Articles Posted in Discrimination – Age & Disability

As employers across the country reckon with the impacts of the #MeToo movement, the California legislature and Governor Newsom took decisive action to extend the statute of limitations on certain workplace claims, acknowledging that those who have been targeted by discrimination, harassment, and retaliation do not always come forward immediately.

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

I am not sure why this happens over and over again, but for some reason some trial courts keep believing that if they would vote for the employer if they were sitting as jurors, they should grant summary judgment to the employer and deny the employees their day in court. Sandell v Taylor-Listug (California Court of Appeals No. D055549, September 7, 2010) demonstrates that we are lucky to have an appellate court system to reverse this type of action.

Sandell involved a garden variety age and disability discrimination case in which the company claimed it did not discriminate, but there was plenty of evidence by which a fact finder or jury could side with the employee and find that there was discrimination. Besides the timing that Mr. Sandell was fired after returning from a leave of absence due to a stroke and right after his 60th birthday, there was evidence that the employer simply was not pleased with Mr. Sandell’s disability. The record included statements by Sandell that his boss told him, “that if I don’t make a full recovery, that the company has the right to fire me” and that this same boss chastised him with, “when I was going to get rid of the cane and when I was going to drop this dramatization.” It also noted that these types of comments were certainly evidence of discrimination, and were not “stray comments” to be disregarded by the court.

The Court of Appeals reinstated the case and stated the obvious, “The evidence is in conflict, and it is not up to the court to weigh conflicting evidence or to assess the credibility of witnesses.”

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