Question:

I am the President of a large company with offices in several states. One of my California employees, a sales person, recently complained that when she got a new supervisor four years ago, he decreased her sales accounts and made rude comments to her because she is female. I don’t know why she waited so long to make a complaint. Isn’t it too late to do anything about this now? She says her supervisor is still making rude comments and taking accounts away from her and assigning them to her male co-workers.

Answer:

Based on the information you provided, it appears your employee may have a claim for sex discrimination, depending on what the “rude comments” are, and when they were made. Under California law, employers have a duty to take all reasonable steps to prevent unlawful harassment and discrimination. Employers also have an obligation to investigate all complaints of harassment and discrimination, and to take prompt and effective action to end the harassment or discrimination. Therefore, you are obligated to investigate the employee’s claims, even though it appears some of the conduct she is complaining about happened four years ago.
Another issue is whether your employee can file a claim and rely on the actions of her supervisor that occurred four years ago. Generally, the statute of limitations for a sexual harassment/discrimination claim is either one year from the alleged unlawful practice, if the claim is filed with the California Department of Fair Housing and Employment (DFEH), or 300 days from the alleged unlawful practice if the claim is filed with the Equal Employment Opportunity Commission (EEOC.) An employee must file a claim with one of these administrative agencies before suing in state or federal court.

A recent case discusses whether an employee can bring a claim based in part on actions that occurred before the one year or 300 day statute of limitations period. In Hammond v. County of Los Angeles, the plaintiff filed a claim with the DFEH for discrimination and harassment based on race, age discrimination, and retaliation. The employee claimed that for a period of three years, her supervisor harassed her, and that the employee suffered adverse employment actions when her teaching load was reduced and her teaching assignments were taken from her and reassigned to other teachers. The employer argued that the employee could not pursue her claim because the adverse employment actions occurred before the one year statue of limitations.

The Appellate Court decided that the employee could pursue her claim because there were acts of unlawful discrimination that occurred within the one year statue of limitations, even though many of the acts occurred during the prior three year period. The court reasoned that each discrete discriminatory act of assigning the employee’s classes to other teachers was a discriminatory act, and that some of those acts occurred within the one year limitations period. Also, the court explained that the existence of past acts of discrimination does not bar the employee from filing a claim about related discrete acts, as long as discriminatory acts also occur within the limitations period. The court reviewed prior cases holding that the employee could use the prior acts of discrimination as background evidence in support of her timely filed claim.

If your employee has been subjected to discrete, definable acts of discrimination that have occurred within the last year, she may have a claim relating to those acts. This may be true even though anything that occurred over one year ago cannot be the basis of her claim. The court may allow evidence of discriminatory acts that occurred over one year ago to establish that they were adverse employment actions based on the employee’s sex.

It is important to investigate your employee’s claims to determine if sex discrimination has occurred, and if your employee has suffered adverse employment actions by having her accounts decreased and reassigned. If your employee has suffered discrimination and adverse employment actions within the last year, she may be able to pursue a claim for the discriminatory acts, and evidence of her supervisor’s actions over the last four years may be admissible to establish discrimination.
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