Administrative Complaint Before Civil Action for Harassment or Discrimination

The Fair Employment and Housing Act (FEHA) prohibits both harassment and discrimination in employment on account of, inter alia, physical disability. (Reno v. Baird (1998) 18 Cal. 4th 640, 644, 957 P.2d 1333; Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 62.) Government Code section 12940, subdivision (h)(1), provides in relevant part that it is an unlawful employment practice "for an employer . . . because of . . . physical disability, mental disability, [or] medical condition . . . to harass an employee or applicant. Harassment of an employee . . . by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . ." Section 12940, subdivision (k) makes it an unlawful employment practice "for an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision . . . shall be construed to require an accommodation that is demonstrated by the employer . . . to produce undue hardship to its operation." However, before an employee may maintain a civil action for harassment or discrimination under the FEHA, the employee must exhaust the administrative remedy provided by the FEHA by filing an administrative complaint with the Department and obtaining the Department's notice of the right to sue. "The timely filing of an administrative complaint, and exhaustion of that remedy, is a prerequisite to maintenance of a civil action for damages under the FEHA." (Balloon v. Superior Court (1995) 39 Cal. App. 4th 1116, 1120; accord, Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724; see Gov. Code, 12960, 12965, subd. (b).) Such an administrative complaint must be filed within one year of the "date upon which the alleged [unlawful employment practice(s)] occurred." (Accardi v. Superior Court (1993) 17 Cal. App. 4th 341, 349; Gov. Code, 12960.) Since plaintiff filed her administrative complaint on January 25, 1994, the one-year limitations period allowed her to claim discrimination or harassment for any unlawful practices that occurred on or after January 25, 1993. Under Government Code section 12960, a complaint may not be filed "after the expiration of one year from the date upon which the unlawful practice occurred." Government Code section 6803 defines year as "a period of 365 days." Both Government Code section 6800 and Code of Civil Procedure section 10 provide that "the time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." Thus, since a complaint filed on January 25, 1994, would be exactly 365 days (one year) after January 25, 1993, excluding the first day (January 25, 1993) as required by Government Code section 6800, the complaint could timely allege an unlawful practice occurring on January 25, 1993. Such a complaint would have been filed within one year, and not "after the expiration of one year from" January 25, 1993. ( Gov. Code, 12960.)