Experiencing sexual harassment in the workplace can be deeply traumatic. Coming to terms with what happened, beginning the healing process, and exploring your legal options can take significant time, resources, and energy—things that are not always available for victims of sexual harassment. Understanding the legal deadlines for filing a sexual harassment claim can give you the peace of mind that you are preserving your right to seek justice while focusing on your recovery and support. This blog will explain if you can file a lawsuit against your harasser if years have passed since the harassment occurred.
The Statute of Limitations in California
Sexual harassment claims in California are governed by the Fair Employment and Housing Act (FEHA). As of January 1, 2020, the FEHA gives employees three years from the date the harassment occurred to file a complaint with the California Department of Fair Employment and Housing (DFEH). If the harassment takes place over a period of time, the statute of limitations officially starts running once the harassment ends (for example, once the employee resigns, or once the harasser stops interacting with the employee). However, some nuances and exceptions apply to the default rule, a few of which will be discussed below.
The Continuing Violation Doctrine:
The “continuing violation doctrine” allows employees to sue for incidents of harassment that occurred outside of the statute of limitations if they were a part of a pattern of recurring harassment that continued into the statute of limitations period. Harassment that falls outside the statute of limitations may be included in a complaint under the continuing violation doctrine if it (1) is sufficiently similar to harassment that falls within the statute of limitations period, (2) occurred with reasonable frequency, and (3) did not acquire a degree of “permanence” that should have triggered an employee’s awareness and duty to assert their rights. Harassment will acquire a degree of “permanence” if it becomes clear to the employee that continuing to report the harassment within the company will not result in any meaningful remedial action.
Example:
An employee began experiencing frequent sexual harassment from her supervisor in March 2020. The employee reported the harassment to management several times, but management failed to act on her complaints. The employee concluded that further complaints would be pointless. The supervisor’s sexual harassment continued.
In March 2022, the company was bought out, and an entirely new management team was brought in. The supervisor continued sexually harassing the employee in the same manner and frequency as he had done before. The employee eventually reported the supervisor’s conduct to the new management in March 2026. The new management refused to fire the supervisor and told the employee to pick up her final check. The employee filed a complaint for sexual harassment with the Department of Fair Employment and Housing (FEHA) that same month.
In this scenario, the FEHA’s default statute of limitations would suggest that the employee could only include incidents of sexual harassment that occurred from March 2023 through March 2026 in her complaint (incidents up to three years before she filed her complaint). However, the continuing violation doctrine would allow the employee to include the harassment she experienced from March 2022 through March 2023 (incidents that occurred four years before the complaint was filed) as well.
While the sexual harassment the employee experienced from March 2020 through March 2022 was (1) sufficiently similar to the harassment that fell within the statute of limitations, and (2) occurred with reasonable frequency, it failed the third requirement of the continuing violation doctrine. Because the employee realized that further complaints to upper management would have been pointless, any harassment that occurred under that management would have a degree of “permanence,” and the employee would not be able to include that harassment in her complaint by using the continuing violation doctrine.
However, the arrival of new management in March 2022 made reporting to management no longer “pointless,” and it created a new opportunity for the employee to seek help. Therefore, the degree of “permanence” did not apply to any sexual harassment that occurred after March 2022.
Quid-Pro-Quo (This-For-That) Harassment:
If the workplace harassment only comes to fruition once an employer refuses to give the employee a job benefit that the employee otherwise deserves, the three-year statute of limitations timer only starts once the employee “knows or reasonably should have known” that the employer
refused to give them the job benefit, not when the employer actually made the decision to deny the employee the job benefit.
Example:
An employee who was dating her supervisor refused her supervisor’s request for the relationship to become sexual on February 1, 2020. The employee’s refusal motivated her supervisor (and the company) to deny the employee a promotion, even though she was the most qualified candidate. The company officially denied the employee of the promotion and offered it to a different candidate on March 1, 2020. However, there was no evidence that the employee knew or had any reason to know that she did not receive the promotion until she was sent an official rejection letter on May 1, 2020, notifying her that the position had gone to a different candidate.
In this scenario, the employee would have until May 1, 2023, not February 1, 2023, and not March 1, 2023, to file a quid-pro-quo sexual harassment complaint with the California Department of Fair Employment and Housing.
Doctrine of Equitable Tolling:
A court may “stop the clock” on the statute of limitations when an employee chooses to pursue an internal administrative remedy offered by the employer.
Example:
A professor was harassed by their co-worker in January 2020. In November 2022 (two years and ten months later), the professor filed a formal harassment complaint with the school about the incident. The school launched a formal investigation and told the professor that he could appeal the investigation’s results if the outcome was unfavorable to him. In March 2023 (three years and two months after the harassment occurred), the school completed its investigation and found no evidence supporting the professor’s claims of harassment. In April 2023, the professor appealed the investigation’s findings, and the school launched a second investigation. During the school’s second investigation, the professor filed a FEHA harassment complaint with the Department of Fair Employment and Housing. In May 2023, the school
finished their second investigation and concluded that the professor’s harassment allegations were unsubstantiated.
In this scenario, even though the professor filed the FEHA harassment complaint three years and three months after the harassment occurred, the doctrine of equitable tolling took effect and paused the statute of limitations from November 2022 (when the professor filed a complaint with the school) until May 2023 (when the school officially concluded the professor’s allegations were unsubstantiated). Therefore, when the professor filed the FEHA harassment complaint, the statute of limitations had only run for two years and ten months, and his complaint did not violate the FEHA’s three-year statute of limitations.
Conclusion:
If years have passed since the date of harassment you can still file a lawsuit if it is within the FEHA deadline. While there are situations and exceptions that extend or pause the FEHA’s deadline for legal action, the best practice is to consider the FEHA’s three-year statute of limitations as a hard deadline. Not taking action before the required time may result in you losing your eligibility to file a sexual harassment claim.
If you have suffered from sexual harassment in the workplace, do not hesitate to contact our team at Makarem & Associates for a consultation. At Makarem & Associates, we are dedicated to providing counsel, protecting your rights, and ensuring that you receive the justice you deserve. Call 800-610-9646, complete an online contact form, or engage with the live chat feature on our website to schedule a free consultation today.
