Metropolitan News-Enterprise


Friday, August 24, 2001


Page 1


State Supreme Court Reinstates Engineer’s Claim of ‘Continuing Violation’ Liability for Discrimination


By a MetNews Staff Writer


A discrete claim for disability discrimination occurring outside the one-year limitations period may be revived by a showing that it is part of a “continuing violation” of the Fair Employment and Housing Act, the state Supreme Court ruled yesterday.

“We conclude, consistent with the language and purposes of the FEHA, as well as federal and California case law, that an employer’s series of unlawful actions in a case of failure to reasonably accommodate an employee’s disability, or disability harassment should be viewed as a single, actionable course of conduct if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of “permanence” so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile,” Justice Kathryn M. Werdegar wrote.

Chief Justice Ronald M. George and Justices Joyce L. Kennard and Ming Chin concurred.

The decision overturns a Third District Court of Appeal ruling, which threw out a $1.4 million judgment in favor of a Sacramento engineer, Lachi Delisa Richards, who has multiple sclerosis and requires the use of a wheelchair. The high court ordered that the case go back to the trial court for a ruling on whether the defendant is entitled to a new trial based on the standard expressed in the opinion.

 Richards began having health problems in 1987 and was diagnosed as having MS the following year. CH2M Hill agreed to allow her to work part-time; to transfer from Redding to Sacramento, where the office was more conducive to a wheelchair-bound worker; and to do all of her work at the office or at home rather than have to go out into the field.

Her condition worsened, however, and she took a 10-month leave in 1989. She returned at the beginning of 1990, continuing to work part-time, performing some of her work at the Sacramento office and some at home, until her resignation in 1993.

Richards filed a Department of Fair Employment and Housing complaint in January 1994, and subsequently sued in Sacramento Superior Court. Judge Cecily Bond allowed Richards to present evidence of various incidents occurring more than a year before the administrative complaint was filed, holding that defendant’s conduct could be held a continuing violation.

The continuing-violation doctrine permits a plaintiff to prove that a series of acts show a cumulative pattern of bias, even if the individual acts might not constitute a basis for a claim if viewed in isolation. Such a pattern, courts have held, may include acts occurring outside the limitations period. 

Richards presented evidence that the company refused to provide her a computer for home use; demanded that she stop seeking private donations in order to obtain a computer because the solicitations embarrassed the firm; insisted that a cot which she used to rest during the work day be placed in inconvenient locations; and moved her office into an “all-purpose junk room area” after she returned from medical leave, giving her old office to a non-disabled employee.

Richards also raised a number of issues concerning office access. She claimed the company failed to adjust hard-to-open doors, forcing the plaintiff and her friends to deal with the problem themselves; refused to remove furniture and equipment that was left in a hallway, blocking her wheelchair; closed off an access door used by the plaintiff; and refused to apply non-skid tape or take other measures to enable Richards to safely use the wheelchair ramp when it became wet.

She also claimed she could not readily obtain supplies because the company insisted on keeping them in a supply room that could not be effectively accessed in her wheelchair. Her complaints about these things, she alleged, resulted in criticism by her superiors, including claims that she was “milking the company” because she was disabled.

Jurors found that Richards had been subjected to a hostile environment because of her disability and that the firm had denied her reasonable accommodation. They awarded $925,000 for emotional distress and $476,000 for economic losses.

Allowing Richards to base her claim on a five-year pattern, Werdegar wrote, wouldn’t necessarily violate the FEHA statute of limitations, Government Code Sec. 12960.

The statute requires that an administrative complaint be filed within one year of the “unlawful practice” giving rise to a claim. There is an exception which extends the period for up to 90 days if the plaintiff didn’t learn the facts forming the basis of the claim during the one-year period.

Werdegar rejected the employer’s argument that if an act clearly violates FEHA—for example not fixing a wheelchair ramp regularly used by a disabled employee—the “unlawful practice” necessarily terminates when the ramp is fixed and cannot be the subject of a suit if a complaint is not filed within a year.

“Unlawful practice,” in this context, is an ambiguous term, the justice wrote. “...Richards’ characterization of CH2M Hill’s failure to reasonably accommodate her disability over a five-year period as part of a single course of conduct ( informed by management’s mistaken belief that her MS was a preexisting condition and that she was trying to “milk” the company) is at least equally plausible and equally consistent with the meaning of the term ‘unlawful practice,’”  Werdegar concluded.

The term, she said, must be defined in a manner consistent with the purpose of the act—to protect employees from discrimination.  Requiring an employee to complain within the short limitations period, rather than seek a conciliation with the employer, would be inconsistent with that goal, Werdegar reasoned.

Justice Janice Rogers Brown dissented, saying the court had turned the rule into “a doctrine of continued violations by which the most ancient claims can hijack more recent claims to ride through the courtroom door in the face of statutory language that bars claims that knowingly occurred outside the one-year limitations period.”

In doing so, she said, the court had undermined the “considered balancing of interests” reflected by the statute of limitations.

The case is Richards v. CH2M Hill, Inc., 01 S.O.S. 4290.


Copyright 2001, Metropolitan News Company