IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA




LACHI DELISA RICHARDS,


Plaintiff and Respondent,


vs.

No. S087484

CH2M HILL, INC.,



Defendant and Appellant.

_____________________________


Table of Authorities

Topical Index (note: no pagination available in this version)

PETITIONER'S OPENING BRIEF ON THE MERITS



STATEMENT OF ISSUES PRESENTED(1)



(1) How does the continuing violation doctrine, an equitable exception to the statute of limitations under the Fair Employment and Housing Act (FEHA), apply where an employee is subjected to a pattern of discriminatory conduct which continues over a lengthy period of time?

(2) Does an employer satisfy its reasonable accommodation obligation under the FEHA by granting numerous accommodations (rather than the employee's most preferred accommodations) so she is enabled to perform the essential functions of her job?

(3) Are back pay and front pay damages available to an employee when she quits her employment and she does not claim (and there is no finding of) constructive discharge?



INTRODUCTION



This case presents three important issues involving the Fair Employment and Housing Act (FEHA), California's comprehensive scheme for combating employment discrimination. In the strongest possible terms, the Act declares as the "public policy of this state" that it is "necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination . . . ." (Gov. Code, 12920.)(2) The statute calls the opportunity to be free from such discrimination a "civil right." (Ibid.)

The FEHA's stated purpose is to provide "effective remedies" which will "eliminate," "prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons." ( 12920, 12920.5.) How this court resolves the three issues in this case will directly determine how effective the FEHA's remedies are in achieving that legislative goal.

The primary issue -- and the only one decided by the Court of Appeal -- is the application of the continuing violation doctrine under the FEHA. Under Government Code section 12960 of the FEHA, a complaint of discrimination must be filed with the Department of Fair Employment and Housing (DFEH) within one year of the date on which the alleged unlawful practice occurred. However, where an employer engages in a course of discriminatory conduct which continues into the limitations period, an employee may recover damages for acts which occurred more than a year before the claim was filed. This is called the continuing violation doctrine and is considered an equitable exception to the one-year statute of limitations in section 12960.

The leading California decision on continuing violation has been Accardi v. Superior Court (1993) 17 Cal.App.4th 341. It held that an employee's complaint relating to a continuing violation is timely if any of the discriminatory practices continued into the limitations period. As applied in Accardi, the continuing violation doctrine allowed the plaintiff to prove a pattern of discrimination and harassment that had lasted for 11 years.

In this case, plaintiff and respondent Lachi Richards developed multiple sclerosis ("MS") after five years of employment as an engineer working for defendant and appellant CH2M Hill. She proved that, after her MS diagnosis, her employer engaged -- in the words of the trial court -- in a "continuing pattern of harassment, neglect and a violation of her rights in terms of accommodations" and that its discriminatory conduct "continued on up until the day she left almost." (RT 2963.) The trial court specifically found that Richards made "superhuman efforts . . . almost, to keep this job and to educate the company as to how they ought to treat disabled employees." (Ibid.) Finally, realizing that her efforts had failed and her health was at serious risk, Richards resigned. She filed her DFEH complaint within one year of her employer's last discriminatory act.

The Court of Appeal reversed the judgment on the basis of a new requirement that has never been an element of the continuing violation doctrine under the FEHA and, if allowed to stand, will undermine enforcement of the Act for all kinds of discrimination. The court held the continuing violation doctrine is not available where the plaintiff reasonably should have known the employer's conduct was discriminatory more than a year before she filed. The court relied on decisions by certain federal circuits interpreting Title VII of the Civil Rights Act of 1964. (Richards v. CH2M Hill, Inc. (2000) 79 Cal.App.4th 570.)

What the appellate court ignored is that the unique provisions of the FEHA are much stronger than comparable sections of Title VII. The California Act requires "effective remedies" and authorizes damage remedies which go far beyond those in Title VII. It places a far greater premium than Title VII on informal conciliation, rather than litigation, as the preferred means for solving workplace disputes. And the FEHA explicitly states that the entire Act must be "construed liberally," a provision this court has applied to section 12960 itself. Each of these provisions mandates a broad application of the continuing violation doctrine.

The Court of Appeal's rule would reduce the effectiveness of FEHA remedies by denying relief for events which were part of an ongoing pattern of discriminatory treatment. The rule would also encourage an employee who experiences any discriminatory incidents -- sexist, racist or age-based remarks, unwanted touching, disability-based harassment -- to rush into litigation by filing a formal legal accusation with the DFEH and later by proceeding to a lawsuit. If she tries to work out these problems informally with her employer, she faces the very real danger that a court will decide she has forfeited her right to relief for the earlier incidents because she knew or should have known that the initial conduct was discriminatory. The decision discourages employees from engaging in informal conciliation, as Richards tried to do.

The second issue which this case presents is whether, when a jury finds an employer failed to make reasonable accommodation because it did not make the office accessible to a wheelchair-bound employee, that verdict can be reversed based on evidence the employer provided some other accommodations. In numerous decisions, the California Court of Appeal has held that the obligation to provide reasonable accommodation is extremely broad and flexible and that whether an employer met that duty is a factual issue subject to the substantial evidence standard of review.

In this case, there was substantial evidence that CH2M Hill erected, or failed to remove, physical obstacles that prevented Richards from moving around the office in her wheelchair and even from getting into and out of the building. Despite Richards' numerous requests for accommodation, she could not move through the hallways, do research in the library, get supplies, heat her lunch in the microwave oven in the company lunch room, wheel into the elevator, or even escape in case of a possible fire. CH2M Hill's contention that providing some accommodation necessarily satisfies the employer's legal duty should be rejected because it would decrease the effectiveness of FEHA remedies. It would allow an employer to make a few changes while withholding those changes necessary to permit a disabled worker to have full access to the workplace and to experience the benefits enjoyed by non-disabled employees.

The third issue is whether under the FEHA, damages for lost wages are available to an employee who quit her employment because of discrimination and/or harassment when no separate claim for constructive discharge was submitted to the jury. The jury here expressly found that Richards sustained wage losses "as a result of disability harassment" and "as a result of disability discrimination." It awarded Richards $476,000 as the "economic damages suffered by plaintiff as a result of defendant's conduct." (CT 2233, 2235, 2236.) The jury's findings are supported by abundant evidence.

Civil Code section 3333 answers this question. It specifies that in a noncontractual action, a plaintiff is entitled to damages which compensate for "all the detriment proximately caused" by the defendant's breach of duty, whether or not the damages could have been anticipated. Section 3333's applicability in FEHA actions is established by this court's holding in Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211 that all of the relief which is generally available in noncontractual actions may be obtained in a civil action under the FEHA. A recent Court of Appeal decision, Cloud v. Casey (1999) 76 Cal.App.4th 895, addressed this very issue and held that an employee who resigns because of discrimination, but who does not prove a constructive discharge, is nevertheless entitled to recover lost wages under the FEHA.

This court should resolve all three issues in favor of Lachi Richards. By doing so, the court will effectuate the FEHA's statutory purpose -- "to provide effective remedies that will eliminate these discriminatory practices" and "redress" their adverse effects. ( 12920, 12920.5.)



