It depends on which track the employee chose. If California’s Civil Rights Department (CRD) served a complaint for investigation, the company owes the CRD a written response, usually within 30 days of service, and mediation may follow. If the employee took an immediate right-to-sue notice instead, the CRD won’t investigate, and the next document is usually a lawsuit. Either way, the administrative complaint sets the outer edge of the FEHA claims the employee can later bring, and that is the employer’s first defense.
What is a CRD complaint, and what is a right-to-sue notice?
A CRD complaint is the administrative charge an employee files before suing under the Fair Employment and Housing Act (FEHA), California’s main workplace discrimination and harassment statute. A right-to-sue notice is the CRD’s letter that generally ends its role so the employee can file in court.
Under Government Code section 12960(c), any person claiming to be aggrieved “may file with the department a verified complaint, in writing,” naming the employer and setting out the particulars. From there the employee picks a path. The CRD’s own regulation, 2 CCR § 10005(a), says an employee “may forgo having the department investigate a complaint and instead obtain an immediate right-to-sue notice.”
That choice matters more to the employer than anything else in the file. A complaint filed for investigation starts an agency process the employer takes part in. An immediate right-to-sue notice skips the agency. Section 10005(b) says that once the notice issues, “the department shall not investigate that complaint,” subject to a narrow discretionary exception if the complainant asks. The same subdivision says that waiving the investigation “is advisable only if a complainant has been instructed by the complainant’s attorney to obtain a right-to-sue notice.” So an immediate right-to-sue notice is a sign that a lawyer may already be involved.
And the notice decides nothing about the merits. On the immediate track, nobody at the CRD has looked at the evidence. Managers sometimes read the notice as a government ruling against the company. It isn’t one, and the response shouldn’t treat it that way.
How do you know which track you’re on?
Look at who delivered the paperwork and what it asks the company to do. A complaint filed for investigation comes with a request for a response. An immediate right-to-sue complaint doesn’t come from the CRD at all.
Government Code section 12962 says the CRD “shall cause any verified complaint filed for investigation” to be served on the employer, by methods that include certified mail and personal delivery. If the employee has hired a lawyer, the same section shifts that job: “the private counsel, and not the department, shall cause the verified complaint” to be served. On the immediate track, 2 CCR § 10021(g) says “The department shall not serve complaints issued in response to requests for an immediate right-to-sue notice, regardless of whether or not a complainant is represented by counsel.”
So a CRD letter asking for a response points to an investigation. A CRD complaint that arrives with a right-to-sue notice already attached points the other way: the investigation was waived, and a lawsuit is likely being prepared or has already been filed.
| Complaint filed for investigation | Immediate right-to-sue notice | |
|---|---|---|
| Who serves the employer | The CRD, or the employee’s lawyer if one is retained (Gov. Code § 12962) | The CRD doesn’t serve it (2 CCR § 10021(g)) |
| Employer’s first deadline | Written response, generally 30 days from service unless extended (2 CCR § 10023) | The response date on the summons, once a lawsuit is served |
| CRD investigation | Yes, including subpoenas and written interrogatories | None, as a rule (2 CCR § 10005(b)) |
| Mediation | Voluntary before a finding, mandatory after a reasonable-cause finding (2 CCR § 10281) | None through the CRD |
| Who may sue | The CRD itself, or the employee after a right-to-sue notice | The employee |
| Early defense lever | A complete, accurate response with documents | Comparing the lawsuit to the administrative complaint |
What should an employer send the CRD when it opens an investigation?
A written response, on time, that tells the company’s side with documents. The deadline is short and the response becomes part of the agency’s record.
2 CCR § 10023(a) provides that, “Unless granted an extension by the department, a written response to a complaint filed for investigation with the department shall be provided to the department within thirty (30) days of service of the complaint” (with an exception for complaints in mediation). The requirement is suspended while the complaint is in mediation, and if mediation is declined or fails, the regulation gives the employer 21 days after the CRD’s notice that a response is due.
The investigation itself has teeth. Under Government Code section 12963, “the department shall make prompt investigation.” The CRD can issue subpoenas for documents and testimony under section 12963.1, and written interrogatories under section 12963.2, which must be answered under oath “Within 30 days after the service of the interrogatories, or such longer time as the department may permit.” Its regulation on investigations, 2 CCR § 10026(e), adds that the CRD “may obtain the complainant’s complete personnel file or files from the respondent.”
