The type of discrimination most people know about is discrimination based on sex, race, national origin, disability, sexual orientation, age, religion, marital status and pregnancy. To pursue a claim protesting this kind of discrimination, a person must file a claim with an administrative agency before he or she can file a lawsuit. In California, a person can file a claim with either the California Department of Fair Employment and Housing (DFEH) within one year of the discriminatory act. Another way to pursue a claim protesting this type of discrimination is to file a claim with the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act. The EEOC is a federal agency that enforces a number of federal anti-discrimination laws. Most of these laws apply to employers who have 15 employees or more. It is almost always more favorable to the employee to file with the DFEH.
But what if the harassment regularly took place over the last couple of years?
Are the instances of harassment that took place over a year ago barred from being brought in court?
Let the attorneys at Kingsley & Kingsley help sort the answers to these questions for you.
In 2001, the Supreme Court of California ruled on the scope of the “continuing violation doctrine” The doctrine “allows liability for unlawful employer conduct occurring outside the statute of limitation if it is sufficiently connected to unlawful conduct within the limitations period.” To determine this connection, the Supreme Court set up a three part test: if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of permanence so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile
If this test is met, the statute of limitations begins to run either when the course of sexual harassment has ended (such as when the employer fires the harasser) or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.
What does this mean? This question boils down to whether sufficient evidence supports a determination that the `alleged discriminatory acts are related closely enough to constitute a continuing violation.’” Basically, this element means that the incidents of sexual harassment must be sufficiently related to one another to constitute a “continuing violation.”
When there are a number of similar events involved, there may be a “continuing violation.” This is common when there is discriminatory harassment. To be considered part of a continuing violation, the events must be similar to each other, not final (such as a termination or failure to promote), and relatively close in time to each other. To pursue a claim of discrimination under a continuing violation theory a person must file within one year of the most recent event. Even if some of the events are too late to be part of the charge, they will still be relevant as background information and will help in pursuing your case, so don’t leave anything out.
Proving a continuing violation can be challenging, but with the right legal team, it can be done. There are a variety of ways that the qualified California lawyers at Kingsley & Kingsley can assist you. Take the first step to protecting yourself and stopping this hurtful and illegal behavior. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or click here to contact us regarding your case.