STATEMENT OF FACTS


Richards Overcomes Great Adversity to Become an Engineer.



In order to understand the context in which the continuing violation issue is likely to arise, one must understand the kind of person who tries to work problems out with her employer before resorting to the courts.

Lachi Richards overcame great personal adversity to become a brilliant young engineer. Her mother was white, the daughter of German immigrants living in Fresno. Her father, an African-American athlete, played professional baseball throughout the 1950's. Her parents' interracial marriage in the Central Valley in the late 1950's engendered great hostility against the family from relatives and outsiders. As a result of these pressures, Richards' father deserted the family when young Lachi was four. Her mother, still ostracized by her family for marrying a black man, left Richards when she was 15. Richards' German grandfather made threats of violence against her because he did not want any "niggers" in the family. Overcome with despair, Richards attempted suicide at age 16. (RT 286-299.)

Through courage and perseverance, Richards slowly turned her life around. Her natural athletic ability drew her into competitive running and provided the initial achievements that, along with counseling, helped Richards realize that, with hard work, she could be valued and respected. She developed into an honor student and a top high school sprinter. (RT 289-290, 292-294.)

Richards worked her way through college, working by day while going to classes at night and winning several academic scholarships. Throughout this period, she was running the 100-meter sprint and was ranked 15th in the nation for that event. When she earned her engineering degree in 1983, she had begun training for the 100 meter sprint at the 1984 Olympics. (RT 294-298.)

CH2M Hill Hires Richards



While in college, Richards won the Clair and Joan Hill scholarship for outstanding engineering students. Clair Hill was the founder of CH2M Hill. Through that scholarship, Richards met Hill and other firm managers and attended CH2M Hill functions. (RT 296-297.)

Shortly before graduation, Richards applied for a permanent engineering job at CH2M Hill. She had no known physical limitations and had recently been medically cleared to compete at an international level for the Olympics. Many CH2M Hill managers, including vice president Bob Harding, interviewed her, and the company offered her a job. Richards accepted that offer over others because CH2M Hill was an international company and a world leader in her field of engineering, environmental water resources. (RT 301-304, 986.)

CH2M Hill vice president Bob Harding held her up as a role model of someone who "strives for excellence" in the office and on the track. (Exh. 5, p. 1, RT 981-983.) He promised to accommodate Richards during her Olympic training by letting her work part-time, with no required field work or travel. He also offered her a leave of absence to participate in the Olympic games if she qualified. (Ultimately she missed making the Olympic trials by 8/100's of a second.) (RT 305-307, 984-985; Exh. 7.) From 1984-1988, Richards assumed increasing responsibility and the company consistently gave her excellent evaluations. Her managers recognized her thoroughness, analytic ability, poise, and exceptional people skills. They also ranked her highly for initiative, leadership, versatility, and ethical responsibility toward the company and the engineering profession.(3) (RT 311-316, Exhs. 46-56.)



Richards Is Diagnosed With Multiple Sclerosis



In late 1987 and 1988, when she resumed training for the 1988 Olympics, Richards began to experience increasing difficulties with tremors, walking, and facial drooping. She consulted several doctors but could not get a diagnosis. By April 1988, she started to use crutches or a wheelchair because of her problems with walking and to conserve her limited energy. Although formally assigned to the Redding office, which occupied a three-story building with no elevator, Richards had long been working out of the company's Sacramento office. Her supervisors agreed to let her stay in Sacramento on an informal basis until she had a diagnosis for her alarming symptoms. (RT 316-319, 353, 745-746.)

In October 1988, five years after she started at CH2M Hill, Dr. Roy Swank, an eminent neurologist, told Richards she had multiple sclerosis (MS), a progressive, debilitating disease of the central nervous system. (RT 318-319, Appendix to Appellant's Motion to Augment the Record on Appeal [hereinafter, "Appendix to Augment"], Tab 10, Swank Depo. at 129-131, read at RT 1387, Exh. 16.) He said she could continue working part-time but recommended she rest on a bed for 15 minutes twice a day during her work day. (RT 453.)

According to Dr. Swank, MS is a fluctuating disease in which a patient's disabling symptoms will vary according to the level of stress she experiences. If CH2M Hill gave Richards reasonable accommodation and cooperation, she could keep working there half-time for at least 20 years, he later testified. However, if she faced continuous lack of cooperation and was constantly fighting for her job and afraid of losing it, she would experience deep frustration, disabling fatigue and stress that could permanently damage her health. (Appendix to Augment, Tab 10, Swank Depo. at 18-23, read at RT 1379-1380.)

After the MS diagnosis, Richards continued to work 20-40 hours in CH2M Hill's Sacramento office. (RT 323-324.) Within four months her health deteriorated from excessive work, travel between Redding and Sacramento, and exhaustion from walking up three floors in the Redding office building. In March 1989, following Dr. Swank's orders, Richards began a leave of absence, which continued until January 1990. (RT 324-325, 328, 335-336, 758.) During her leave, she contacted various CH2M Hill managers to line up part-time work. By the time she returned to work in January 1990, Richards had commitments for more work than she could do. (RT 405-407.)



After Her MS Diagnosis, CH2M Hill Begins a Campaign of Harassment and Denies Richards Reasonable Accommodation



Vice president Harding, who had lauded Richards when she was an Olympic runner, now told other managers that Richards was a liar who had concealed her disability when she applied for employment five years before. (RT 711, 1006-1010, 1205-1209.) He said Richards was taking advantage of CH2M Hill and the company was "bending over backwards" for her.(4) (RT 1026-1027, Exh. 82, p. 2.) Harding's blatantly false accusation, which he spread throughout the company, set in motion years of harassment and resistance to Richards' patient requests for accommodation of her disability. According to the trial court, Harding's comments "triggered a great deal of the conduct and activity that was taken against her and lack of cooperation given to her." (RT 2963.) For example:

-Unjustified delay in transfer. Harding purposely delayed for 11 months acting on Richards' request for a formal transfer from Redding to Sacramento although he knew the three-story Redding office had no elevator and was not wheelchair accessible. Normally a transfer takes 60-75 days. When Harding reluctantly approved the transfer in February 1990, he specified that Richards be given work only after all other engineers were fully utilized. (RT 343-344, 1014-1018, 2225, Appendix to Augment, Tab 5, Harding Depo. at 22-23, read at RT 1017, Exh. 31.) A top CH2M Hill human resources manager, Mary Hill, testified she never heard anything that justified the delay in authorizing Richards' transfer. (Appendix to Augment, Tab 12, Wilson Depo. at 39, read at RT 1355.)

-Intimidation of Richards' supporters. Harding intimidated managers who expressed support for Richards. One of Harding's messages, delivered through a subordinate, was that anyone who brought up Richards' name to Harding would risk being fired. (RT 503, 507-508.) There was even evidence that Harding attempted to disrupt Richards' disability payments. (RT 676.)