If an employer stonewalls, section 12963.5 lets the CRD petition the superior court to compel compliance, and the court may award fees to the CRD if it prevails on the petition. Ignoring the CRD turns a quiet agency file into a court case.
My view on the response itself: write it as if a jury will read it, because some version of it may reach one. Three things go wrong most often. The response states a reason for the decision that doesn’t match the termination paperwork. It attacks the employee’s character instead of explaining the decision. Or it promises documents the company later can’t find. A short response that tracks the records beats a long one that argues.
How does CRD mediation work after the April 2026 rule changes?
There are now two kinds, and they work differently. Mediation before a finding is voluntary. Mediation after the CRD finds reasonable cause is mandatory, and the settlement terms are mostly public.
The CRD reorganized its mediation rules in a new 2 CCR § 10281, filed on February 17, 2026. It became operative April 1, 2026. The older mediation section, 2 CCR § 10025, has been repealed. Under the new section:
The first kind is voluntary pre-determination mediation. The CRD “may, but is not required to, offer” it, and while the complaint is with the dispute resolution division, “the department will suspend pursuit of investigative discovery from the respondent(s).” If mediation is declined or fails, the CRD resumes the investigation.
The second kind is mandatory post-determination mediation. Under § 10281(b)(1), if the CRD finds “reasonable cause to believe that a law it enforces has been violated, the department shall require the parties to participate in a mandatory post-determination mediation.” A CRD legal division attorney participates and must approve and sign any settlement. The statute behind it, Government Code section 12965(a)(2), requires mandatory dispute resolution before the CRD files its own civil action.
Two terms in the new rule surprise employers. First, settlements reached through CRD mediation “are not confidential documents and are public records,” with narrow exceptions: the employee may keep their name out, only in voluntary pre-determination mediation may the parties make the dollar amount confidential, and a deputy director may approve partial confidentiality in exceptional circumstances. Second, every CRD-mediated settlement “shall include affirmative relief,” and the regulation requires it to include “the development of policies or practices to prevent future discrimination, harassment, retaliation, or other unlawful practices.” A related new section, 2 CCR § 10280(e), lets the CRD require the parties to agree in writing to toll deadlines for filing a civil action while conciliation is underway.
For a company that wants a confidential dollar figure, voluntary mediation before any reasonable-cause finding is the only ordinary CRD route to one. A private settlement negotiated outside the CRD is another option, and its release terms should be drafted by counsel.
What changes when the employee took an immediate right-to-sue notice?
The agency phase is over before the employer hears about it. There is no response to write, no CRD mediation, and no investigator to persuade. The employer’s work moves to the lawsuit.
That doesn’t mean the CRD complaint stops mattering. It sets the boundary of the FEHA case. In Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, a published Court of Appeal opinion, the employee’s lawsuit added claims that were “neither like nor reasonably related to his DFEH claim and were not likely to be uncovered in the course of a DFEH investigation,” and the court held his retaliation claim barred. (The CRD was formerly called the Department of Fair Employment and Housing, or DFEH.)
So I’d start any FEHA defense by laying the lawsuit next to the CRD complaint, line by line. Immediate right-to-sue complaints are often short, filled out online, and drafted before the lawyer finished investigating. A lawsuit that adds a new protected category, a new decision-maker, or a new adverse action may have outrun its administrative complaint. Be realistic about it. The CRD’s own rule, 2 CCR § 10003, says the department “shall liberally construe all complaints,” and reads a discrimination complaint to include retaliation or harassment claims the facts support, “regardless of whether such other claims are expressly stated.” So the argument works best against a new theory, not a relabeled one. It’s still worth checking every time, and it can narrow the case early.
Two more checks belong on the same list. One is timeliness: section 12960(e) sets deadlines for filing the administrative complaint, with listed extensions, and acts outside the window can be challenged. The other is the employer’s own paperwork: an arbitration agreement may change where some claims are heard, though it doesn’t decide their merits, and an employment practices liability insurance (EPLI) policy may require prompt notice of the CRD complaint itself, not just the lawsuit.
