California Notice of Violation Statute of Limitations

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					                                                                                             December 30, 2008

                Statute of Limitations for FEHA Claims on the Verge of Extinction
                              By: Jennifer Brown Shaw and Shane K. Anderies

The California Fair Employment and        them. If the DFEH decides not to          the violation consists of a course of
Housing Act (FEHA) requires an            prosecute the claims, it must give the    discriminatory conduct against a
employee to file an administrative        employee notice of his right to file a    single individual, as opposed to a
complaint of discrimination,              civil lawsuit. The employee has one       single action in time, the claim may
harassment, or retaliation within one     year from receipt of the “right to sue”   be timely even if most or nearly all of
year of the alleged unlawful              letter to file a lawsuit. This is a       the objectionable conduct occurred
employment practice. This statute         second statute of limitations.            outside the limitations period.
of limitations provides employees
with time to assert their claims. It      The Continuing Violations Doctrine In 2005, in Yanowitz v. L’Oreal USA,
also protects employers from stale                                              Inc., the California Supreme Court
claims, faded memories, and               A “continuing violation” occurs       expanded the continuing violation
unavailable witnesses, and makes it       when the employer’s unlawful          doctrine to apply to retaliation
easier for the administrative agency      conduct begins before the             claims. Yanowitz refused her
involved (the Equal Employment            limitations period and “continues”    supervisor’s instructions to fire a
Opportunity Commission (EEOC)             into the limitations period.          female sales associate and replace
or the state Department of Fair           In Richards v. CH2M Hill, Inc., a     her with someone more attractive.
Employment and Housing (DFEH))            2001 decision, the California         Yanowitz alleged her supervisor
to investigate, obtain documents,         Supreme Court described the           began criticizing her performance,
find witnesses, etc.                      continuing violation doctrine in      including in written performance
                                          response to an employee’s claim of    evaluations. Yanowitz was never
Two judicially created exceptions to      disability harassment and failure to fired or demoted; nor did she suffer a
the statute of limitations, the           accommodate. The Court explained decrease in salary or benefits.
“continuing violation doctrine” and       that when an employer engages in a Nevertheless, Yanowitz took
“equitable tolling,” extend the time      continuing course of unlawful         disability leave because of stress she
for an employee to file a complaint.      conduct under the FEHA by refusing allegedly suffered as a result of her
As the courts expand both doctrines,      reasonable accommodation or           negative performance reviews.
they are swallowing the rule and          engaging in harassment, the statute
driving the FEHA statute of               of limitations does not begin to run More than one year after her
limitations to the brink of               when the employee first believes her supervisor’s criticisms of her work
extinction.                               rights may have been violated.        performance, Yanowitz filed a
                                          Rather, the statute begins running    complaint with the DFEH claiming
The FEHA Statute of Limitations           when the course of conduct is         retaliation. Applying the Richards
                                          brought to an end, for example,       continuing violation analysis, the
The DFEH investigates complaints          when an employee resigns, or when Yanowitz court found the
of discrimination, harassment, and        the employee is on notice that        supervisor’s unfavorable
retaliation under the FEHA. An            further efforts to end the unlawful   performance evaluations and
employee must file a complaint with       conduct will be in vain.              criticisms of Yanowitz over time to
the DFEH before filing a civil lawsuit                                          be a continuing violation for the
based on the same or similar claims.      The Richards court distinguished      purpose of including that conduct
As stated, an employee has one year       discrimination claims that involve a within the limitations period. The
from the alleged unlawful act to file a   single discrete act such as a         Court explained there is no
complaint with the DFEH. The              termination or demotion. The          requirement that an employer’s
DFEH then investigates the claims         traditional limitations analysis will retaliatory acts constitute one swift
and decides whether to prosecute          apply to those discrete acts. But, if
blow, but rather may constitute a        unjust and technical forfeitures of       internal procedure provided the
continuing pattern of conduct.           the right to a trial on the merits        employee with a “quasi-judicial”
                                         when the purpose of the statute of        hearing. A “quasi judicial” hearing is
Most recently, on November 21,           limitations—timely notice to the          one in which employees have
2008, a California Court of Appeal in    defendant of the plaintiff’s claims—      adequate notice and opportunity to
Dominguez v. Washington Mutual           has been satisfied. Broadly speaking,     appear and present evidence
Bank applied the continuing              the doctrine of equitable tolling         supporting their claims.
violation doctrine to overturn           applies when an injured person has
summary judgment in favor of an          several legal remedies and,               Most recently, a California Court of
employer, even though the employee       reasonably and in good faith,             Appeal in McDonald v. Antelope
failed to timely file a complaint of     pursues one. Therefore, it may apply      Valley Community College Dist.
sexual orientation discrimination        to FEHA claims where                      further expanded the equitable
with the DFEH. A lesbian employee        administrative remedies must be           tolling doctrine to apply to an
complained to her supervisors that a     exhausted before a second action can      employee’s voluntary pursuit of
coworker repeatedly made offensive       proceed.                                  alternative remedies, even if the
comments about her sexual                                                          employee later decides to voluntarily
orientation. The coworker stopped        California Courts have long held          abandon pursuit of her internal
making the comments after                that where exhaustion of an               grievance. We wrote about the
Dominguez complained. According          administrative remedy is mandatory        McDonald decision in a previous
to Dominguez, however, the               prior to filing suit, equitable tolling   article. In short, an employee filed
coworker started interfering with        is automatic. For example, where an       an internal grievance with the school
