“Continuing Violation” Theory Saves Employee’s Sexual Harassment Claim

Proskauer - California Employment Law

Proskauer - California Employment Law

Blue Fountain Pools & Spas Inc. v. Superior Court, 2020 WL 4581664 (Cal. Ct. App. 2020)

Daisy Arias alleged she suffered sustained, egregious sexual harassment for most of the time she was employed by Blue Fountain, which was directed at her by Sean Lagrave, a salesman who worked in the same office as Arias. Although the alleged harassment dated back to when she first began her employment with the company in 2006, Arias did not file an administrative complaint with the California Department of Fair Employment and Housing until after her employment ended in 2017. Blue Fountain filed a motion for summary adjudication seeking dismissal of the hostile work environment claim on the ground the claim was barred by the applicable statute of limitations.

When the trial court denied the motion for summary adjudication, Blue Fountain filed a petition for writ of mandate in the Court of Appeal seeking an order from the appellate court that would compel the trial court to grant defendant’s motion. However, the Court of Appeal denied the petition, holding that Arias’ claim was not barred by the statute of limitations on three grounds: (1) several incidents of sexual harassment occurred during the one-year period preceding the termination of her employment; (2) a new owner took over the business in 2015, “[t]hus, even if the conduct of prior management made further complaining futile [and thus commenced the running of the statute of limitations], the arrival of new management created a new opportunity to seek help”; and (3) there was a triable issue of fact as to whether a reasonable employee would have concluded complaining more was futile. Compare Willis v. City of Carlsbad, 48 Cal. App. 5th 1104 (2020) (city’s actions in reassigning officer and repeatedly denying him promotions were sufficiently “permanent” to preclude application of continuing-violation theory).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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