The Fair Employment and Housing Act (“FEHA”) has always contained a two layered statute of limitations for employees to bring lawsuits against their employers for discrimination, harassment, and retaliation. Formerly, employees had one year to file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) from the date of the alleged discrimination, harassment, or retaliation. If an employee did not comply with this administrative requirement, then the employee’s complaint would be subject to dismissal for failure to exhaust administrative remedies. Even if an employee were to file a timely administrative complaint, they were subject to a one year statute of limitations for filing a civil action from the time they received a right to sue letter from the DFEH. The Stop Harassment and Reporting Extension Act (“SHARE Act”) has greatly expanded employee rights. (AB 9, 2019).
Under the SHARE Act, effective January 1, 2020, an employee will have three years to file a complaint with the DFEH. This is in stark contrast to federal laws like Title VII or the ADA where an employee only has 300 days to file an administrative charge with the Equal Employment Opportunity Commission. Once an administrative complaint is filed with the DFEH, the DFEH has 150 days to investigate the complaint by which time the agency must either file a lawsuit against the employer or issue a right to sue letter to the employee. The employee then has an additional year to bring a civil action.
Thus, from the time an employer commits an alleged discriminatory action until the time expires for an employee to bring a civil lawsuit at its maximum is now four years and 150 days in most circumstances. It can be even longer in certain limited circumstances such as if an employee was unaware of a discriminatory act but becomes aware of the discriminatory act within 90 days after the three year period expires. In such cases, the employee can file a timely administrative complaint during that extra 90 days. Similarly, employees can obtain an extra year to amend their administrative complaint if they have sued the wrong corporate entity and want to substitute the correct corporate entity. And in the rare instances when a minor has been harassed or discriminated against, the employee can get an extra year from the date they reach the age of majority to file an administrative complaint.
These dates all run from the filing of a complaint with the DFEH. Sometimes an employee only prepares an intake form with the DFEH and argues that this should be sufficient to exhaust administrative remedies. Courts have disagreed and only look at the filing of the verified complaint for statute of limitations purposes. Don’t worry. The legislature has addressed this issue with this new legislation and now permits verified complaints to relate back to the filing of an intake form. Thus, if an employee files an intake form within the three years following the discriminatory act, the fact that the employee’s verified complaint is not filed until after the three years expires will not bar a civil action.
One of the main concerns facing employers with this new longer filing period, is whether employees can now revive claims that would otherwise be time barred? The Act specifically provides that it should not be interpreted to revive lapsed claims. Thus, claims that are already time barred cannot be revived by the new longer statute of limitations.
As for what should employers do in response to this new elongated process, employers need to either develop or emphasize existing internal complaint procedures to document any potential issues. Additionally employers should ensure that their record keeping processes are in place and utilized, and that they account for the longer statute of limitations. As time goes by, it is only natural for people’s memories to fade, so it is critical that if employers are made aware of potential issues, such issues are documented and dealt with before they can fester into potential lawsuits years down the road.
This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.