employer can create an implied contract by making promises of job security, writing out written termination guide - lines, or making assurances that an employee will not be terminated without good cause. Breaking one of these or similar promises can be grounds for a wrong - ful dismissal claim. Technically, California also recognises wrongful ter - mination claims based on discriminatory terminations that violate FEHA. However, FEHA has its own statu - tory system of recovery, which supplants the common law wrongful dismissal claim in practice. 8.2 Anti-Discrimination California law protects all employees from employ - ment discrimination and harassment on the basis of race, religious creed, colour, national origin, ancestry, physical disability, mental disability, medical condi - tion, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual ori - entation, reproductive health decision-making, and veteran or military status. FEHA requires employers to provide reasonable accommodations to employ - ees with physical or mental disabilities. Furthermore, FEHA protects employees from retaliation for assert - ing these rights. FEHA applies to all employers with five or more employees. However, FEHA’s anti-harassment protec -
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