New California Law Extends Statute of Limitations to File FEHA Claim to Three Years

Presently, an employee alleging harassment, discrimination, or other claim under California’s Fair Employment and Housing Act (“FEHA”) has one year from the alleged act to file a complaint with the Department of Fair Employment and Housing (“DFEH”). Filing such a complaint is a prerequisite to filing a civil action. The employee can either request that the DFEH immediately issue a Right to Sue Notice, or can opt to have the DFEH investigate the claim, which can take a year or even longer if the parties elect to participate in the DFEH’s mediation program. The employee will receive a Right to Sue Notice at the conclusion of the DFEH’s investigation. The employee then has one year to file a lawsuit.

On October 10, 2019, California Governor Gavin Newson signed AB9, also known as the Stop Harassment and Reporting Extension (SHARE) Act. The SHARE Act extends the one-year deadline to file a DFEH complaint to three years. Because the employee has one year to file a lawsuit after receiving the Right to Suit Notice, it could be four years or more before the potential lawsuit is filed.

The AB9 extension was purportedly designed to protect #MeToo litigants but extends to all forms of discrimination, harassment, and retaliation prohibited by FEHA. Former Governor Jerry Brown vetoed the same legislation last year, reasoning that the one-year statute of limitations “not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted.”

AB 9 will not revive claims that already have lapsed under the current one-year rule. It appears that claims that were set to expire in the coming months may have an extended life.