-Denial of bed to rest on. Because Dr. Swank told Richards to rest on a bed during the work day, in November 1988 she asked Sacramento administrative manager Carol Uhouse for a bed to rest on. Uhouse kept promising to take care of it but did not. She then delegated the job of getting a bed to the office librarian but refused to accept her recommendations. After numerous delays, Uhouse finally gave Richards a folding Army cot and told her to buy her own mattress, sheets and pillow. Other CH2M Hill offices provided beds for their employees and did not require employee contributions for bedding. (RT 453-458.)

-Assignment to the "black hole." Uhouse informed Richards she could only use the cot in an unfinished, unheated, and uncooled storage area labeled the "black hole" on the office map. (Exh. 45.) Richards objected to the "black hole" because it was mid-winter and the "black hole" was very cold. She suggested a number of alternative sites for the cot in vacant CH2M Hill offices. Uhouse rejected Richards' recommendations and instead ordered the cot placed outside CH2M Hill's suite of offices, in an office vacated by another company. Richards had trouble unlocking the front door to that office from her wheelchair, and realtors with potential tenants kept interrupting her rest. (RT 485-490.)

-Moving the cot without notice. From early 1990 until late 1991, Uhouse routinely moved the cot without telling Richards, who had to spend her rest period wheeling all over the office searching for the missing cot. Uhouse refused Richards' request to be notified when the cot was moved. (RT 491-493, 795.) In late 1991, Richards' supervisor put the cot in an office where a pole made it impossible to close the door with the wheelchair inside. Because Uhouse insisted that Richards could rest only where she could not be seen lying down, the inability to close the door made even this location impractical. Richards gave up trying to rest in the office. (RT 795-797.)

-Refusal to provide a home computer. In August 1989, at her doctor's recommendation, Richards asked her supervisor Grant Davids if the company would provide her with a computer at home. By working partly at home, she could get more done and avoid paralyzing fatigue. (RT 328, 356-357.) Davids said it was unlikely the company would cooperate and agreed it would be better for her to seek funding for the computer from outside organizations. He wrote letters in support of her efforts. (RT 358-361, 758-759, Exhs. 36, 37.) Richards approached several organizations but, when one group called CH2M Hill to ask why it was not providing the computer, CH2M Hill managers attacked Richards for "disloyalty" and "badmouthing" the company. She was instructed to tell the organizations to withdraw the solicitations because CH2M Hill "was handling the matter." (RT 367-373.)(5)

The company never did provide a computer but in December 1989 Richards finally got one through funds provided by the California Department of Rehabilitation. In January 1990, however, Carol Uhouse and Sacramento regional manager Steve DeCou told her she could not use the computer to work at home because it was not company-owned so they could not bill clients for her computer usage. Richards suggested several solutions, including not billing the clients or leasing the computer to CH2M Hill, but Uhouse and DeCou turned them all down. Richards' immediate supervisors later said she could use her computer to work at home if she did not tell anyone in upper management. (RT 400, 477-484, 769.)

-Isolation in a storage area "office" with no furniture. In January 1990, when Richards returned from her medical leave of absence, manager Uhouse led her into an "all-purpose junk" area. (RT 408.) Uhouse pushed past equipment, printers, boxes, maps and files to the back end of the storage room. Pointing at the rug, Uhouse announced abruptly, "This is your office," and walked out. The area had no desk, no bookcases, no phone, no chair, no filing cabinets, and no trash can, all standard items for an engineer's office. (RT 405, 408-410, 517-519.) Davids told Richards that Uhouse said she had assigned Richards to the storage area because Richards was using her disease to "milk" the company. (RT 413-414.)

Richards' former office, which remained intact throughout her leave with all her possessions in it, was still available on the day she returned but was assigned to another engineer two days later. During that two-day period, all Richards' possessions mysteriously disappeared. It took her weeks to locate her things and she never found some of her design books and manuals. (RT 522-529.)

-Blocking office access. With typical resourcefulness, Richards found a desk, phone, bookcase and other equipment to set up an office. (RT 519-520, 531, 544-545.) But she had difficulty reaching the area because the aisles were blocked by furniture and equipment belonging to a department manager, Gary Dobson. Dobson was upset that Richards had been assigned to "his" storage space and he refused to move the obstacles when Richards asked him to. For six months, Richards had to shove a six-foot table, chairs, and a huge garbage can out of her way each time she came or went. Dobson would continually move the furniture back, blocking the path she had painstakingly cleared. Later, Richards got another office. (RT 532-536.)

-Failure to modify slippery wheelchair ramp. Richards had to use a wheelchair ramp to get into the Sacramento office building. Despite her repeated requests starting in 1990, CH2M Hill never modified the ramp and Richards' wheelchair skidded backwards whenever the ramp was wet from rain or from watering, which occurred every second or third day. In 1991, Richards got a power wheelchair, which eased the problem somewhat, but she still faced the ramp problem whenever the power wheelchair or her van were not working or when she needed her manual chair for visiting clients. (RT 460-461, 546-548, 2520-2521.) Carol Uhouse rejected all of Richards' suggestions for fixing the problem. The cheapest solution, application of nonstick tape, would have cost only $30, but Uhouse refused, saying it would make the building "unattractive." (RT 476-477, 548, 551-552.) A related problem was that mail and delivery trucks often blocked the bottom of the ramp so Richards could not enter or leave the building. (RT 812, Exhs. 19, 68.)

-Elevator doors slamming shut on Richards. The company never modified a lip or the timing on the building elevator. When Richards backed up her wheelchair to get a running start to clear the lip, the elevator doors would slam shut on her, knocking everything she was carrying to the floor. (RT 585-588.) Although Richards continually raised the problem to Carol Uhouse and her assistant Scott Olsen, nothing was ever done. (RT 591-592, 595, Exh. 18.)

-Blocking lunchroom access. When Richards first returned to work in January 1990, she had full access to the entire employee lunchroom. Later that year, CH2M Hill placed tables, 50-gallon recycling bins and vending machines in the lunchroom. These blocked Richards' access to much of the lunchroom, including the microwave oven, where she had to heat her medically-approved lunch, and the first-aid supplies. Occasionally the company moved some items, giving Richards access for a few days, but other barriers quickly took their place. Richards repeatedly mentioned these problems to Uhouse, who promised to fix them but never did. (RT 576-584.) In fact, at one point, Uhouse moved the microwave from an accessible counter to an inaccessible location because, as she told Richards, she needed the counter space for "tea bags and the pickles." (RT 580.)

-Blocking library access and fire escape route. For a while Richards could wheel her chair into most of the company library, except for two stacks. However, in 1990 the company placed a micro-fiche machine in the aisleway, completely blocking Richards' access to the entire library. Despite her repeated requests, nothing was done. (RT 603-606.) In early 1992, the library was moved so the space it occupied could be made into offices for Uhouse's staff. (RT 612.) The new library location was a hallway which was the only fire exit from that part of the building. The hall was so narrow that Richards could not make a U-turn in case of a fire. (RT 612-613.) Richards, who was afraid of getting trapped in a fire, discussed the problem with management but no change was made. (RT 619-620.)

