AB 9 – Increases FEHA Statute Of Limitations From One To Three Years

Category: Private Education
Date: Nov 11, 2019 10:49 AM

The California Fair Employment and Housing Act (FEHA) prohibits discrimination, harassment, and retaliation in employment based on protected classifications such as race, national origin, sex, sexual orientation, religion, age over 40, disability, and medical condition, among other protected categories.  Currently, a covered individual (applicant, employee, or former employee) who alleges a violation under the FEHA has one year from the date of such unlawful practice to file a verified complaint with the Department of Fair Employment and Housing (DFEH) or the claim would generally be time-barred.

AB 9 will now increase the statute of limitations for bringing such an administrative charge so a covered individual will now have up to three years from the date of such unlawful practice to file a verified complaint with the DFEH.  This new statute of limitations will go into effect on January 1, 2020.  While AB 9 does clarify that its application will not revive any lapsed claims under the older one-year statute of limitations, this also seems to imply that any potential claims that did not lapse by December 31, 2019, would now get the benefit of the new three-year statute of limitations from the date of such unlawful practice.

This bill will require schools to be prepared to defend against FEHA claims involving actions that took place up to three years ago and may involve former employees who an employer has not interacted with for some time.  AB 9 will also cause a greater disparity between the ability to file discrimination, harassment, and retaliation claims under California’s FEHA and its federal law counterparts under Title VII, where such complaints must be filed within 300 days of the alleged unlawful practice with the federal Equal Employment Opportunity Commission (EEOC).  While the EEOC and DFEH generally cross-file with the other agency any timely discrimination, harassment, and retaliation complaints that apply under both state and federal law, the DFEH will now only be able to process any such complaints under state law that are filed over 300 days and up to three years from the date of the alleged unlawful practice. 

In response to AB 9, employers should prepare good written records in a contemporaneous manner of any claims of discrimination, harassment, and retaliation, and to properly maintain such records so they can be referenced and relied upon to defend against any FEHA claims.

(AB 9 amends Sections 12960 and 12965 of the Government Code.)

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