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End of harassment investigation triggers filing period

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in Discrimination and Harassment,HR Management,Human Resources

When it comes to filing a sexual harassment claim under California’s Fair Employment and Housing Act, employees have just one year from the date of the alleged sexual harassment to file a complaint with the California Department of Fair Employment and Housing. Missing that deadline bars the employee from suing.

But sexual harassment rarely occurs in a vacuum, and there’s rarely just one incident. Instead, separate acts may be linked together to create a sexually hostile environment. In California, a harassing incident that occurred more than a year ago may still count—if the conduct is determined to be part of a continuing violation. Under California law, a continuing violation is one that involves unlawful actions that are (1) sufficiently similar in kind, (2) occurred with reasonable frequency and (3) acquired a degree of permanence.

The last element may be satisfied when an internal investigation is final.

Recent case: Kristy Linkenhoker worked at a county jail and alleged that for more than a year her supervisor sexually harassed her by touching her, making inappropriate comments about the sexual behavior of the women he worked with and generally complaining that women should get married and pregnant. She sued for a sexually hostile work environment, but her employer said she had waited too long to file her complaint.

The court disagreed, concluding the alleged harassment was a continuing violation. Her one-year deadline started when the harassment acquired a degree of permanence. That occurred when Linkenhoker learned that her internal complaints and the investigation that followed were final and gave her no relief. She was allowed to link all the harassment together as a continuing violation. (Linkenhoker v. Rupf, et al., No. 06-05432-EDL, ND CA, 2007)

Final note: Keep careful track of when internal investigations begin and end. That way, you will be aware of relevant timetables if a claim arises.

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