-No fire escape ramp for Richards' wheelchair. Richards frequently raised other fire escape issues. The fire exit nearest her office had no ramp for her wheelchair, just a drop-off which she could not use in her wheelchair and which was often blocked by parked vehicles. (RT 465-468, 622; Exh. 105.) The company never devised a plan about how she could escape from upstairs during a fire. (RT 1310-1312; Exh. 68.) -Blocking Access To Office Supplies. Beginning in 1990, CH2M Hill blocked Richards' access to the supply room by placing big cases of paper in an aisle. Richards asked Uhouse and department manager Loren Bottorff to move the barriers, without success. (RT 596-597.) Later the company moved the supply room to a smaller room whose entrance was too narrow for Richards' wheelchair. Her request that the supplies she used most frequently be placed where she could reach them was never acted on. (RT 597-602.)

-Refusal to clear hallways. The hallway to the restroom was crowded with empty boxes that Richards had trouble getting by. At times, the teetering boxes were stacked so high that they fell on Richards as she wheeled past. (RT 613-614.) Other hallways were blocked with bookcases, filing cabinets and equipment so Richards could not turn around or pass another person. (RT 616-622.) These obstacles prevented her from entering the office of an employee whom she supervised and from conferring with colleagues throughout the Sacramento office. (RT 620-621, 2534-2535.) Richards frequently told management about these barriers and took Uhouse's assistant, Scott Olsen, on tours around the office to illustrate her concerns. She would say, "See, I can't turn around here," or "See, I am hitting my hands on the sides. It's too tight." (RT 622-623.) In an attempt to solve this problem and educate CH2M Hill, Richards provided management with booklets that spelled out the standard dimensions needed for wheelchair travel and turns. Carol Uhouse viewed the booklets as "threats" to CH2M Hill. (RT 433-436, 442.) The hallway blockage continued unabated. (RT 623, 668-669.)

-Closing the reception area door. The reception area door had always been kept open but in September 1990, Uhouse ordered it closed because she claimed the area was too noisy. Richards could not open the heavy door from her manual wheelchair. (RT 623-624.) Uhouse told Richards to use another door, which required Richards to push her manual wheelchair along a much longer route. When Richards said the extra distance was a problem for her MS-weakened arms, Uhouse crossed her arms across her chest and said, "The door stays shut unless you tell me you absolutely can't work with the door like this." (RT 626-627.) Fearing she was being set up to be fired, Richards agreed to try the alternate route for a week but found it too exhausting. (RT 628-629.) Uhouse finally agreed to Richards' compromise solution: leave the door open during the morning and closed in the afternoon. (RT 633-634.)

-Failure to adjust tension on office doors. Uhouse failed to respond to Richards' numerous requests in early 1990 to have the tension on four other doors adjusted. The doors were 12 feet high, heavy, and set to close automatically. Richards could not open them from her wheelchair. Uhouse continually promised to "take care of it," but did nothing. A janitor made one attempt to adjust one door, but it still was hard to open. Finally, Richards got her friends to fix the problem over a weekend. (RT 538-543.)

-Assignment to strenuous field assignment. In mid-1990, Norm Brazelton, a top CH2M Hill manager, asked Richards to take a field assignment which would have required her to walk all day along canal banks and climb over barbed wire fences and into pipes. It was obvious that the wheelchair-restricted Richards could not handle the job but Brazelton insisted she do it. Concerned that she was being set up to fail, Richards, through her supervisor, proposed alternative ways to participate in the project. Brazelton then dropped the whole idea but refused to speak to her for several months. (RT 634-642.)



Richards Tries to Educate CH2M Hill About Multiple Sclerosis

and Reasonable Accommodation



Soon after her diagnosis, Richards began to educate herself and CH2M Hill about her illness and the accommodations that would allow her to keep working. She spoke briefly by telephone with an attorney to find out whether her request for a home computer was reasonable. She later visited the Resources for Independent Living Center to get information to share with her employer about the amount of space needed for wheelchair movement. (RT 433-436, 440-442.) She took these steps because every time she contacted CH2M Hill management about the problems she was encountering, she was told, "We have these concerns, but we don't have the answer." (RT 442.)

In January 1990, after returning from her leave of absence, she met with Carol Uhouse and Sacramento regional manager Steve DeCou. Using a detailed memorandum she had prepared at her supervisor's suggestion, she explained what she had learned about multiple sclerosis, the accommodations she might need to keep working, and the bleak future she faced if she could not work. (RT 417-432, Exh. 15.) "This is an educational process for both of us," her memo stated. "I look forward to working with you and in resolving any conflict in this difficult situation." (RT 431-432; Exh. 15, pp. 6-7.) Uhouse and DeCou refused to understand Richards' urgent need and desire to keep working. They kept saying: "You can go home, be on disability. You don't have any worries." (RT 439.)

Richards requested permission to circulate a memorandum about MS to the staff because some employees thought she was fatally ill and seemed uncomfortable seeing her in a wheelchair. DeCou immediately denied her request as "inappropriate." Richards urged him to read the memo and reconsider. DeCou later allowed her to circulate the memo. (RT 446-453, Exh. 16.)

On October 3, 1990, Richards wrote another memorandum to Uhouse, in which she described the many access obstacles she was facing and suggested practical solutions. (Exh. 18.) At first Uhouse grew angry and refused to make changes, but then she told Richards, "I will take care of them in my own way." (RT 589, 595.) Uhouse made a few small and delayed changes, just enough to keep Richards from giving up. She promised other changes, which never occurred.

Uhouse found Richards' requests an "irritant" and told other managers Richards was using her MS to "milk" the company, which was "bending over backwards to let [her] in the door." (RT 413; Exh. 82, p. 2.) According to an in-house investigation report prepared by CH2M Hill after Richards' 1993 resignation: "Ms. Uhouse by her own admission felt that Ms. Richards was taking advantage of her condition and elicited sympathy and favors from other employees. The fact that Ms. Richards was continually requesting accommodations and was in need of special attention was an irritant to Ms. Uhouse. (Confirmed by Ms. Uhouse)." (Exh. 82, p. 2.)

Supervisors Give Richards Conflicting Advice:

"Lay Low, Let Things Blow Over" and

"Nothing Will Ever Change"



Over the years, Richards got various recommendations from her immediate supervisors about how to deal with the ongoing harassment and failure to accommodate her. One supervisor advised her to "lay low, let things blow over" (RT 1088), "keep a low profile, let the fervor die down" (RT 468), and "let time pass." (Appendix to Augment, Tab 3, Davids Depo. at 50, read at RT 1089.) Another warned that if she persisted in asking Carol Uhouse for accommodations, she would be risking her job and that nothing would ever change. (RT 473-474, 630, 669.)

Out of necessity, Richards kept bringing the problems to the attention of Uhouse, Uhouse's assistants, and Richards' own supervisors. On January 27, 1993, she met with her supervisor Loren Bottorff concerning her annual evaluation and spoke to him for hours concerning the continuing problems which the company had failed to rectify. She said she was "very disappointed" that nothing had been done since she raised the same issues during her 1992 evaluation. (RT 667-668; Exh. 68.)

