Rss

Time Limitations for Filing a Disability Discrimination Lawsuit

An employee must first receive a right to sue letter from the Department of Fair Employment and Housing (DFEH) prior to filing a disability discrimination lawsuit. An employee generally has 1 year from the time of the violation to file this charge. This 1 year period is known as the first statute of limitations. An employee has 1 year after receiving the letter to sue the employer, this is the second statute of limitations.

As with any law, there are exceptions, and they can get rather complicated. There are two major exceptions to these rules: the continuing violations doctrine and equitable tolling.

Continuing Violations Doctrine Depends on Whether the Incident was Discrete or Ongoing

The continuing violations doctrine allows employees to bring a charge to DFEH more than 1 year after discrimination occurred if the charge involves continuing discrimination and is brought within 1 year after the discriminatory behavior stopped. For most 1 time instances of discrimination, such as firing, failing to hire or promote, the continuing violations doctrine will not apply. The doctrine will only apply to cases where discrimination is ongoing to a specific individual; even if most of the discrimination occurred more than 1 year before filing a charge. In practice this usually means that the 1 year period does not actually start running until the employee quits, is terminated, or the employee responsible for the discrimination is terminated or leaves.

Equitable Tolling

The equitable tolling doctrine is a principal created by judges that seeks to impose fairness on statutes of limitations. It can potentially apply in many situations; however in practice it is usually effective in about 2 situations. The first is when an employee files a charge with the federal equivalent of DFEH, the Equal Opportunity Commission (EEOC). If DFEH gives the employee a right to sue letter, but the employee also files a charge with the EEOC, the 1 year period does not run for the duration of the EEOC’s investigation.

The second situation is when the employee is following internal grievance procedures. For example, if an employee suffers disability discrimination, they may bring a formal grievance charge, which will prevent the 1 year period from running during the pending grievance. However, there are limitations. The grievance system must have a hearing where the employee is able to present their claim and evidence of the discrimination.

Contact a Discrimination Disability Lawyer

To learn more about your rights under disability discrimination law call the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP at (858) 376-7390. Schedule a free consultation today.

Like This Post? Share It