Can the CRD sue the employer itself?
Yes. The CRD can file its own civil action, and that is the scenario employers should take most seriously.
Government Code section 12965(a)(1) allows the director, when conference, conciliation, mediation, or persuasion fails (or earlier if circumstances warrant), to “bring a civil action in the name of the department, acting in the public interest, on behalf of the person claiming to be aggrieved.” The employee may join as a party with their own lawyer. In a CRD lawsuit, section 12965(d) lets the court order relief that includes training for “all employees, supervisors, and management.”
If the CRD hasn’t filed a civil action within 150 days after the complaint was filed, section 12965(c)(1)(A) requires it to tell the employee that a right-to-sue notice is available on request. If the employee requests the notice, the case can move to a private lawsuit. A complaint the CRD treats as a group or class complaint follows longer timelines, and it suggests the agency sees a pattern, not a single dispute.
What should a company do in the first two weeks?
Whichever track the employee chose, the first two weeks set up everything that follows:
- Issue a litigation hold covering the employee’s personnel file and payroll records, along with timekeeping and scheduling data. Add emails and text or chat messages. Include every version of the policies and handbook in force during the relevant period.
- Calendar the CRD response deadline or the summons deadline, read any arbitration agreement the employee signed, and give notice under any EPLI policy.
- List the decision-makers and witnesses, and make sure no one takes any further action against the employee that could look like retaliation for filing.
- Gather the records behind the complaint: the complaint or report the employee says they made, the discipline and termination paperwork, and any accommodation or leave requests.
- Talk to a lawyer before sending anything to the CRD, contacting the employee or their lawyer, or making a settlement offer.
The firm’s page on defending employment lawsuits in California describes how it approaches discrimination and retaliation claims for employers.
CRD complaint questions from employers
Does a right-to-sue notice mean the CRD decided the employee is right?
No. A right-to-sue notice only closes the CRD’s role. On the immediate track, 2 CCR § 10005(b) generally bars the CRD from investigating, so no one at the agency weighed the evidence. Even after an investigation, the notice isn’t a finding. A reasonable-cause determination is a separate step, and it leads to mandatory mediation and possibly a CRD lawsuit, not to a ruling against the company.
Do we have to respond if the employee already has a right-to-sue notice?
There’s nothing to file with the CRD when the employee took an immediate notice, because the agency closed the matter without investigating. The deadline that counts is the one on the summons once a lawsuit is served. Use the time before then to preserve evidence, give insurance notice, and compare the administrative complaint with any draft demand or complaint from the employee’s lawyer.
Should we agree to CRD mediation?
Often it’s worth considering, and earlier is better. Voluntary pre-determination mediation pauses the CRD’s investigative discovery, and it’s the only ordinary CRD setting where the parties may keep the settlement amount confidential. The tradeoffs are that any CRD-mediated settlement becomes a public record and must include affirmative relief, such as policy changes. Weigh those terms against the cost and exposure of letting the investigation run.
Can we recover our attorney’s fees if the employee loses?
Rarely. Under Government Code section 12965(c)(6), a prevailing employer can’t recover fees and costs “unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” That standard is hard to meet. A prevailing employee, by contrast, can recover fees in the court’s discretion, which is why early case evaluation matters.
What if the employee also went to the EEOC?
Read every agency notice to see which agency is investigating. Under 2 CCR § 10019, a CRD complaint that includes a claim the EEOC also covers “shall be dual-filed with the EEOC, but investigated by the department.” The same rule bars the CRD from accepting a complaint that repeats one the employee already filed with the EEOC against the same employer. Section 12965(e) and (f) add separate tolling rules for dual-filed charges, so calendar from each notice itself.
If your company has received a CRD complaint
If a current or former employee has filed a CRD complaint or served a lawsuit with a right-to-sue notice, the administrative complaint and the company’s own records usually define how large the case can get. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving discrimination or retaliation. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Government Code section 12960, section 12962, section 12963, section 12963.1, section 12963.2, section 12963.5, and section 12965. The CRD regulations are 2 CCR § 10003, § 10005, § 10019, § 10021, § 10023, § 10026, § 10280, and § 10281. The exhaustion case is Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607.
This post is general information about California and federal employment law as of November 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.