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

In this case, Abercrombie refused to hire a young Muslim woman named Samantha Elauf to work in one of its retail clothing stores because Ms. Elauf wore a headscarf. Abercrombie suspected that Ms. Elauf wore the headscarf in observance of her Muslim faith and simply did not want to accommodate the headscarf, claiming that it would violate the company’s “look policy” (which forbade employees from wearing “caps”). When the EEOC sued Abercrombie on behalf of Ms. Elauf for failing to make a reasonable accommodation for her religion, the company defended its actions by arguing that it did not “actually know” that the headscarf was a religious practice – it merely suspected that it was a religious practice. In other words, Abercrombie made the absurd argument that even though it actually believed the headscarf was a religious practice and the headscarf was indeed a religious practice, the company should nevertheless be allowed to discriminate against Ms. Elauf because Ms. Elauf did not specifically tell the company that the headscarf was a religious practice.

Luckily, the U.S. Supreme Court did not buy Abercrombie’s argument. The Court’s decision makes it clear that employers may not make employment decisions that are “motivated” by someone’s actual religious beliefs or practices, nor can it refuse to make reasonable accommodations for such religious practices, by simply claiming that the employee (or job applicant) never explicitly confirmed the company’s suspicions regarding their religious beliefs or practices.

Nevertheless, if you are an employee who needs a religious accommodation, you may be better off making your need clear to the employer so that the employer cannot later claim that it had no idea you needed an accommodation. If you need advice or information about requesting a religious accommodation, you may need to consult with an employment attorney.

June 11, 2015 Heather Conger

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. ___ (Jan. 11, 2012), the U.S. Supreme Court held that a judicial doctrine that lower courts have developed and entitled the “ministerial exception” prohibited an employee from bringing a claim for disability discrimination against the church. In particular, the Court held where the employer is a religious organization and the employee is a minister, there can be no claim for disability discrimination against the employer. The Court basically held that a religious organization is exempt from anti-discrimination law when it comes to its actions towards employees whom can be characterized as ministers. The Court relied upon the Free Exercise Clause, and found that this protected the actions of the church towards its ministers, regardless of the actions discriminatory intent.

Score one for religious organizations. However, it should be noted, that although this was the first time the United States Supreme Court spoke up on this issue, this holding has been already adopted by lower courts.

Jody LeWitter April 18, 2012