On October 10, 2019, Governor Gavin Newsom signed AB 9 into law. AB 9 extends the deadline for employees to file a charge of employment discrimination, harassment, or retaliation with the Department of Fair Employment and Housing (“DFEH”) from 1 year to 3 years. The new deadline is 3x longer than the current state requirement and 6x longer than the federal requirement. This is a very significant change that will make it more difficult for employers to defend themselves against lawsuits brought under California’s Fair Employment and Housing Act (“FEHA”).
What’s the Current Deadline for Employees?
In order to file a lawsuit in civil court for violations of the FEHA, an employee must first file a charge with the DFEH within one year of the alleged discriminatory, harassing, or retaliatory conduct. Once the employee obtains a “right to sue” notice from the DEFH, the employee has 1 more year to file the lawsuit in civil court.
How Does AB 9 Change the Law?
Effective January 1, 2020, AB 9 amends the FEHA to extend the time employees have to file their charge with the DFEH from 1 year to 3 years.
This legislation was passed in response to the #MeToo movement because employees who experience sexual harassment or assault may be slower to come forward than employees who experience other types of harassment or discrimination. However, AB 9 is not limited to sexual harassment; the extended deadline applies to all claims for violations of the FEHA (discrimination, harassment, and retaliation based on any protected characteristic).
How are Employers Impacted?
Once AB 9 takes effect, employers could potentially be sued for conduct that occurred 4 years earlier (the 3 years the employee had to bring the DFEH charge, plus the 1 additional year the employe can wait to sue after receiving his or her “right to sue” notice). Several more years are likely to pass before any such case goes to trial.
This lapse in time could negatively impact the ability of employers to defend themselves against these types of lawsuits. If an employer is not put on notice that an employee is bringing a claim (via a DFEH charge), the employer will not know to preserve relevant evidence by, for example, suspending the auto-delete function on potentially relevant email accounts. After 4 years, evidence that would be critical to the employer’s defense could be lost or destroyed simply because the employer did not have any reason to preserve it. Similarly, it far more likely that important witnesses will forget details or even leave the company if years pass before an employee brings a claim.
Perhaps even more troubling, if an employee who experienced harassment or discrimination at work does not come forward until years later, it may take that long for the employer to become aware of, and take steps to correct, that conduct.
Notably, former Governor Jerry Brown vetoed the same legislation last year due these exact concerns. He decided to maintain the current 1 year statute of limitations because the shorter deadline, “not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted.”
Is There Any Good News for Employers?
Yes! AB 9 is not retroactive, which means that, if an employee’s claim has already expired, it will not be revived.
You can read the full text of AB 9 here.