Equal Employment Opportunity Commission

If you are currently deciding whether or not to file a disability discrimination lawsuit against your current or former employer, know that there are time limitations you should be aware of regarding your legal complaint.

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. After receiving the “right to sue” letter, an employee has another 1-year period within which he or she can sue the employer. This is known as 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

The Continuing Violations Doctrine essentially depends on whether the incident was “discrete” or “ongoing.” The 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 one-time instances of discrimination, such as firing or 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 Doctrine

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 two specific situations. The first is when an employee files a charge with the federal equivalent of DFEH, the Equal Employment 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 California employment attorney of Michelle Baker today. Give us a call at (858) 452-0093 or use our online submission form to schedule a Free Consultation.

A recently settled case out of Texas demonstrates that if you have a disabled individual in your immediate family, you may qualify for protection under the Americans with Disabilities Act (ADA). The case clearly demonstrated that an employer may not base his or her employment decisions on your association with the disabled family member.

The Case: EEOC v. DynMcDermott Petroleum Operations Company

In EEOC v. DynMcDermott Petroleum Operations Company, an employee worked for DynMcDermott (DM) as a planner and scheduler. He was laid off in 2003, but was later encouraged to reapply in 2007 after his wife developed terminal cancer. He applied, and the supervisor, Ray Wood, identified the former employee as the best qualified candidate. However, the site director, Tim Lewis, believed that the former employee should not be rehired because of his wife’s cancer, which would require him to spend time at home, and because he believed DM had too many older employees already. At the time the former employee was 56.

The site director then sent an email to the former employee explaining that even though others had wanted to hire him, he could not be hired because of his age, health problems, wife’s cancer, and former attendance problems. Wood told Lewis that the actions were illegal; Lewis disciplined Wood for insubordination as a result. But Wood nevertheless scheduled an interview with the former employee, who was allegedly the only qualified applicant. Nevertheless, another applicant, who was 34 years old was also interviewed and received the job offer.

A Violation of the Americans with Disabilities Act

The Equal Employment Opportunity Commission (EEOC) then brought a lawsuit on the former employee’s behalf, alleging the DM had violated the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act. During the lawsuit, the site director admitted that when the employee worked for DM he had not had attendance problems.

DM first won the case at the district court, which based its ruling on the fact that Wood made the actual hiring, rather than Lewis. However, the 5th Circuit Court of Appeals reversed the decision, requiring the case to go to a jury because as Wood’s supervisor, Lewis exercised a significant amount of influence over Wood. The 5th Circuit believed that it was enough that Lewis mentioned the former employee’s disabled wife and age as factors in the decision.

This case demonstrates that one does not need to be disabled in order to qualify for protection under ADA. Association with a disabled person is enough to qualify for protection. To learn more about your rights under disability discrimination law, contact California employment attorney Michelle Baker today. Call us at (858) 452-0093 or use our online form to schedule your Free Consultation.

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EEOC Wins Case for Man With Disabled Family Member