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Clifford v. American Drug Stores8/22/2005
employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile." (Richards, supra, 26 Cal.4th at p. 802.) The standard enunciated in Richards has since been held to be equally applicable in cases of sexual harassment. (Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1004-1005.)
Prior to Richards, California courts had followed the two approaches developed by the Ninth Circuit Court of Appeals. (Richards, supra, 26 Cal.4th at pp. 813, 816; see e.g., Valdez v. City of Los Angeles, supra, 231 Cal.App.3d at pp. 1052-1054, following Williams v. Owens-Illinois, Inc. (9th Cir.1982) 665 F.2d 918, 924; City and County of San Francisco v. Fair Employment & Housing Com., supra, 191 Cal.App.3d at p. 983 [same]; Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1290-1291 [same]; cf. Accardi, supra, 17 Cal.App.4th at p. 349 [following Valdez and Watson].)
It is clear from the record that the concept of continuing violation addressed in Accardi was the one at issue before the trial court. It was addressed in the motion for summary adjudication and in opposition to Sav-On's motion to exclude evidence of acts prior to July 8, 1997. The Court of Appeal in Accardi described the doctrine as follows: "There is an equitable exception to the one-year period that is known as the continuing violation doctrine. [Citation.] Under this doctrine, a complaint arising under FEHA is timely if any of the discriminatory practices continues into the limitations period. [Citing Valdez v. City of Los Angeles, supra, 231 Cal.App.3d 1043, 1053.] Thus, a `". . . `. . . systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.' . . ."' [Citation.]" (Accardi, supra, 17 Cal.App.4th at p. 349.)
The Accardi court did not suggest a focus on the plaintiff's knowledge or whether the plaintiff acted with reasonable diligence in bringing the acts within the continuing violation doctrine, as did Sav-On's special instruction no. 4. Trial courts are required to follow the decisions of the California Supreme Court and Courts of Appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) " hile federal cases may be instructive in interpreting the FEHA, they are not controlling. [Citations.]" (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 643.) The special instruction requested was not in accord with the concept as expressed in Accardi.
Additionally, it would have instructed the jury that any acts of sexual harassment or retaliation which occurred more than one year before the filing of the administrative complaint "do not constitute a violation of the [FEHA]." Section 12940 sets forth the acts that constitute unlawful employment practices, including sexual harassment and retaliation. (See
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