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

First, social norms are so well ingrained that we, as a society, often do not question what should be questioned. The line between appropriate behavior and inappropriate but- we-have-to-put-up-with-it behavior is simply blurred. I am grateful beyond belief to those brave souls, those who question the way things are, for shinning a floodlight on these deep dark not-so-secret societal norms.

Second, my own experiences are like an onion. The outer skin protects a lot of interior sections of which I am not always so cognizant. When peeled back, the memories are hazy but powerful. My outer skin is: no, no, lucky me, I am fortunate and have not been subject to sexual harassment. But it isn’t true. I feel this way due to years of denial and a well-honed ability to minimize. It is my denial mechanism that has made me a successful lawyer and advocate. But this ability to minimize, ignore and excuse doesn’t help change society, and change is what we need.

My story is simply the story of my generation of women of my socioeconomic class, race and privilege, growing up in the 60s, wanting to have a career and change the world without a lot of role models. I was white, middle-class and privileged enough. Yes, I experienced sexual harassment, both verbal and physical, especially as a young woman. Young women, women of color, gender non-conforming, gay, lesbian, transgender people, poor people, and all powerless people, are vulnerable to this display of power and the harm that comes with it….. in the workplace, on the streets, where they seek medical care or government services, in their own homes…anywhere and everywhere.

And I also experienced limited expectations with well-defined and rigid goals for what I would and could grow up to be, which were intended to shape (and narrow) my dreams, for myself and for a better society. The confines of this spectrum of expectations (or lack thereof) also made it so that I, and other young women, did not feel empowered to even articulate, much less question, discrimination and harassment when we saw it.

And, in the legal realm, in order to move this movement forward, we must change the standard for bringing sexual harassment claims, other harassment claims, and discrimination claims, in order to change how society operates and stop simply accepting the unacceptable. More on this later.

So, happy new year, and, thanks to #metoo.

Jody LeWitter

Title VII does not specifically define who is a “supervisor,” which has created some disagreement among the lower courts. Some courts determined that an employee is not a supervisor unless he or she has the power to “hire, fire, demote, promote, transfer, or discipline the victim,” while other courts follow the broader interpretation of supervisor which includes individuals who have “the ability to exercise significant discretion over [another employee’s] daily work.” While the difference may seem subtle, it is common in many workplaces for an employee to have a supervisor who tells them what to do on a daily basis but that person does not have the authority to hire, fire, or promote them.

This difference is particularly important for workers like Ms. Maetta Vance. Ms. Vance, an African American woman, worked as a catering assistant at Ball State University. She complained on several occasions that catering specialist, Saundra Davis, racially harassed her over a period of time. She also alleged that Ms. Davis was her supervisor, and therefore, the University was liable for the harassment.

Last week, in Vance v. Ball State University, the Supreme Court rejected Ms. Vance’s argument and held that an employer is only vicariously or strictly liable for supervisor harassment when “the employer has empowered that employee to take tangible employment actions against the victim, i.e. to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'”

This is a significant blow to employee rights under Title VII as it restricts employer liability in harassment cases. Based on this decision, under Title VII, if the person harassing you does not have the power to take a tangible employment action against you, such as hiring, firing, demoting, transferring or disciplining, the employer is not strictly liable.

Fortunately for California employees, not only do employers have a harder time escaping liability for supervisor harassment, but California law also has a more expansive definition of “supervisor” written into the law. Under the California Fair Employment and Housing Act, Govt. Code § 12926(s), supervisor is defined as:

“any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively recommend that action…”

This more inclusive definition would have served Ms. Vance well had she been employed in California. In the coming months and years we will likely see whether employers seize on this opportunity to limit their liability in harassment cases. However, in California the protections under the Fair Employment and Housing Act are unchanged and will continue to protect workers from harassment by their supervisors, whether or not they have the power to take “tangible employment actions.” You can read the full opinion here.

July 9, 2013 Siegel LeWitter Malkani