Statutes of limitations, are designed to ensure that an alleged victim does not delay in making a claim for damages or other relief.  A long delay can deprive the defendant of the evidence necessary to fight the claim. By failing to act with reasonable diligence to pursue a claim, relevant document may be lost and witnesses’ memories may fade.

With respect to claims under the California Fair Employment and Housing Act (“FEHA”), employees must file a complaint with the Department of Fair Employment and Housing (“DFEH”) and obtain a right-to-sue letter before filing in court.  Until January 1, 2020, employees had one year to initiate this process to exhaust administrative remedies.  Following the passage of California Assembly Bill 9, which amends Government Code sections 12960 and 12965, employees now have three years to file these claims with the DFEH.  But, AB 9 is not retroactive.  Old claims are not revived by the new law.

What Does AB 9 Do for Employees?

AB 9 represents a significant expansion of employee rights in California. The one-year statute of limitations will continue to apply to claims made under the Unruh Civil Rights Act, Ralph Civil Rights Act of 1976 and under Civil Code provisions addressing “Blind and other Physically Disabled Persons.”

AB 9 also includes four expansions of the three-year filing deadline for cases brought under the FEHA.

• First, the statute of limitations is tolled (or temporarily stopped) for up to 90 days following a person’s discovery of the facts of the alleged discrimination.
• Second, the statute is tolled for up to one year in situations where one first discovers the identity of the employer after three years have passed.  Thus, for example, the true employer might be disguising its identity within a maze of companies.  AB 9 provides a limited tolling under such circumstances to permit an employee to substitute the actual employer into the claim.
• Third, the statute is tolled for up to one year in cases brought under Civil Code § 51.7 (Ralph Civil Rights Act of 1976) from the date the employee learns the identify of the person liable for the discrimination.
• Fourth, the statute is tolled for up to one year after the person aggrieved by the discrimination reaches their majority (18 years).

How Does Exhaustion of Administrative Remedies Under the FEHA Work?

Filing a discrimination complaint with the DFEH requires the employee to complete an online form that identify themselves, their employer and the violations they allege occurred.  A failure to include all of the claims available or to sufficiently describe the claims being asserted can deprive the employee of the right to pursue the claims at the DFEH or in court.

After completing the complaint form, the employee is asked whether they wish to have the DFEH investigate the claims or to issue an immediate right-to-sue letter.  Generally, an employee should not ask for a right to sue letter unless they are represented by an attorney. Once the employee obtains a right-to-sue letter, the DFEH will stop any investigation.  The employee has one year to file a lawsuit based on the allegations set out in their complaint.

AB 9 is Not Meant to Encourage Delays

Although an employee in California now has three years to file a complaint with the DFEH, an employee being subjected to unlawful discrimination, harassment or retaliation at work should not delay too long to challenge those unlawful conditions.

Unreasonable delays can be used by the employer to argue that conditions must not have been very bad if the employee continued to work there.  In addition, evidence of the discrimination can be lost to time as witnesses move on to new places and new jobs.

Finally, delay often means that the employee will continue to labor under conditions that are intolerable.  While filing a complaint with the DFEH is not a fix-all solution to discrimination at work, initiating the complaint process can lead to positive changes there.  It is also a way for an employee to take back some of the power they have lost in the hostile environment.

Reprinted with permission.

About the Author:  Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. Patrick also represents employers requiring guidance in California employment law. Patrick is a graduate of The University of Michigan Law School and rated AV-Preeminent by Martindale-Hubbell, its highest ranking for legal knowledge, skill, experience and ethics.