Richards prepared written comments to attach to her evaluation, identifying a few of the areas discussed, and expressed her deep sense of frustration. (RT 665, 667-669.) Because of barriers in the hallways, she still had difficulty getting through halls or entering offices. The "situation continues to get worse" and "[e]ven after several complaints I have less access to fewer places today" than three years earlier. She did not have a dependable fire escape route. "I don't think that a reasonable effort has been made in the areas of my accessibility or safety." "I am tired of complaining . . . . [H]ow much more complaining do I need to do?" (Exh. 68, pp. 2-3.)

Bottorff took Richards' comments to Kathy Metzger, Carol Uhouse's new assistant. Like previous Uhouse aides and Richards' supervisors, Metzger tried to work on the problems but reported she was having difficulty getting things done. (RT 949, 954.) She moved the microwave oven where Richards could reach it, but a few days later two ice chests blocked the microwave completely. (RT 584, 904-5.) Metzger told Richards that bookcases would be moved from the hallways but Uhouse said she did not have the staff to do that. (RT 950, 1518; Exh. 21, p. 3.) Metzger made numerous telephone calls to discuss Richards' problems but could not get staff to return her calls. (RT 951, 1519.) Ultimately, Metzer did accomplish a few things but Richards got "flak" from other employees about the changes. (RT 905.)



Richards Submits Her Resignation Because of "Acts of Discrimination Which Makes My Work Situation Intolerable"



CH2M Hill's four-year pattern of harassment, hostility, and discrimination took its toll. On February 22, 1993, Richards gave notice, effective March 8th, and said exactly why: "Employees of CH2M Hill have committed acts of discrimination which makes my work situation intolerable." These acts have "impacted my physical health to the point that I am now forced to resign." "I love working, and wish that CH2M Hill had responded to my requests for help and correction of these situations." (Exh. 68.)

Richards testified that the "accumulation of all these things that happened for years, for years from 1989 to the day I left . . . was unbearable for me. I could not work there any longer." "It was intolerable." (Ibid.) She explained why she had waited so long (RT 680-681):



"I am not a quitter, and I have overcome all kinds of things throughout my life. And I had viewed this as just another problem I could overcome, and I was thinking, 'I can't quit. I am not a quitter. I can't quit,' but I knew my health was on the line. I was risking my health, permanent damage to my health. . . . They either had to stop doing this or I was going to lose my health, and they wouldn't stop."





She also testified that, while taking a class at a local college in January 1993, she had encountered access problems like those at work but the college immediately solved them. The contrast electrified her (RT 682-684, emphasis added):



"[I]t was like a light bulb going on. . . . I went home from school that day, and I thought, I am a human being again. I was one of the class. I wasn't a reject off in the black hole someplace, you know? . . . I had been getting used to being treated bad because it had been going on so long. And when I finally saw that someone would treat me with value, I was still valued as a person, it made a big impact on me."



Despite the few modifications which CH2M Hill made for Lachi Richards, the harassment, discrimination and hostile attitudes of management never changed. The trial judge recognized this, finding that CH2M Hill's "continuing pattern of harassment, neglect and a violation of her rights in terms of accommodations . . . continued on up until the day she left, practically." (RT 2963.)



PROCEDURAL HISTORY



Richards filed her administrative complaint with the DFEH on January 25, 1994. (RB 63.) After receiving a right-to-sue letter, she filed a civil action against CH2M Hill under the FEHA. After a six-week trial, plaintiff's case went to the jury on her claims of disability harassment and disability discrimination by failure to accommodate. She did not proceed on a claim for constructive discharge.

In its special verdict, the jury found that CH2M Hill had harassed Richards and had discriminated against her by failing to provide her with reasonable accommodations. (CT 2233-2234.) Plaintiff's disability was a "motivating factor" for the company's harassment and discrimination, the jury concluded. (Ibid.) The jury awarded $476,000 in lost earnings and $925,000 for Richards' severe emotional distress. (CT 2236.)

In denying CH2M Hill's post-trial motions, the trial court found that defendant engaged in "a continuing pattern of harassment, neglect and a violation of her rights in terms of accommodations, even reasonable accommodations" and its discriminatory treatment was a "matter that continued on up until the day she left, practically." (RT 2963.) The trial showed the "superhuman efforts [Richards] made, almost, to keep this job and to educate the company as to how they ought to treat disabled employees," the court declared. "I think [CH2M Hill's] own employees came to that same conclusion." (Ibid. See Exh. 82 and fn. 10, infra.)

The court specifically observed that Richards' credibility was "very high, and I certainly think the jury is well justified in relying on her as a witness." (RT 2962.)



LEGAL ARGUMENTS



PART I



How does the continuing violation doctrine, an equitable exception to the statute of limitations under the Fair Employment and Housing Act (FEHA), apply where any employee is subjected to a pattern of discriminatory conduct which continues over a lengthy period of time?



________________________





I. THIS COURT SHOULD ADOPT THE RULE IN ACCARDI v. SUPERIOR COURT TO DEFINE THE CONTINUING VIOLATION DOCTRINE BECAUSE IT IS NECESSARY TO IMPLEMENT CALIFORNIA'S FAIR EMPLOYMENT AND HOUSING ACT.



A. The FEHA Is a Comprehensive Statute Intended to Provide Effective Remedies to Eliminate Discrimination and to Redress Its Pernicious Effects.



The FEHA establishes a comprehensive scheme for combating employment discrimination. (Brown v. Superior Court (1984) 37 Cal.3d 477, 485.) It declares as the "public policy of this state" that it is "necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination. . . ." (Gov. Code, 12920.) This court has declared that policy to be "fundamental" (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, at p. 220; Brown v. Superior Court, supra, 37 Cal.3d 477, at p. 485; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129) and has consistently emphasized the breadth of the FEHA. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1157.)

The opportunity to be free from discriminatory practices in seeking, obtaining, and holding employment is a "civil right." ( 12921.) The Legislature found that employment discrimination "foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general." ( 12920.) The Legislature enacted the FEHA as an exercise of the police power to protect the "welfare, health, and peace of the people of this state." (Ibid.)

The express purpose of the Act is "to provide effective remedies which will eliminate such discriminatory practices." ( 12920.) That purpose is so important that it is expressed twice in the Act: in sections 12920 and 12920.5. Section 12920.5 provides that, in order to eliminate discrimination, it is "necessary to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons." ( 12920.5, emphasis added.) Consistent with its emphasis on strong remedies, the FEHA permits discrimination victims who bring civil actions to recover full compensatory and punitive damages as well as back and front pay. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, at p. 221; State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 434.)

The Legislature has directed that the FEHA be "liberally" construed in order to accomplish its legislative purposes. ( 12993, subd. (a).)



B. Consistent With The FEHA Statutory Scheme, Accardi Wisely Permits a Discrimination Victim to Present Evidence of, and to Obtain Redress for, the Entire Sequence of Unlawful Conduct.



