AB 9: Extends statute of limitations to file FEHA employment discrimination claims from 1 to 3 years

California's Fair Employment and Housing Act 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. Under existing law, 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 administrative complaint with the Department of Fair Employment and Housing or the claim would generally be time-barred. The filing of such an administrative complaint with the DFEH is a prerequisite to filing a lawsuit in state or federal court asserting a violation of FEHA as the DFEH has initial jurisdiction of such claims.

Governor Gavin Newsom signed Assembly Bill 9 into law, which will increase the statute of limitations for filing a FEHA employment claim with the DFEH from one year to three years from the date of such unlawful practice. This new law went into effect on Jan. 1, 2020.

AB 9 clarifies that its application will not revive any FEHA claims that have already lapsed under the older one-year statute of limitations. However, this also means that any potential FEHA claims that did not lapse by Dec. 31, 2019, would now fall under the new three-year statute of limitations from the date of such unlawful practice.

Employers need to be prepared to defend against FEHA claims involving actions that took place up to three years ago and may involve applicants and 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.

In summary, employers must now prepare to defend against older claims of discrimination, harassment, and retaliation from applicants, employees, and former employees under AB 9 with the longer three-year statute of limitations in place. In addition to promptly responding to any allegations of discrimination, harassment, and retaliation in the workplace, employers should prepare detailed written records in a contemporaneous manner of any such allegations, and properly maintain such records to put themselves in the best position to defend against future claims.

Gage Dungy is a partner in the Sacramento office of Liebert Cassidy Whitmore. Gage provides management-side representation and legal counsel to public agencies and non-profit institutions in all matters pertaining to labor and employment law throughout the State of California. Gage can be reached at gdungy@lcwlegal.com.

Savana Manglona is an associate in the Sacramento office of Liebert Cassidy Whitmore. Savana provides advice and counsel to clients in a variety of matters pertaining to labor and employment law. Savana can be reached at smanglona@lcwlegal.com.