190 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com different. The California Supreme Court has held that the deadline for filing an administrative complaint of discrimination under FEHA is tolled while the employee voluntarily pursues an internal administrative remedy with the employer.317 To tilt the playing field even further to the employee’s advantage, DFEH regulations provide that “where there is doubt about whether the statute of limitations has run,” the complaint will be accepted and timeliness “investigated and analyzed” during the investigation.318 As a result, it is in the discretion of the DFEH investigator to determine timeliness. In 2020, however, the California Court of Appeal did put a few teeth in the exhaustion requirement. It held that a plaintiff challenging his employment termination as age discrimination could not rely on a newly amended DFEH administrative complaint to add class and disparate impact allegations. The Court of Appeal upheld the trial court’s denial of request for leave to amend the judicial complaint. The plaintiff, in amending his DFEH complaint more than three years after the DFEH had permanently closed his case, could not rely on the relation-back doctrine, in that the original DFEH complaint could not “bear the weight” of the newly asserted class and impact theories. The original DFEH complaint failed to allege that the employer had discriminated against anyone other than the plaintiff because of age, and did not even suggest that the employer had a policy that fell more harshly on older employees.319 6.15 Use of the Unfair Competition Law to Sue for Discrimination In America generally, laws designed to prevent unfair competition and antitrust violations do not enable employees to sue for employment discrimination. In California it’s different. The California Court of Appeal has held that California’s Unfair Competition Law (which has a four-year statute of limitations) enables employees to sue employers for age discrimination. The Court reasoned that an employer who engages in that discriminatory practice has obtained an unfair competitive advantage over other employers.320 Applying this rationale, any act of discrimination based on a protected characteristic is likely actionable under the UCL. Employees who sue under this statute, though, typically are limited in remedy to injunctive relief and restitution.321 6.16 Disregard of Federal Evidentiary Doctrines 6.16.1 Rejection of the “stray remarks” rule Courts outside California generally dismiss or grant summary judgment against discrimination claims based on “stray remarks”—remarks made remote in time or otherwise disconnected from the challenged employment decision, remarks not made by anyone who made or influenced the decision, or remarks not directed to the plaintiff.322 In California it’s different. The California Court of Appeal, in reversing a summary judgment for the employer in an age discrimination case, broadly repudiated the “so-called ‘stray remarks’ rule.” The Court reasoned that the rule would impermissibly permit trial judges to weigh evidence in ruling on motions for summary judgment.323 The California Court of Appeal concluded that the plaintiff should have been able to thwart summary judgment with his assertions that co-workers (who had no apparent connection with the challenged employment decision) had called him “slow,” “fuzzy,” “sluggish,” and “lethargic.” In 2010, the California Supreme Court affirmed this reasoning, concluding that the alleged comments should be considered with all the evidence in the record.324 6.16.2 Rejection of the “same actor rule” In America generally, courts follow, or at least give some weight to, the “same actor rule”: Where the same actor both hired and fired the same discrimination plaintiff within a short period of time, an inference arises that there
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