The FEHA's statute of limitations appears in section 12960. It provides that no complaint for any violation of its provisions may be filed with the Department of Fair Employment and Housing (DFEH) "after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred," with two exceptions not relevant here.(6)

California has recognized, however, that where an employer engages in a pattern of discriminatory conduct which continues into the limitations period, an employee may recover damages for acts which occurred more than a year before the claim was filed. This is the continuing violation doctrine, which is recognized as an equitable exception to the one-year statute of limitations in section 12960. (See, e.g., Accardi v. Superior Court, supra, 17 Cal.App.4th 341, at p. 349; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1052; Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1290-1291.)

Accardi v. Superior Court, supra, has been the leading California decision on continuing violation. It held that an employee's complaint relating to a continuing violation is timely if any of the discriminatory practices continues into the limitations period. (17 Cal.App.4th, at p. 349.) In Accardi, co-workers and supervisors subjected a female police officer to extensive sexual harassment and discrimination from 1980 to 1989. In 1989, she suffered a knee injury. In 1991, the city denied her light duty assignments given to male officers and subjected her to false medical reports. She filed sexual discrimination complaints with the DFEH in October 1991 and later filed a law suit. Sustaining demurrers, the trial court held the sexual harassment claim was time-barred and the continuing violation doctrine was inapplicable because the only events occurring within the one-year limitations period before the DFEH complaint did not relate to sexual harassment.

The Court of Appeal in Accardi issued a writ, directing the trial court to overrule the demurrers. Under the continuing violation doctrine, an FEHA complaint is timely if any of the discriminatory practices continues into the limitations period, the appellate court held. The gist of the plaintiff's complaint was that the police department waged a decade-long campaign against her based on her gender. Although viewed in isolation, her post-injury treatment might not appear to reflect sex discrimination, the plaintiff was entitled to prove she was subjected to a deliberate pattern of discrimination aimed at ridding the police department of female officers.

The Accardi court noted the well-established principle that the trier of fact must determine discrimination in light of "the record as a whole" and "the totality of the circumstances." (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 69.) "A view of the events from beginning to end enables the trier of fact to see their relationship to one another, and consequently their meaning and significance," the court reasoned. "That there are gaps between specific incidents of sexual harassment does not preclude a finding of continuing violation." (17 Cal.App.4th, at p. 351.)

In Accardi, the continuing violation doctrine permitted the plaintiff to prove sexually discriminatory conduct which stretched over 11 years. Without the continuing violation doctrine, the plaintiff would have been limited to an artificially narrow case involving the events following her knee injury and excluding the decade-long pattern of sexual harassment that she had experienced -- a truncated version of reality. As the Accardi court declared: "A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario." (Id., at p. 351.)

Accardi's interpretation of continuing violation is consistent with the text of Government Code section 12960, which prohibits the filing of a complaint after the expiration of one year from the date on which the "alleged unlawful practice or refusal to cooperate occurred." In a continuing violation, the "alleged unlawful practice" is the series of related incidents, i.e., the pattern or practice of discriminatory conduct, in which at least one act occurred within the one year period. In Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, this court recognized that, although the FEHA lists unlawful practices, it does not define "practice." Quoting from lay and legal dictionaries, the court defined "practice" in the FEHA as "a course of conduct, i.e., 'to do or perform often, customarily, or habitually; to make a practice of' . . .; '[r]epeated or customary action; habitual performance; a succession of acts of similar kind . . . .'" (Id., at p. 269, citations omitted.) Thus, the "unlawful practice" in section 12960 may refer to the entire discriminatory course of conduct. So long as the employee files her charge within a year of the last illegal act, the charge is timely.

In contrast to Accardi, the Court of Appeal's rule would require a court, using 20-20 hindsight, to identify the specific moment when the plaintiff should have recognized that her employer was discriminating against her. If that instant was before the start of the one-year period, the continuing violation doctrine would be unavailable and the plaintiff would lose her right to prove the employer's pattern of discrimination. Moreover, if the plaintiff objected to her illegal treatment and tried to get it stopped, her efforts would be viewed as proof she knew she was being discriminated against and thus should have filed a DFEH complaint immediately. As a practical matter, the continuing violation doctrine would be available only where the prior events were so innocuous or ambiguous that no reasonable person could have seen them as discriminatory.

The Court of Appeal's approach would prevent the trier of fact from seeing "the overall scenario" and from making a bias victim whole. If allowed to stand, it will disrupt enforcement of the FEHA and undermine its fundamental public policy to "protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination."(7) ( 12920.)

II. THE COURT OF APPEAL ERRED BY DECIDING THIS CASE UNDER FEDERAL TITLE VII LAW BECAUSE THE FEHA'S DISTINCT PROVISIONS MANDATE A BROAD INTERPRETATION OF THE CONTINUING VIOLATION DOCTRINE.



A. The FEHA's Unique Provisions Make Reliance on Federal Law Improper.



This court should not decide this case based on federal decisions interpreting Title VII of the Civil Rights Act of 1964. (42 U.S.C. 2000e et seq.) The FEHA's distinctive provisions are far stronger than comparable sections of Title VII and require an expansive application of the continuing violation doctrine. As we will discuss in detail in subsection B below, this court has refused to follow federal Title VII precedents which are not persuasive "[i]n light of the language and purpose of the FEHA." (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 499. Accord: Johnson v. City of Loma Linda (8/24/2000) 2000 Daily Journal D.A.R. 9417, 9420.)

Unlike Title VII, the FEHA places explicit statutory emphasis on the need for "effective remedies" which will "eliminate" and "prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons." ( 12920, 12920.5.) To carry out that commitment, the FEHA authorizes recovery of full compensatory and punitive damages in civil actions and full back pay. Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, at p. 221; Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 48.

By contrast, Title VII originally barred any award of compensatory or punitive damages. Since amendments in 1991, it limits such damages to a combined maximum of $300,000 against the largest employers and lesser amounts against smaller employers.(8) Title VII also limits recovery of back pay to a period of two years prior to the filing of an EEOC charge. (42 U.S.C. 2000e-5(g).) The California Legislature's unwillingness to incorporate into the FEHA Title VII's stringent limitations on damages and back pay indicates the Legislature understood that some violations would continue for a long time and would require more extensive compensatory damages and longer back pay periods to make whole the victims of discrimination.

The FEHA also places a premium on informal conciliation and cooperation instead of litigation. References to "concilation," "persuasion," and "cooperation" recur throughout the Act. See, e.g., 12930 [DFEH's duties include issuing publications and research which will "promote good will and minimize or eliminate discrimination"]; 12931 [DFEH to provide assistance in resolving discrimination disputes through "conciliation and persuasion"]; 12932 [DFEH may ask Department of Rehabilitation to conciliate with employers whose policies discriminate against the disabled]; 12935, subds. (g), (j) [FEHC's duties include creating "conciliation councils," fostering "good will, cooperation and conciliation" and publishing research which will "promote good will and minimize or eliminate unlawful discrimination"]; 12963.7 [DFEH shall endeavor to eliminate unlawful employment practice by "conference, conciliation and persuasion"]; 12964 [any agreement entered into by "conference, conciliation and persuasion" shall be reduced to writing, signed, approved, and monitored for compliance]. By contrast, Title VII barely mentions these terms. (See 42 U.S.C. 2000e-5(b).)

