Charge of Discrimination Electronically Filed by Attorney is Adequate to Exhaust Administrative Remedies

Generally speaking, exhaustion of administrative remedies is an unnecessary hurdle for an employee to jump over on his or her way to court when filing a discrimination, harassment or retaliation claim. Rickards v. UPS (June 19, 2012), ___Cal.App.4th ___ is just another case demonstrating this same point.

Mr. Rickards had a claim for discrimination against his employer, UPS. The first hurdle in an employment case in the State of California is generally to file a charge of discrimination with the California Department of Fair Employment & Housing (“DFEH”)(depending on the circumstances, an employee may instead file with the Equal Employment Opportunity Commission, and ask that the claim be cross filed with the DFEH). For an employee who has a lawyer and intends to sue, there is generally no productive reason to file such a charge, except that failure to do so may be a fatal flaw in the subsequent lawsuit.

The Department of Fair Employment & Housing set up an online process by which a lawyer can file a charge of discrimination online for an employee. According to the DFEH, this process is set up for employees who have lawyers. As part of the filing, the employee (or lawyer!!) fills out an online form and moves from screen to screen including a screen that acknowledges that the signature is “…under Penalty of Perjury”. Previous case law had already established that an attorney may verify a charge of discrimination with the DFEH on behalf of the client. Blum v. Superior Court (2006) 141 Cal.App.4th 418.

So when Mr. Rickards’ attorney filed his charge online with the DFEH, what could the problem be? UPS acknowledged that the attorney could sign on behalf of the client, but claimed that – due to the nature of the online system – the attorney didn’t really “sign”. UPS was living in the past, or at least hoping that the court was living in the past. UPS tried to argue a fine technicality claiming that the lawyer needed to use ink, or maybe fountain pens, in order to create a signature.

Relying on the Uniform Electronic Transactions Act (Civil Code § 1633.1 et seq.) the California Court of Appeals rejected this position and held that no physical signature was necessary.

Although the use of the administrative process can be helpful for an employee, especially where he or she doesn’t have an attorney, or doesn’t intend to go to court, there is no reason to make an employee jump through unnecessary hoops to get his or her day in court!

Jody LeWitter
August 1, 2012