Articles Posted in Harassment

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.

There are so many thoughts, legal theories and emotions swirling around and within me, as a 35-year lawyer (here, I mean practicing law for 35 years, not 35 years of age!) watching the #metoo movement unfold.

First, social norms are so well ingrained that we, as a society, often do not question what should be questioned.  The line between appropriate behavior and inappropriate but- we-have-to-put-up-with-it behavior is simply blurred.  I am grateful beyond belief to those brave souls, those who question the way things are, for shinning a floodlight on these deep dark not-so-secret societal norms.

Second, my own experiences are like an onion. The outer skin protects a lot of interior sections of which I am not always so cognizant. When peeled back, the memories are hazy but powerful. My outer skin is: no, no, lucky me, I am fortunate and have not been subject to sexual harassment.  But it isn’t true. I feel this way due to years of denial and a well-honed ability to minimize.  It is my denial mechanism that has made me a successful lawyer and advocate.  But this ability to minimize, ignore and excuse doesn’t help change society, and change is what we need.

Under both California law and Title VII of the Civil Rights Act of 1964, your employer may be liable if you are harassed by either a co-worker or a supervisor. However, it is more difficult to hold an employer liable for harassment if the harasser is a co-worker, and easier if the harasser is a “supervisor.” Enter the United States Supreme Court in Vance v. Ball State University, unnecessarily tightening up who is a supervisor to allow employers to escape responsibility for harassment.

Title VII does not specifically define who is a “supervisor,” which has created some disagreement among the lower courts. Some courts determined that an employee is not a supervisor unless he or she has the power to “hire, fire, demote, promote, transfer, or discipline the victim,” while other courts follow the broader interpretation of supervisor which includes individuals who have “the ability to exercise significant discretion over [another employee’s] daily work.” While the difference may seem subtle, it is common in many workplaces for an employee to have a supervisor who tells them what to do on a daily basis but that person does not have the authority to hire, fire, or promote them.

This difference is particularly important for workers like Ms. Maetta Vance. Ms. Vance, an African American woman, worked as a catering assistant at Ball State University. She complained on several occasions that catering specialist, Saundra Davis, racially harassed her over a period of time. She also alleged that Ms. Davis was her supervisor, and therefore, the University was liable for the harassment.

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