The FEHA explicitly provides that the Act must be "construed liberally" to accomplish its purposes. ( 12993, subd. (a).) Based on that provision, this court held the California Legislature intended the FEHA statute of limitations in section 12960 to be liberally interpreted in order to promote the resolution of discrimination claims on their merits. (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479, at pp. 493-494.) Title VII has no comparable statutory command.

The FEHA expresses outright the extreme importance of the legislative goal of eliminating employment discrimination. It is the "public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination. . . ." ( 12920.) The opportunity to be free from employment discrimination is a "civil right." (Ibid.) The statute is an exercise of the "police power" to protect the "welfare, health, and peace of the people of this state." (Ibid.) Citing such expressions of public policy as well as section 12993's mandate for liberal construction, this court has held it must interpret the FEHA "broadly, not . . . restrictively." Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243. Title VII contains no comparable expression of public policy.

The Court of Appeal's interpretation of the continuing violation doctrine flies in the face of each of these unique aspects of the FEHA. It would penalize employees, like Lachi Richards, who try to improve discriminatory conditions through cooperation, education, and informal complaint. Instead, it would encourage employees to resort to litigation at the first sign of discriminatory conduct.

It would reduce the effectiveness of FEHA remedies by denying redress for events which, as the trial court found, were part of a continuing pattern of illegal conduct. Where a discrimination claim depends on the accumulation of many incidents, such as the creation of a hostile work environment or a constructive discharge, it would be far more difficult for the employee to establish liability if earlier incidents were excluded.(9)

That is precisely what would happen in the present case if the Court of Appeal's approach were adopted. The jury, which heard evidence of four years of harassment and discrimination, found CH2M Hill subjected Richards to a hostile work environment based on her disability.(10) (CT 2233.) The trial court agreed, finding CH2M Hill engaged in a "continuing pattern of harassment, neglect and a violation of [Richards'] rights in terms of accommodations." (RT 2963.) But the appellate court held Richards could not base liability on incidents outside the one-year period and then concluded that defendant's violations within that period were insufficient as a matter of law to constitute a hostile work environment. (79 Cal.App.4th, at p. 605-606, fn. 19.)

Finally, the Court of Appeal's view of the continuing violation doctrine would narrow the coverage and protections of the FEHA and deprive plaintiff of "redress [for] the adverse effects of [CH2M Hill's unlawful] practices." ( 12920.5) The appellate court has construed the FEHA restrictively -- not liberally -- in a manner that prevents discrimination claims from being resolved on their merits.



B. In Romano And Mullins, This Court Refused to Follow Federal Title VII Decisions Because They Were Not Persuasive In Light of the Language and Purpose of the FEHA and Relevant Policy Considerations.



This court's reasoning in Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479 and Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731 further demonstrates the fallacies in the Court of Appeal's proposed rule. In those two unanimous decisions by Chief Justice George, the court interpreted California statutes of limitations so as to encourage informal conciliation in the workplace and to protect employees from having to sue their employers while still employed. The court refused to follow federal Title VII decisions on the statute of limitations which did not advance those goals.

In Romano, this court was construing FEHA section 12960, the very provision at issue here, when it rejected federal Title VII precedents. The court held that the FEHA statute of limitations starts to run when an employee is actually discharged, not when she is notified that she will be fired. To carry out the FEHA's stated purpose of safeguarding an employee's "civil right" to "hold employment without discrimination" ( 12920, 12921), the FEHA limitations period should be interpreted so as to promote resolution of potentially meritorious claims on the merits, the court said. (14 Cal.4th, at pp. 493-494.)

Starting the statute of limitations before an employee is discharged would promote "premature and potentially destructive claims," the court asserted. (Id., at p. 494.) The employee would be required to institute a DFEH complaint while still employed, which would sharply reduce any chance of conciliation. As a result, the DFEH would be forced to conduct unnecessary investigations and the courts would be burdened with premature lawsuits. (Id., at pp. 494-495.) Using the date of discharge has another benefit, simplicity; it is easily determined and not subject to dispute. (Ibid.)

In Mullins, the court held that the statute of limitations in a breach of contract action based on constructive discharge runs from the date the employee resigns, not from the time the employee knows the working conditions were intolerable. The employer is not unfairly prejudiced by using the resignation date. An employer who has created or is aware of intolerable condition can prepare for a possible lawsuit before the actual resignation occurs and "should not be able to complain of delay when the employee retains employment in the hope that conditions will improve or that informal conciliation may succeed." (15 Cal.4th, at p. 740.) The date of resignation is also easier to determine than the date on which the employee learned of the intolerable work conditions.

As in Romano, the court in Mullins emphatically rejected an interpretation of the statute of limitations that would discourage informal conciliation and encourage litigation. "[W]e do not believe it is appropriate to establish a statute of limitations rule that forces employees to resort to litigation at the earliest moment. As a practical matter, a rule requiring a lawsuit to be filed as soon as intolerable conditions begin would interfere with informal conciliation in the workplace." (Id., at p. 741.) It would also prompt the employee to resign at the earliest date "to avoid the awkwardness of maintaining employment while pursuing litigation against his or her employer." (Ibid.) The statute of limitations should not force the employee to institute "premature legal proceedings," this court asserted. (Ibid.)

In Romano and Mullins, the court declined to follow federal Title VII decisions, including two by the United States Supreme Court, which had applied the statute of limitations so as to limit employees' rights. Although recognizing that California courts have relied on federal authority under Title VII in interpreting analogous provisions of the FEHA, the court made clear it would not follow federal precedents inconsistent with the language and purpose of the FEHA. (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479, at pp. 497-499; Mullins v. Rockwell Internat. Corp., supra, 15 Cal.4th 731, at pp. 742-743.) The court recently emphasized that point in Johnson v. City of Loma Linda, supra, 2000 Daily Journal D.A.R. 9417, where, declining to follow Title VII precedent, it declared: "Only when FEHA provisions are similar to those in Title VII do we look to the federal courts' interpretation of Title VII as an aid in construing the FEHA." (Id., at p. 9420, citing Romano, supra.)

Mullins and Romano demonstrate the error in the ruling below. Under the Court of Appeal's analysis, employees would be required to file DFEH charges against their employers while they were still employed and as soon as they experienced any conduct which might possibly be considered discriminatory. The result would be a flood of premature discrimination charges and later a flood of premature lawsuits by employees against their employers. Such litigation would harden the parties' positions, encourage adversarial posturing, and greatly reduce the likelihood of informal conciliation.

