The Continuing Violation Doctrine Extends The Statute Of Limitations In Employment Cases

By: Kyle D. Kring.

It is well settled that an employee claiming violations of the Fair Employment and Housing Act (“FEHA”) cannot bring an action against his or her employer if more than one year has passed since the alleged unlawful employment practice. [1]

The Continuing Violation Doctrine may extend that one-year time limitation if the employee can show that the employer performed acts outside the limitations period that are sufficiently linked to unlawful conduct within the limitations period, such that the employer ought to be held liable for all of the conduct. [2] For example, if an employee is subjected to sexually harassing comments by a colleague for two years prior to being physically groped by that same colleague, the employer may be held liable for the comments and the unwelcome touching, even though the comments were made outside the one-year statute of limitations. “Essentially, a complaint is [still] timely if discriminatory practices occurring [before the one-year] limitations period continued into that period.” [3]

The leading continuing violation doctrine case is Richards v. CH2M Hill, Inc., where the California Supreme Court held that the doctrine may toll the statute of limitations, if the employer engaged in a series of continuing and related FEHA violations, and at least one of those violations occurred within the one-year period. [4] In Richards, a disabled employee sought accommodation for her disability over a five-year period, and was given mixed signals on her accommodation requests throughout the period. [5] Her employer argued that the limitations period was triggered the first time the employer refused to accommodate her disability, and because she did not file her claim at that time, the claim was barred by the statute of limitations. The Court rejected that argument and explained that “when a continuing pattern of wrongful conduct occurs partly in the statutory period and partly outside it, the limitations period begins to accrue once an employee is on notice of the violation of [her] rights.” [6]

The law is clear about what must be proven to prevail under the doctrine: when an employer engages in a continuing course of unlawful conduct under the FEHA (e.g., harassment, discrimination, retaliation, et al) that does not establish a constructive discharge, the statute of limitations will not run until either (a) the conduct is brought to an end (e.g., the employer ceases the unlawful conduct or the employee resigns); or (b) the employee realizes that further effort on his or her part to end the unlawful conduct will be futile [7] (e.g., the employer makes clear by words or conduct that any further attempts by the employee to obtain a reasonable accommodation will be fruitless).

The doctrine also requires a showing of a continuing violation: (1) the conduct occurring within the limitations period is similar in kind to the conduct outside the period; (2) the conduct was reasonably frequent; and (3) the conduct had not yet become permanent (i.e., permanency is achieved when the harassing conduct stops; the employee resigns; or the employee is on notice that further efforts to end the harassment will be futile). [8] To illustrate, as in the first example, the unwelcome touching committed by the employee’s colleague is similar in kind (harassment) to the sexual comments made for two years prior; the conduct was reasonably frequent because it occurred on a continuing basis; and there was no permanency because the harassment did not stop.

The Richards court explained that the one-year statute of limitations imposes unappealing choices and undesirable consequences for an employee seeking to bring a claim of discrimination or harassment. The court reasoned that under the existing statute of limitations, a plaintiff/employee must immediately resign and bring legal action as soon as he or she recognizes a workplace violation; must persist in an informal accommodation process and risk forfeiture of the right to bring an action altogether; or remain employed with the employer while simultaneously bringing formal legal action against it, none of which is a viable option for many employees. The Court further states, “As with harassment, an instance of an employer’s failure to accommodate that in isolation may seem trivial can assume greater significance and constitute a greater injury when viewed as one of a series of such failures.” [9]

In November, 2015, the California Court of Appeals revisited the continuing violation doctrine in Jumaane v. City of Los Angeles. In Jumaane, there was substantial evidence that the plaintiff suffered discrimination and harassment outside the limitations period that was similar and/or related to what he suffered during the limitations period and that the conduct was reasonably frequent. Unfortunately for the plaintiff, there was no evidence in the record from which the court could infer that the discrimination and harassment had not become permanent. “To the contrary,” the court stated, “plaintiff…knew that further efforts to end the harassment and retaliation would be in vain” because the harassment and retaliation culminated in a suspension in 1999. The court, therefore, held that “all of plaintiff’s claims related to conduct that occurred before June 1999 are barred by the statute of limitations.” [10]

For employers, it remains imperative to immediately address and cease any unlawful employment practice because the continuing violation doctrine may extend the time an aggrieved employee has to bring an action. On the other hand, this doctrine enables an employee who believes they have been subjected to an unlawful employment practice that occurred more than one year ago to possibly still bring a claim.

[1] Cal. Gov’t Code § 12960.

[2] Cucuzza v. City of Santa Clara (2002) 104 Cal. App. 4th 1031 at 1042.

[3] Dominguez v. Washington Mutual Bank (2008) 168 Cal. App. 4th 714 at 721.

[4] Richards v. CH2M Hill, Inc. (2001) 26 Cal. 4th 798, 811-824.

[5] Richards, Id. at 824.

[6] Acuna v. San Diego Gas & Electric Company (2013) 217 Cal. App. 4th 1402 at 1412.

[7] Richards, Id. at 823-824.

[8] Dominguez, Id. at 721, 724.

[9] Richards, Id. at 820-822.

[10] Jumaane v. City of Los Angeles (2015) WL 6940142.