Continuing Violation Doctrine Federal Case Law

California courts have applied the continuing violation doctrine to Government Code section 12960, drawing the doctrine from federal case law. (See Accardi, supra, 17 Cal. App. 4th at p. 349; Watson v. Department of Rehabilitation (1989) 212 Cal. App. 3d 1271, 261 Cal. Rptr. 204 (Watson); Valdez v. City of Los Angeles (1991) 231 Cal. App. 3d 1043, 282 Cal. Rptr. 726 (Valdez); City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal. App. 3d 976, 982-983, 236 Cal. Rptr. 716 (City and County of San Francisco).) For instance, Watson and Valdez apply the doctrine, relying on federal law and a state appellate decision, City and County of San Francisco, which, in turn, relies solely on federal law. The fourth California appellate decision applying the doctrine -- Accardi, supra, 17 Cal. App. 4th at p. 349 -- relies on a federal case and Watson and Valdez, which, as noted, are ultimately premised on federal law. However, federal case law concerning the continuing violation doctrine has been described as "'inconsistent and confusing'" ( Dumas v. Town of Mount Vernon, Ala. (5th Cir. 1980) 612 F.2d 974, 977), "vague" (Moskowitz v. Trustees of Purdue University (7th Cir. 1993) 5 F.3d 279, 281), and "complicated and confusing, in part because there are a number of different theories . . . and in part because some of the concepts involved, pose very difficult line-drawing problems" (B. Schlei and P. Grossman, Employment Discrimination Law 884 (1976)). Dumas v. Town of Mount Vernon, Ala., supra, was overruled on other grounds in Larkin v. Pullman-Standard Div., Pullman, Inc. (11th Cir. 1988) 854 F.2d 1549, 1569, which itself was vacated by Pullman-Standard, Inc. v. Swint (1989) 493 U.S. 929 [107 L. Ed. 2d 307, 110 S. Ct. 316].) In fact, federal case law suggests that there are at least three distinct theories on which the continuing violation doctrine has been based: (1) where "the employer's decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the 'violation' occurred" ( Stewart v. CPC Intern., Inc. (7th Cir. 1982) 679 F.2d 117, 120); (2) where "the employer has an express, openly espoused policy that is alleged to be discriminatory," which continues into the limitations period ( Selan v. Kiley (7th Cir. 1992) 969 F.2d 560, 565 (Selan)); (3) where the employer has not engaged in an express policy or practice, but has engaged in a series of discriminatory acts emanating from the same discriminatory animus (Sabree v. United Broth. of Carpenters and Joiners Local No. 33 (1st Cir. 1990) 921 F.2d 396, 400, fn. 7 (Sabree)); Stewart v. CPC Intern., Inc., supra, 679 F.2d at p. 121). Under the first theory, the employer's decision-making process takes place over time, making it difficult to pinpoint the date of the violation. For the most part, such a circumstance is not at issue here. the vast majority of defendant's decisions concerning whether or how to accommodate plaintiff were completed well before the commencement of the limitations period. In Williams v. Owens-Illinois, Inc (9th Cir. 1982) for instance, the Ninth Circuit applied the continuing violation doctrine to a discriminatory promotion policy, which continued into the limitations period. the circuit court ruled: "A minority employee who is not promoted in 1973 . . . and is subject to a continuing policy against promotion of minorities, may then file a timely charge in 1976, because the policy against promoting him or her continued to violate the employee's rights up to the time the charge was filed." (Ibid.) However, "courts have differed over whether the existence of the policy itself constitutes a continuing violation, making a suit timely if the policy remains in effect during the actionable period, or whether there must be some actual application of it to the plaintiff within the period." (Berry v. Board of Sup'rs of L.S.U. (5th Cir. 1983) 715 F.2d 971, 979.)