The Sexual Abuse and Accountability Act has Opened the Window for New Lawsuits

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: May 23, 2023

On January 1, 2023, Assembly Bill 2777 (“AB 2777), also known as the Sexual Abuse and Cover-Up Accountability Act (the “Act”), officially became the law. The Act provides sexual abuse victims an opportunity to seek justice in California. It is important to note that while the Act revives claims against various entities, public entities are exempt from the Act.

Originally, the statute of limitations for sexual abuse claims that occurred on or after the victim’s 18th birthday was 10 years or within three years from the date the victim discovers or reasonably should have discovered that an injury or illness resulted from those acts.

Today, the Act provides a three-year window for survivors of sexual assault to file a claim and recover damages as a result of crimes that occurred on or after January 1, 2009. In other words, from January 1, 2023 through December 31, 2026, sexual assault and abuse claims, which would otherwise be barred by the statute of limitations, will be revived and officially be eligible to be brought in civil court, provided that those claims were barred solely because of the expiration of the statute of limitations. As a result, California plaintiffs will now have a window of opportunity to secure justice on their own terms for crimes such as rape, sexual assault, and sexual abuse, as well as any related claims arising out of the sexual assault, such as sexual harassment and wrongful termination, that occurred on or after January 1, 2009.

Separately, the new legislation has also created a one-year revival window which allows victims to bring sexual assault claims (including claims arising out of sexual assault) involving cover-ups that would otherwise be barred, before January 1, 2023, because the statute of limitations expired. Survivors may bring these claims between January 1, 2023 and December 31, 2023. A cover-up is defined as: “A concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.”

In order to qualify for the cover-up claim under the one-year lookback window provision, the plaintiff needs to allege the following: (1) He, she, or they were sexually assaulted; (2) One or more entities are legally responsible for damages stemming from that sexual assault (“Legally responsible” means that the entity or entities are liable under any theory of liability established by statute or common law, including, but not limited to, negligence, intentional torts, and vicarious liability); and (3) Said entities, which may include employees, officers, directors, representatives, or agents, engaged in a cover-up or attempted cover-up of a previous instance or allegation of sexual assault by an alleged perpetrator of such abuse.

It is important to note the Act does not revive any of the following claims:

(1) A claim that has been litigated to finality in a court of competent jurisdiction before January 1, 2020;

(2) A claim that has been compromised by a written settlement agreement between the parties entered into before January 1, 2020; or

(3) A claim brought against a public entity.

What Should Employers do in light of AB 2777?

It is now more important than ever for employers to review their anti-sexual harassment, discrimination, and retaliation policies and ensure managers and supervisors are adequately trained and informed on the legal ramifications of sexual assault and to avoid any practices that would incentivize silence surrounding sexual assault in the workplace. Employers should also monitor employee files for any complaints of sexual assault or harassment and promptly investigate any such complaints, and ensure records are created and filed properly.

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