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 Fuller v. Idaho Department of Corrections (9th Cir. 2017) 865 F.3d 154, the Ninth Circuit stressed the importance of how this imbalance impacted the employee/rape victim and how a reasonable jury could conclude that the employer’s conduct “effectively condoned the rapist” and thus, created a hostile work environment for the victim. In doing so, the Ninth Circuit overturned the lower court’s summary judgment in favor of the employer.

When the employer learned that a male employee was being investigated by the sheriff for the rape of an employee, it put the co-worker on a paid administrative leave, and did not warn any of its employees. (Yes, we understand the difficult balancing test between safety and privacy). The employer, Department of Corrections, not only paid the co-worker while on leave but gratuitously noted that it “looked forward to…[his]…prompt return to work.” (Yes, this case was before the #MeToo movement.) Ms. Fuller, who had a relationship with the co-worker, disclosed the relationship to her employer. The employer did nothing to warn or protect her, and she was subsequently raped by this same co-worker.

When Ms. Fuller, suffering from the impact of the rape, asked for a paid leave of absence, which the employer in its discretion could have granted, the employer denied her request. Ms. Fuller was distraught, not only by the rape, but by the fact that her employer was paying her rapist but refused to pay her. Supervisors continued to make supportive statements towards the rapist, telling staff to “feel free to give… [the coworker accused of rape] some encouragement.” A supervisor opined to all that he “hate[d] that [the accused rapist] cannot come to the office until the investigation is complete.”

When Ms. Fuller expressed concern that the man accused of rape might return to her workplace, the employer responded that he “still was our employee” and that they did not want “a stigma hanging over” him in case the allegations were proven to be untrue. No empathy or understanding at all was expressed towards the female victim. Even though Ms. Fuller obtained a civil injunction barring this co-worker from approaching her, all the employer did was indicate that an employee under an administrative investigation could not enter the premises. It did not warn its staff that there was a stay away order or do anything to protect Ms. Fuller at all.

The Ninth Circuit concluded that, “…a reasonable jury could find the agency’s public and internal endorsement of…[the accused rapist] made it more difficult for Fuller to do her job, to take pride in her work, and to deserve to stay in her position.”

Courts often get hostile environment claims wrong; they just do, as demonstrated by the fact that this was a 2-1 decision rather than a 3-0 decision. Our society and courts have much work to do to understand and embrace how women are impacted by sexism. This opinion helps to further this important work.

Employer be warned, now is the time to fully embrace change, protect victims of harassment, discrimination and rape. The times they are a changin’.

Jody I. LeWitter