her work in other ways, such as by       employee files a complaint with the       district accusing it of failing to
blocking Dominguez’s access to her       DFEH, the one year period for the         promote her based on her race. In
work station and by intentionally        employee to file a civil lawsuit is       the middle of the internal
jamming the mail sorting machine         tolled until the DFEH completes its       proceeding, the employee also filed a
Dominguez used.                          investigation. A recent string of         DFEH complaint—more than one
                                         California cases addressed whether        year after she was denied the
Dominguez filed a complaint with         an employee must use an employer’s        promotion. Nevertheless, because
the DFEH more than one year after        internal grievance procedures before      the employee had filed an internal
the last offensive comment made by       filing suit against the employer and      complaint with the school district
her coworker. The Court of Appeal        to what extent an employee’s use of       within one year of the denial of
held Dominguez’s claims were not         those procedures tolls the statute of     promotion, the court determined the
barred by the one-year statue of         limitations.                              school had sufficient notice of the
limitations. The court reasoned that                                               claim. Therefore, the FEHA statute
her coworkers’ interference with her    Earlier this year, in Ahmadi-Kashani       of limitations was tolled during the
work was similar enough to their        v. Regents, the California Court of        pendency of the district’s internal
verbal taunts so that the alleged       Appeal determined that employees           proceedings.
harassment had not yet acquired a       are not required to utilize an
“degree of permanence,” the             employer’s internal equal                  An Effective EEO Policy and
standard for when the statute of        employment opportunity procedure           Complaint Procedure Can Provide
limitations begins to run. Although     before receiving a right-to-sue letter     More Certainty
the comments fell outside the one       from the DFEH and pursuing a claim
year statute of limitations, the court  against the employer. In a previous        Many employers already believe the
considered them to be part of a         case, Schifando v. City of Los             one-year time period for employees
single, continuous violation and        Angeles, the California Supreme            to make complaints of unlawful
therefore within the limitations        Court held that an employee who            conduct in the workplace is too long.
period.                                 chose to participate in the                In one year, documents may be lost
                                        employer’s internal procedure had to       and witnesses may have moved or
Equitable Tolling                       see that procedure through to its          their memories may have faded. By
                                        completion and exhaust any judicial        the time an employee makes a
Like the continuing violation           review process before pursuing a           complaint, the employer may already
doctrine, equitable tolling of statutes claim with the DFEH. The court in          be at a significant disadvantage in
of limitations is a judicially created Ahmadi-Kashani decided that this            preparing the defense of its case.
principle. It is designed to prevent    rule applies only if the employer’s        The continuing violation and
equitable tolling doctrines can                                             An effective EEO policy and
                                                  action. Moreover, even if an
operate to further broaden an                                               complaint procedure can operate to
                                                  employer takes immediate and
employer’s liability and to weaken                                          reduce or eliminate the uncertainty
                                                  appropriate corrective action in
an employer’s defenses at the same                                          associated with the timely filing of
                                                  response to an employee complaint,
time.                                                                       employee complaints. They increase
                                                  the employer must ensure the
                                                                            the likelihood an employer will have
                                                  inappropriate conduct does not
Continuing violations occur when                                            prompt notice and an opportunity to
                                                  continue. Dominguez makes clear
employers fail to proactively deal                                          respond to employee complaints.
                                                  that rule applies to any “similar”
with inappropriate conduct in the                                           Supervisors properly trained on an
                                                  inappropriate conduct in the future.
workplace or to follow up on                                                employer’s internal EEO policy and
employee complaints. It is not        Employers with internal “grievance” complaint procedure can also assist
enough for employers simply to have or complaint procedures should          to identify and respond to any
an EEO policy that encourages         consider how delay will affect future pattern of inappropriate employee
employees to report claims of         litigation. Equitable tolling can     conduct that may lead to a
unlawful conduct. Employers           continue as long as the employer’s    continuing violation. An EEO policy
should not wait for employees to      internal proceedings continue         can also dictate how and when the
complain or for obvious policy        without a final decision. Employers employer’s internal proceeding
violations before acting. Odds are    must therefore quickly and            comes to an end so that an employer
that similar conduct occurred before effectively investigate and resolve    has better control over when the
the complaint or policy violation.    employee complaints. Common           statute of limitations begins running
Moreover, although isolated           occurrences such as busy work         for an employee to file an outside
instances of past misconduct may be schedules, employee vacations,          complaint. With the new year
insignificant, when taken together    turnover, and the like delay          coming, it is a good time for
with present misconduct, they can     investigations. According to          employers to review and update
turn a mole hill into a mountain.     McDonald, any such delay may give their internal policies and to train or
Employers therefore should train      an employee that much longer to file retrain their supervisors to comply
their supervisors to recognize subtle an administrative complaint with      with internal EEO policies and
signs of discrimination, harassment, the DFEH.                              procedures.
or retaliation and to take immediate

 Reprinted by permission of The Daily Recorder.

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