California Supreme Court Examines Scope of the Continuing Violation Doctrine as Applied to Cases Under the FEHA

In Richards v CH2M Hill, Inc. (2001) 26 Cal.4th 798 [111 Cal.Rptr.2d 87], the Supreme Court of California refined the scope of the “continuing violation doctrine” and returned a case to the district court to determine whether an employee should be allowed to rely on unlawful conduct by her employer that occurred outside the statute of limitations period in support of her claim for discrimination and harassment under California’s Fair Employment and Housing Act (FEHA).

Facts

Richards, who has multiple sclerosis, filed an administrative complaint with the California Department of Fair Employment and Housing in January 1994. After receiving a right-to-sue letter from that agency, she sued CH2M Hill for, among other things, disability discrimination and harassment in violation of FEHA. In support of her complaint she relied on numerous incidents of discrimination and harassment by fellow workers and her superiors during the five years prior to her March 1993 resignation from the company. CH2M Hill argued Richards should not be allowed to rely on conduct that occurred outside of the limitations period contained in FEHA, which, with limited exceptions, requires a plaintiff to file an action within one year after the date an employer’s unlawful conduct occurred. The district court rejected CH2M Hill’s argument, finding plaintiff’s evidence showed a continuous course of conduct. It permitted the evidence to be presented to the jury, which awarded Richards more than $1 million in damages. CH2M Hill appealed.

Ruling by the California Supreme Court

The “continuing violation doctrine” comes into play when an employee’s claim is based upon an employer’s conduct that occurred outside of the statute of limitations period. Prior to this case, California’s lower courts had taken inconsistent approaches in applying the doctrine. For example, some courts allowed employees to rely on any conduct outside the limitations period as long as the employer’s acts were sufficiently frequent and related to establish a “course of conduct,” while others allowed employees to rely on such conduct only if the unlawful acts were of such a nature that the employee did not know that his or her rights were being violated, or whether the employer might still not comply with the law.

In Richards’ case, the California Supreme Court resolved the inconsistency for California by holding that an employee may rely on conduct occurring outside the limitations period only if: (1) the actions are sufficiently similar in kind; (2) the actions occur with sufficient frequency; and (3) the actions have not acquired a degree of “permanence” so that employees are on notice that further, informal conciliation efforts with the employer to gain accommodation or end harassment would be futile. Because a primary focus of the FEHA was to encourage such informal efforts between an employee and employer to reconcile accommodations issues, the Court said, it would be contrary to the statute’s purpose to require an employee to resort to litigation if it appeared such efforts were making progress. Thus, a key inquiry in whether the statute of limitations on a continuing violation has run is whether the evidence shows that the employer has made clear, in word and deed, that it will not further accommodate an employee and that further efforts to reach an informal agreement are useless.

The Court noted that, while the district court hearing Richards’ case appeared to have considered the similarity and frequency of CH2M Hill’s conduct, it had not considered whether, and when, Richards knew or should have known that further efforts on her part were futile. Therefore, the Court reversed the verdict and remanded the case to the district court for it to again review the evidence and to take the "permanence" factor into consideration in deciding the evidence on which Richards would be permitted to rely in support of her claim.

If you have any questions regarding this Legal Alert, please contact Emily Vasquez, or any attorney in the Labor & Employment Department at (916) 321-4500.