Long-Term Sexual-Harassment Claim Not Barred by One-Year Limitations Period

By Joanne Deschenaux September 4, 2020
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An employee who alleged that she suffered sustained, egregious sexual harassment for most of the 10 years she was employed by a pool and spa construction business could bring a hostile work environment lawsuit despite the one-year statute of limitations generally applicable to such claims, a California appeals court held. Because some of the harassing actions occurred within the one-year period, and those actions were related to the earlier actions, the continuing violation doctrine applied, the court said.

The employee claimed that a salesman who worked in the same office as she did repeatedly asked her for dates, grabbed her buttocks, described his sexual conquests and confronted her with photographs of himself engaging in sex acts with other women.

The employee complained about the salesman's conduct repeatedly over the course of her employment. On April 21, 2017, the salesman yelled at the employee in front of co-workers, used gender slurs and then physically assaulted her, bumping her chest with his own. The employee called the police and later left work.

The employee told the company's owner that she wasn't comfortable returning to work with the salesman. The owner refused to remove the salesman and then terminated the employee.

The employee also claimed that the company's owner ignored several complaints and participated himself in creating a sexualized environment in the office. She filed a lawsuit in August 2017, alleging hostile work environment sex discrimination, among other claims. The company filed a motion seeking to have the claim dismissed because such claims generally must be brought within one year of the allegedly harassing conduct, but the trial court denied the motion.

The company owner sought review of the trial court's decision in the appeals court. The owner noted that the employee began working at the company around October 2006. The salesman engaged in workplace sexual misconduct almost from the time she started, and the employee consistently complained about his conduct to her supervisors, who didn't correct the situation.

The owner argued that this meant that the one-year statute of limitations had run out on her hostile work environment claim unless she could show a continuing violation as established under California law. He argued that the employee's claim did not fall under that doctrine because a reasonable employee would have long ago understood from the company's actions that any further efforts to resolve her complaints and end the harassment were futile.

The company argued that this barred the employee's entire claim, even though some of the salesman's alleged actions occurred within the one-year limitations period. The court rejected this argument and held that the claim could proceed.

Continuing Violation Doctrine

The continuing violation doctrine allows plaintiffs to assert claims against employers for conduct that occurred outside the statute of limitations if the actions are sufficiently connected to unlawful conduct within the limitations period.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

In this case, there was evidence of unlawful conduct occurring within the statutory period, ending with the incident of April 21, 2017, when the salesman used gender slurs against the employee and physically assaulted her, the court noted. At a minimum, the court said, the employee was entitled to pursue her hostile work environment claim based on that conduct.

The employee could also seek recovery based on any unlawful discriminatory conduct that occurred during the entire period the employee worked for the company. That conduct formed part of a continuing violation, the court said.

When an employer engages in a continuing course of unlawful conduct, the statute of limitations does not necessarily begin to run when the employee first believes that his or her rights may have been violated, the court said. Rather, the statute begins to run either when the course of conduct is brought to an end—perhaps by the employer stopping such conduct or the employee resigning—or when the employee is put on notice that further efforts to end the unlawful conduct will be in vain.

None of that happened here, the court said. The company certainly didn't stop the harassment, nor did it make clear to the employee in a definitive manner that it wasn't going to attempt to solve the problem. Instead, it allowed the situation to boil over into physical violence and subsequently terminated the employee.

The trial court was correct to refuse to dismiss the hostile work environment sexual harassment claim, the court concluded.

Blue Fountain Pools and Spas Inc. v. Superior Court, Calif. Ct. App. No. E074121 (Aug. 10, 2020).

Professional Pointer: Employers should immediately address and stop any unlawful employment practices. The continuing violation doctrine may extend the time an aggrieved employee has to bring an action. 

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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