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California employees won the right Thursday to hold their employers liable in certain circumstances for discrimination that may have occurred years earlier. In a 4-1 ruling, the California Supreme Court held that the Fair Employment and Housing Act’s one-year statute of limitations for filing discrimination suits doesn’t apply if it can be shown that an employer engaged in a course of unlawful conduct over an extended period of time. In other words, employees don’t necessarily have to file a suit within a year of first suspecting that their rights were violated. “We believe,” Justice Kathryn Mickle Werdegar wrote for the majority, “that to interpret the FEHA statute of limitations in a way that does not short-circuit the reasonable accommodation process is consistent with both the letter and the spirit of the law.” Chief Justice Ronald George and Justices Joyce Kennard and Ming Chin concurred. Justice Janice Rogers Brown dissented and Justice Marvin Baxter recused himself from the case, after sitting through oral arguments, for undisclosed reasons. Richards v. CH2M Hill Inc., 01 C.D.O.S. 7347, was filed in 1994 by Lachi Delisa Richards, who accused her employer, a nationwide engineering firm, of disability discrimination and harassment for failing to reasonably accommodate her from 1988 until her resignation in 1993. In that time, Richards, a Yolo County, Calif., resident who has multiple sclerosis and uses a wheelchair, had asked her bosses several times for accommodations, many of which were ignored, denied or implemented long after requested. CH2M argued that Richards could only seek damages for the one year allowed by FEHA’s statute of limitations. But Sacramento County Judge Cecily Bond presiding over the case ruled that the company’s conduct constituted a continuing violation and allowed evidence of five years of alleged discrimination and harassment. The jury awarded Richards $925,000 in emotional distress damages and $476,000 in economic damages following a six-week trial in 1997. Sacramento’s Third District Court of Appeal reversed the trial court, saying most of Richards’ claims were time barred. But the supreme court said Thursday that the continuing violation doctrine used by the federal courts can toll the statute of limitations if an employer’s unlawful actions can be viewed as a “single, actionable course of conduct.” Even then, the court held, the alleged discriminatory acts must be similar, occur frequently and not have acquired a degree of permanence that makes it clear to an employee that there will be no further effort to resolve the dispute. “The statute of limitations begins to run not necessarily when the employee first believes that his or her rights may have been violated,” Werdegar wrote, “but rather either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” The Third District, she said, “incorrectly adopted the narrow view that the statute of limitations begins to run as soon as the disabled employee is on notice that his or her rights have been violated.” In her dissent, Justice Brown accused the majority of fashioning a “broad, standardless variant” that will nullify FEHA’s statute of limitations, effectively transforming it into “a statute of non-limitation. “Since the employee need not place the employer on notice of alleged discriminatory acts, the complaint could encompass decades,” she wrote. “Indeed, complainants may now assert FEHA causes of action in any circumstance involving two or more unlawful practices regardless of how much time separates them, with every incentive to delay claims and maximize recovery.” Brown also criticized the majority for offering “no principled justification or rationale” for making an exception to the statute of limitations. “Just as the Legislature must determine the appropriate limitations period, it is equally for the Legislature to create any exceptions,” she wrote. Paul Cane Jr., a partner in the San Francisco office of Los Angeles’ Paul, Hastings, Janofsky & Walker, wasn’t convinced, though, that the ruling was as disastrous as Brown indicated. Cane, who represented the California Employment Law Council as an amicus curiae for CH2M Hill, said the decision was narrow and wouldn’t likely affect discrete employer decisions such as promotion denials and discharges, which, he said, constitute the “vast run of cases” in which a continuing violation can be found. “In the disability accommodation and harassment contexts, I think [the ruling] does open the door for some claims that could be held time-barred to survive,” he said. “But I don’t think it announced a rule of applicability outside that context.” Ellen Lake, the Oakland, Calif., lawyer who represented Richards, disagreed, saying Thursday that the ruling has a “very broad scope” that will definitely affect other types of discrimination. She also said the ruling balances the rights of both employees and employers. Noting that the case has been remanded, Theodore Olsen, a partner in Denver’s Sherman & Howard who represented CH2M Hill, said he is “very confident” the company will eventually prevail.

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