Continuing Violation Exception Saves Sexual Harassment Claims

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education, Public Employers, Public Safety
DATE: Sep 02, 2020

Daisy Arias worked for Blue Fountain Pools and Spas (Blue Fountain).  While Arias was working for Blue Fountain, she experienced sustained, egregious sexual harassment, primarily from a salesperson named Sean Lagrave who worked in the same office.  Arias repeatedly complained about Lagrave’s conduct over the course of her decade-long employment. In April 2017, Lagrave yelled at her, used gender slurs, and physically assaulted her.  Arias told the owner of Blue Fountain at the time, Farhad Farhadian, that she wasn’t comfortable returning to work with Lagrave.  Farhadian refused to remove Lagrave and subsequently terminated Arias’ health insurance.  Before Farhadian told Arias to pick up her final paycheck, he had repeatedly ignored her complaints and participated himself in creating a sexualized office environment.

Arias then filed a complaint with the California Department of Fair Employment and Housing (DFEH) and sued Blue Fountain, Farhadian, and Lagrave alleging, among other claims, sexual harassment and failure to prevent sexual harassment.  Blue Fountain, Farhadian, and Lagrave filed a motion to have the claims dismissed.  The trial court denied their motion. Blue Fountain, Farhadian, and Lagrave brought a petition for writ of mandate to renew their argument that Arias’ claims were barred by the statute of limitations.

Under the Fair Employment and Housing Act (FEHA) at the time this case began, an employee was required to first file a complaint with the DFEH within one year of the alleged misconduct.  However, courts recognize an exception for continuing violations.  To establish a continuing violation, an employee must show that the employer’s actions are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence.  In their writ petition, Blue Fountain, Farhadian, and Lagrave argued that Arias could not meet the third element– that Blue Fountain’s actions had acquired a degree of permanence – because Arias admitted she felt that further complaints about the hostile work environment were futile after the company’s prior management failed to address her numerous complaints.  The Court of Appeal disagreed. 

First, the Court of Appeal noted that Arias presented evidence of several incidents of sexual harassment that occurred in the one year preceding her termination that was within the complaint-filing period.  Accordingly, the court concluded it would have been improper for the trial court to dismiss her claims, even if it determined the incidents outside the limitations period could not be the basis for liability.

Second, the court found that while Arias had been subject to sexual harassment since she started working at Blue Fountain in 2006, Farhadian purchased the company and took over operations in January 2015.  Thus, even if the conduct of prior management made Arias’ further complaining futile, the arrival of new management created a new opportunity to seek help and Arias could establish a continuing violation with respect to all of the complained-of conduct that occurred during Farhadian’s ownership.

Finally, the court identified a factual dispute over whether and when Blue Fountain made clear no action would be taken and whether a reasonable employee would have decided complaining was futile.  Because Arias continued making complaints and tried complaining to different people, the Court of Appeal reasoned that this question needed to be resolved by a jury, not the trial court.

Accordingly, the court denied Blue Fountain, Farhadian, and Lagrave’s writ petition and concluded that Arias’ claims could proceed to trial.

Blue Fountain Pools and Spas Inc. v. Superior Court of San Bernardino County, 2020 WL 4581664 (Cal. Ct. App., Aug. 10, 2020).


Effective January 1, 2020, an employee now has three years, instead of the one year, from the date of the allegedly discriminatory conduct to file an administrative complaint with the Department of Fair Employment and Housing.   (Gov. Code section 12960(e).)