Continuing Violation Doctrine California
the continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period.
In Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the Supreme Court determined that:
"An employer's persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer's unlawful actions are:
(1) sufficiently similar in kind-recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms;
(2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence." (Richards, supra, 26 Cal.4th at p. 823.)
The Richards court further explained that "permanence . . . should properly be understood to mean the following: that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile." (Richards, supra, 26 Cal.4th at p. 823.)
In Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, the plaintiff filed two DFEH charges. However, in contrast to the situation here, she did not allow her right to commence civil litigation to expire.
She received her first right-to-sue letter in August 1978, and filed her first civil complaint in January 1979. After amending several times, the parties stipulated that the matter would be taken off calendar to allow the plaintiff to file a second charge with DFEH and then file a third amended complaint in lieu of filing a second lawsuit for retaliation stemming from the first DFEH charge.
Thus, while the continuing violation doctrine was found applicable in Watson, the statute of limitations under section 12965, subdivision (b) was not at issue.In Richards, the Supreme Court interpreted the statute of limitations found in section 12960, subdivision (d). the court specifically found the term "'unlawful practice,' in the context of the statute of limitations," to be ambiguous. (Richards, supra, 26 Cal.4th at p. 819.)
In interpreting this statutory ambiguity, the court cited the rule of liberal construction set forth in section 12993, subdivision (a). (Ibid.) In light of FEHA's goal of safeguarding the employee's right to hold employment without experiencing discrimination, the Richards court determined that "section 12960 should not be interpreted to impose serious practical difficulties on an employee's ability to vindicate this right through litigation if it can be reasonably interpreted otherwise." (Richards, supra, at p. 821.)