©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 105 Supreme Court held that the defendant employer has the burden to prove the plaintiff’s actual or constructive knowledge of a refusal to promote.253 This ruling places a premium on the employer’s use of clear, written notice of its employment decisions.254 “Continuing violation.” California discrimination plaintiffs can sue on acts preceding the limitations period if they are “sufficiently connected to unlawful conduct within the limitations period.”255 California courts thus permit suit on unlawful actions occurring beyond the limitations period if a course of conduct, continuing into the limitations period, has not reached a state of “permanence” and consists of acts “sufficiently similar in kind,” occurring with “sufficient frequency,” even if the employee already knew of facts sufficient to sustain a claim at a time preceding the limitations period.256 The Court of Appeal has applied the “continuing violation” doctrine to reverse a summary judgment against a gay CHP officer allegedly subjected to homophobic comments and to related conduct putting his safety at risk.257 The Court of Appeal concluded that the plaintiff had presented evidence of similar misconduct both before and during the limitations period, with reasonable frequency, and that the misconduct had not previously gained permanence because the employer had not definitely rejected the officer’s concerns about the harassment he was experiencing.258 In another “continuing violation” case, the Court of Appeal sustained a female spa employee’s hostile environment claim alleging unwelcome sexual overtures and assault by a company salesman.259 Her complaints to the company were unavailing and when a new owner took over the company the situation deteriorated further.260 Although much of the conduct preceded the limitations period, the Court of Appeal permitted the plaintiff to sue for it, because the new owner claimed to have a “zero tolerance” policy for sexual discrimination and the plaintiff could reasonably expect him to prevent further harassment, despite her unheard prior complaints, and as to those complaints the prior owner had not formally rejected her claims of harassment.261 Equitable tolling. California plaintiffs can extend suit-filing deadlines upon showing (1) timely notice to the defendant, (2) lack of prejudice to the defendant, and (3) reasonable conduct in good faith by the plaintiff.262 In a 2020 case, the Court of Appeal, reversing a summary judgment against a plaintiff for bringing an untimely FEHA claim, held that there was enough evidence for a jury to find that the FEHA limitations period had been equitably tolled by the filing of a workers’ compensation claim.263 Because that claim involved work-related stress arising from homophobic harassment that supported the later FEHA claim, the Court of Appeal concluded that an investigation concerning the source of the work-related stress should have preserved evidence concerning his discrimination claims.264 And even though the plaintiff waited 11 months after the workers’ compensation claim resolved to file his FEHA claim, he allegedly “was so distressed that he became suicidal and was unable to work, and he was denied adequate counselling while struggling to recover.”265 Disapproving contractual limitations. The Court of Appeal has rejected a defendant’s reliance on a contractually shortened limitations period in a sexual harassment lawsuit.266 The Court of Appeal concluded that a six-month limitations period was “unreasonable and against public policy.”267 Tolling individual claims during class actions. California law, like federal law, tolls the limitations period for individual claims during the pendency of class actions asserting those claims. The Court of Appeal so held in a case where a trial court granted summary judgment against a retail manager, concluding that his various wage and hour claims were all time-barred.268 The Court of Appeal held that the plaintiff could claim the benefit of classaction tolling, by which the limitations period for an individual claim is tolled from the time an asserted class action starts until the time when class certification is denied.269 The Court of Appeal held that the plaintiff could reasonably have relied on the pending class actions as a basis for postponing the filing of his own claims, and the
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