Is there a statute of limitations that I have to file a sexual harassment claim before?
A
statute of limitations is not something that only constrains matters in
criminal law, it also impacts sexual harassment claims that occur in
the workplace. Certain claims under Employment Law regulations have a
statute of limitation attached to the filing of the claim, meaning an
employee cannot just file a lawsuit at any time, they must file certain
claims within a certain time period that is set by statute. The law
requires that an employee file a claim within a certain time frame or
the claim will expire. An employee can avoid missing the statute of limitations on a sexual harassment claim
by being well informed of the deadlines that the law imposes. Every
case is different and it is important to ask an Employment Lawyer at
Stevens & McMillan to be advised in your particular case.
First
and foremost, before looking into the statute of limitations on sexual
harassment, the employee might need to know if they were sexually
harassed in the first place. Because the statute of limitations concerns
the act of sexual harassment and when it occurred it is useful for the
employee to know all the types of behaviors that fall under sexual
harassment. Certain behavior is considered sexual harassment under the
law, such as unwanted sexual advances or romantic pursuit, and other
unwelcome conduct that is of a sexual nature, including verbal comments,
inappropriate touching, lewd gestures, and visuals, depiction of sexual
acts or sexual content, including sexual innuendo and/or words, lewd
jokes and derogatory statements directed at an employee based on gender.
Examples these acts may be demonstrated through asking the employee on
a date, imitating or acting out sexual acts such as oral sex, any kind
of unwanted touching that is not acceptable in the course of everyday
life, blocking an entry or exit with their body, making comments that
are about sex, cat-calling, blowing kisses, winking, and even sending
emails or texts that are of a sexual nature. The behaviors and acts
mentioned is not an exhaustive list, but as you will read below, being
able to identify sexual harassment and all the forms it may take might
have the potential to set a statute of limitations at a farther in the
future date. If you are uncertain if you were sexually harassed by your
coworker or boss you should discuss the details of what happened to you
with an Employment Law Attorney.
An
employee who has been sexually harassed at work or in a work setting
does need to file their claim before the statute of limitations expires.
Before the employee is able to file in Court, the employee must exhaust
administrative remedies through the Department of Fair Employment and
Housing (DFEH). In California, an employee who has been sexually
harassed in the workplace needs to file a complaint about the sexual
harassment with the DFEH. Not only do they need to file a complaint with
the DFEH, the complaint must be filed within 12 months of the most
recent act. For example, Tammy has endured unwelcome sexual advances
made by her boss towards her for the last six months. On numerous
occasions, he has made comments to her about her breasts and often tried
and sometimes succeeds at giving her back and neck massages. Over the
course of the six months, Tammy has made several complaints to the Human
Resources Department about her boss' unwelcome touching and his
offensive remarks, yet nothing has been done to remedy the situation.
Tammy recalls the last incident occurred on March 2, 2017, which was the
day she filed her last complaint with the Human Resources Department
after her Boss tried to massage her neck again. Because this was the
last time her boss had sexually harassed her, she must file her sexual
harassment complaint with the DFEH by March 2, 2018, in order to protect
the statute of limitations and be able to file a lawsuit.
After
a complaint is filed with the DFEH, the employee may be given a
right-to-sue letter, This means that the employee who filed the
complaint has exhausted her administrative remedies and now has
permission from the department to sue their employer or organization.
Alternatively, the employee may ask for a right-to-sue notice, which
means that the Plaintiff is requesting the DFEH stop conducting an
investigation and therefore the employee can begin legal proceedings.
Once the employee receives either a right-to-sue letter or a notice of
case closure, the employee has 12 months from that date to bring a civil
lawsuit in Court against their employer for sexual harassment.
Keep
in mind that filing the complaint does not mean that the employee has
commenced legal proceedings. Also, the Department producing a
right-to-sue letter does not mean the employee is guaranteed to have a
successful case, it is formal permission to begin legal proceedings
against the employer. For instance, the employee may hire an Employment
Lawyer upon receiving the right-to-sue letter. The employee may call
an Employment Lawyer because that is the type of attorney who handles
sexual harassment cases that take place at work.
Although
an employee may feel pressured and restricted by the enforcement of a
statute of limitations on sexual harassment claims, one of the reasons
it may positively impact the employee is that they have a better chance
of obtaining fresher evidence. This means that the statute of
limitations may encourage employees to obtain witnesses statements
sooner while the details of the circumstances are still fresh in the
mind of the witnesses and even for the employee themselves. So while
the statute of limitations can feel like it is working against the
employee, it can also aid in building a stronger case. In addition, if
the employee decided to hire an Employment Lawyer,
the sooner the employee files their complaint with the DFEH, the more
time the legal team will have to investigate the matter and put the case
together.
Again, each
potential case is different and if you feel that you have a sexual
harassment issue in the workplace, you should still reach out to Stevens
& McMillan to discuss your potential claim.
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