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.