The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

Sandell involved a garden variety age and disability discrimination case in which the company claimed it did not discriminate, but there was plenty of evidence by which a fact finder or jury could side with the employee and find that there was discrimination. Besides the timing that Mr. Sandell was fired after returning from a leave of absence due to a stroke and right after his 60th birthday, there was evidence that the employer simply was not pleased with Mr. Sandell’s disability. The record included statements by Sandell that his boss told him, “that if I don’t make a full recovery, that the company has the right to fire me” and that this same boss chastised him with, “when I was going to get rid of the cane and when I was going to drop this dramatization.” It also noted that these types of comments were certainly evidence of discrimination, and were not “stray comments” to be disregarded by the court.

The Court of Appeals reinstated the case and stated the obvious, “The evidence is in conflict, and it is not up to the court to weigh conflicting evidence or to assess the credibility of witnesses.”

In addition, the Court rejected the company’s rather weak attempts to rebuff the claims on other grounds. It rejected the employer’s assertion that the employee wasn’t disabled under the Fair Employment and Housing Act, finding that Mr. Stendall’s use of a cane was evidence enough that his life activity of walking was limited. It likewise rejected the employer’s attempt to bootstrap its one-sided evidence that the employee wasn’t doing his job into proof that the employee wasn’t qualified to hold the job and therefore couldn’t make out a prima facie case of discrimination. The Court noted that all an employee had to do to meet this requirement was prove “some basic level of competence”. Further, it rejected the defendant’s attempt to suggest that it couldn’t have engaged in age discrimination based on the “same actor inference” where the same supervisor hired and fired the employee. The Court of Appeals noted that five years and a stroke intervened between the hiring and firing, and strongly opined that an “inference” is simply an “inference” and not something by which a court should grant summary judgment.

Thank goodness that this ruling was made in a court of law, where it went up on appeal and was reviewed and reversed! If Mr. Stendell had been forced to sign an arbitration agreement and the arbitrator had made the same clearly erroneous ruling as the trial court judge did in this case, he would have been out of luck!

Jody LeWitter Siegel & LeWitter jlewitter@sl-employentlaw.com