I heard a talk recently by Phyllis Cheng, the director of the California Department of Fair Employment and Housing (“DFEH”). Ms. Cheng walked through the process of resolving employment claims in the department. For cases not processed by issuing an immediate right to sue notice, the department offers numerous opportunities to steer those cases to a negotiated resolution, as opposed to a judicially or administratively determined outcome, and maintains a staff of 11 mediators for the purpose. In all, the number of cases resolved consensually far exceeds the number that the Department prosecutes.
Given the huge numbers of settlements, in contrast to adjudications, we should perhaps think of the DFEH not so much as a law enforcement agency, charged with putting teeth into statutory prohibitions against discrimination, but rather as a conflict resolution service offered by the government to assist parties in dealing with all manner of employment disputes.
That role also appears to flow naturally from the gradual expansion of the department’s mandate. Over time, statutes prohibiting discrimination based on race, sex or religion have expanded their reach to embrace all manner of categories, including age, sexual preference, harassment, etc. Currently, the fastest growing category of cases, according to Director Cheng, is discrimination or failure to make accommodations for disabilities.
I have observed in my own practice of representing clients in employment disputes, that at bottom, many of these claims arise out of actual or perceived unfair treatment of an employee that doesn’t necessarily fit comfortably within the law’s pigeonholes. For example, an employee may have a personality clash with a supervisor, or feel victimized by some new management practice, but cannot simply file a complaint alleging that he or she was treated unfairly at work. The law only allows employees to seek redress for discrimination based on a recognized category. But the perception has gradually taken hold that there should be a remedy for any sort of harassment or unfair treatment at work, whether or not based on such a category.
Given the gradual expansion of categories of discrimination, a complainant can usually find some available legal “hook” on which to hang her complaint. Eventually the real cause of the dispute comes into play, because resolution of the discrimination claim requires the court or the agency or the parties themselves to talk about the claimed underlying unfairness or policy change or personality clash that actually caused the dispute. The difference is that in a lawsuit or administrative adjudication, the determination of whether an adverse employment action was taken for impermissible reasons is supposed to be dispositive, but in a consensual resolution, an employee’s ability to prove that the employer acted for the wrong legal reason may be less important, thus giving the parties the ability to concentrate on their real grievances, whether or not they overlap with legal requirements. (Note that I am not arguing that discrimination has been eliminated, or that claims of discrimination are always pretextual. Discrimination remains a serious problem. What I’m saying is that claims of unfair treatment at work don’t always include legally cognizable discrimination. Yet employees understandably feel aggrieved by any sort of unfair treatment.)
It seems that we are almost to the point–given the agency’s predominant focus on alternative dispute resolution as opposed to adjudication–where the DFEH can deal with any type of workplace unfairness as long as the original complaint is appropriately labeled with a charge of discrimination to get it past the agency’s door. The agency doesn’t yet have an explicit mandate to deal with all types of workplace conflict, even though a lot of workplace conflicts that don’t necessarily arise from legally cognizable discrimination are already sneaking through that door. But private resolution, either within companies’ workplace grievance procedures, or outside them, does have that capacity.