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

This case is equally important to employment cases, where we often find that defense attorneys challenge perfectly fair jurors based on their race/national origin/gender/age and other identifying information that is similar to that of the plaintiff, and thereby deny the plaintiff in employment cases a jury of their peers.

The California Supreme Court sent a message that under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) a trial court must seriously scrutinize the rationale and motivation presented by any side using its jury challenges to challenge a legally protected and cognizable group. Here the court noted that 10 out of 16 challenges were used against Hispanics and 10 out of 12 Hispanics who took a seat in the jury box were challenged by the prosecutor. The Supreme Court warned that, “excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of Constitutional magnate”. The Supreme Court made clear to the lower courts that it is their duty to make sure the parties do not use their peremptory challenges in a discriminatory manner, and that the court must make a “sincere and reasoned attempt to evaluate” the explanations proffered by the party bumping the jurors.

This is good news for employees and their lawyers, who often see defense lawyers bump jurors who would permit the employee to receive a fair jury by his or her peers. Take note, the California Supreme Court is watching!

Jody LeWitter

Mr. Rickards had a claim for discrimination against his employer, UPS. The first hurdle in an employment case in the State of California is generally to file a charge of discrimination with the California Department of Fair Employment & Housing (“DFEH”)(depending on the circumstances, an employee may instead file with the Equal Employment Opportunity Commission, and ask that the claim be cross filed with the DFEH). For an employee who has a lawyer and intends to sue, there is generally no productive reason to file such a charge, except that failure to do so may be a fatal flaw in the subsequent lawsuit.

The Department of Fair Employment & Housing set up an online process by which a lawyer can file a charge of discrimination online for an employee. According to the DFEH, this process is set up for employees who have lawyers. As part of the filing, the employee (or lawyer!!) fills out an online form and moves from screen to screen including a screen that acknowledges that the signature is “…under Penalty of Perjury”. Previous case law had already established that an attorney may verify a charge of discrimination with the DFEH on behalf of the client. Blum v. Superior Court (2006) 141 Cal.App.4th 418.

So when Mr. Rickards’ attorney filed his charge online with the DFEH, what could the problem be? UPS acknowledged that the attorney could sign on behalf of the client, but claimed that – due to the nature of the online system – the attorney didn’t really “sign”. UPS was living in the past, or at least hoping that the court was living in the past. UPS tried to argue a fine technicality claiming that the lawyer needed to use ink, or maybe fountain pens, in order to create a signature.

Relying on the Uniform Electronic Transactions Act (Civil Code § 1633.1 et seq.) the California Court of Appeals rejected this position and held that no physical signature was necessary.

Although the use of the administrative process can be helpful for an employee, especially where he or she doesn’t have an attorney, or doesn’t intend to go to court, there is no reason to make an employee jump through unnecessary hoops to get his or her day in court!

Jody LeWitter August 1, 2012

Ms. White was a police officer with the City of Pasadena. White was diagnosed with multiple sclerosis, but continued to do her job. The City then fired her, claiming she was associating with a known drug dealer and lied about it. Officer White, through her union’s grievance process, arbitrated her termination and she was reinstated to her position as a police officer.

Instead of letting “good enough” alone, Officer White filed a lawsuit in state court (White I), claiming the City of Pasadena harassed and discriminated against her based upon her disability. The jury found for the City, the California Court of Appeals upheld the verdict, and the California Supreme Court refused to review the ruling.

While White I was pending on appeal, the City fired Officer White a second time. Here, there was some evidence that White had attempted suicide, which Ms. White denied. The City investigated and found that she had attempted suicide and that she had lied about it. Ms. White contested her termination through the administrative process, where the City Manager found for the City. Ms. White again took this to the courts, filing a writ of mandamus in state court (White II), which she lost. She appealed to the California Court of Appeals, and again lost.

Finally, Officer White filed a third lawsuit in state court, alleging that the City discriminated against her, harassed her, violated 42 USC §1983, as well as her first and fourteenth Amendment rights (White III).

The defendant removed the case to federal court, as the case contained federal rights. The federal district court held that officer White’s claims were barred because of issue preclusion.

The Ninth Circuit upheld this ruling in a fairly convoluted manner, holding that all of the claims brought in White III had been litigated effectively and were precluded by either White I or White II.

This case is a prime example of why employees and their lawyers should think before they litigate. I did not agree with all the reasoning of the Ninth Circuit here (for example, I don’t agree that the White II administrative record was neutral enough to count for issue preclusion, because a City Manager isn’t a neutral fact finder, and I also don’t agree that White I and White III litigated the same issues – how could they, as White III contested the second firing, which hadn’t occurred by the time of the jury trial in White I? And litigation decisions can be more difficult with public employees who face a variety of administrative procedures. However, there are lessons to be learned here: be extra careful to decide – on a case by case basis – whether and in what forum to contest a termination. If Officer White had simply accepted the first reinstatement rather than suing after she had been put back to work, she wouldn’t have had the White I record to weigh her down.

There is no black letter law for when to use administrative or grievance procedures and when not to use them. A lot may depend upon the facts of the case, the particular procedure available and memorandum of understanding. However, it goes without saying that a strategic analysis of whether or when to do so is always necessary.

Jody I. LeWitter June 18, 2012