Mullins also teaches why CH2M Hill cannot be heard to complain about Richards' delay in filing her DFEH charge. CH2M Hill itself created the discriminatory and harassing conditions which are the subject of this litigation and to which it subjected Richards. Richards repeatedly told the company, often in writing, of her dissatisfaction and need for accommodation. (RT 473-474, 665, 667, Exhs. 18, 19, 68.) CH2M Hill was therefore in a position to prepare for possible litigation long before she filed a DFEH charge. As the trial court found, Richards' delay in filing was caused by her "superhuman" efforts to keep her job, improve her working conditions, and educate the company about the needs of the disabled. (RT 2963.) The Court of Appeal's assertion that Richards purposely stockpiled her grievances for five years so she could spring them on an unprepared and unsuspecting CH2M Hill (79 Cal.App.4th, at p. 607) conflicts with this finding by the trial court, is not supported by any evidence, and should be disregarded.(11)

The standard urged by the Court of Appeal would also be difficult to apply. A court would have to determine when an employee had "knowledge of the allegedly discriminatory nature" of her employer's prior acts. (79 Cal.App.4th, at p. 603.) In Mullins, this court held that starting the statute of limitations from the time the employee had "knowledge of intolerable conditions" was unworkable because it would be difficult to establish when that occurred. (15 Cal.4th., at p. 741.) The rule in Accardi is far simpler; it permits redress for the entire pattern of illegal conduct if any discriminatory practices continue into the limitations period. (Accardi v. Superior Court, supra, 17 Cal.App.4th 341, at p. 349.) This permits full enforcement of the FEHA and is the rule this court should endorse.



III. THE CONTINUING VIOLATION DOCTRINE, AS DEFINED IN ACCARDI, IS NECESSARY AND APPROPRIATE TO PROTECT THE RIGHTS

OF DISABLED WORKERS.



The rule proposed by the Court of Appeal would wreak particular havoc on the rights of disabled employees like Lachi Richards.

Under the FEHA and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101-12231, a disabled worker must come forward and identify her disability in order to trigger her employer's obligation to provide reasonable accommodation. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384-1385; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950; Beck v. University of Wisconsin Bd. of Regents (7th Cir. 1996) 75 F.3d 1130, 1134-1135.) Thereafter, the employee and employer must engage in an ongoing interactive dialogue, seeking to identify accommodations that will enable the worker to perform the essential functions of her job. (Spitzer, ibid.; Prilliman, ibid.; Beck, ibid.; see 29 C.F.R. 1630.2(o)(3) ["informal, interactive process" involving both employer and employee], Appendix to Part 1630, EEOC Interpretative Guidance under ADA, p. 362 ["flexible, interactive process"].)

The duty to accommodate an employee's disability is a continuing obligation that is "not exhausted by one effort." (McAlindin v. City of San Diego (9th Cir. 1999) 192 F.3d 1226, 1237, quoting Ralph v. Lucent Technologies, Inc. (1st Cir. 1998) 135 F.3d 166, 172 and Criado v. IBM Corp. (1st Cir. 1998) 145 F.3d 437, 445.) Moreover, for disabilities like multiple sclerosis and other chronic diseases, the employee's condition often changes over time, requiring ongoing discussions about a range of different accommodations. Dr. Swank, plaintiff's treating physician and an international expert on MS, testified that MS is a fluctuating disease in which a patient's symptoms may come and go, depending in large part on the level of stress and exertion that the patient sustains. (Appendix to Augment, Tab 10, Swank Depo, at 140-141, read at RT 2560; Richards, supra, 79 Cal.App.4th at p. 574, fn. 1.)

Consequently, negotiations about accommodations may last well beyond the one year period in Government Code section 12960. In the instant case, they ran from 1989, when Richards requested the transfer from Redding to Sacramento, until 1993, when she resigned still seeking the removal of barriers throughout the office. (See also Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th 1376 at pp. 1380-1382 [two years].)

For this reason, Washington State has applied the continuing violation doctrine under its state statute against discrimination, permitting employees to litigate earlier incidents of non-accommodation that were part of a pattern lasting into the limitations period. (See Martini v. Boeing Co. (1997) 88 Wash.App. 442, 945 P.2d 248, 254, aff'd on other grounds (1999) 137 Wash.2d 357, 971 P.2d 45; Goodman v. Boeing Co. (1994) 75 Wash.App. 60, 877 P.2d 703, 712-714, aff'd on other grounds (1995) 127 Wash.2d 703, 899 P.2d 1265.)

The Court of Appeal's analysis ignores the ongoing nature of the accommodation process and the variability of a chronic disease like MS. It would instead require a handicapped employee to file a DFEH complaint each time her employer failed to provide a particular accommodation within one year of the time she first requested it. If she did not, the employer could claim that, by identifying herself as disabled and requesting accommodation, the employee demonstrated awareness of her legal rights and is time-barred from pursuing that accommodation. The parties' sensitive, complex and often lengthy negotiations, which might relate to a number of possible accommodations, would be overshadowed by a steady stream of discrimination charges, DFEH investigations, and the threat of imminent court litigation. Instead of promoting the necessary flexibility and cooperation between disabled workers and their employers (Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th 935, at p. 953), the Court of Appeal's rule would produce confrontation and controversy.

The Court of Appeal's rule also disregards the special vulnerability of disabled employees. Although willing to work informally to obtain accommodation, they may delay filing a formal discrimination complaint with a state agency because they fear such a complaint would alienate their employer or even risk their jobs. Handicapped workers understand how difficult it is to get another job. Only 22 percent of working-age wheelchair users and 27.5 percent of cane, crutch, or walker users are employed. Disabled persons in the workforce are more than twice as likely as non-disabled people to be unemployed. (Kaye, Disability Watch - The Status of People With Disabilities in the United States (1998) http://www.dsc.ucsf.edu/UCSF/pub.taf?grow=16, p.1.) Moreover, people with disabilities have a special need to maintain their employer-supplied health insurance coverage because of the high cost of medical treatment.

Although we recognize that the definition of continuing violation under the FEHA is the same for disabled employees as for employees in other protected categories, the fact that the Court of Appeal's interpretation would so severely impact disabled workers simply strengthens our contention that it is erroneous.(12)



IV. THE TRIAL COURT PROPERLY APPLIED THE CONTINUING VIOLATION DOCTRINE IN THIS CASE.



Richards filed her discrimination complaint with the DFEH on January 25, 1994. (RT 2562-3.) Incidents occurring within one year of that date were clearly timely.

In three motions in limine, CH2M Hill argued that the court should exclude certain evidence as time-barred: Bob Harding's claim that Richards lied on her employment application; the company's failure to lend Richards a computer for home use; and any accommodations that had been provided before she resigned, such as the cot and approval of her transfer to the Sacramento office. (CT 1727, 1742, 1844.) The trial court heard arguments over three days before ultimately deciding to admit evidence on several earlier incidents (RT 77-86, 94-104, 108, 110-113, 124-125) and to delay a ruling on the computer issue to see the evidentiary context in which it arose (RT 153-154).

In its in limine rulings, the court recognized that, on the facts of the case, application of the continuing violation doctrine was consistent with the FEHA's remedial purposes (RT 98-99; see also RT 124-125):



"Well, I guess the issue is whether or not you can go back and magically, because of the statute of limitations, just cut off a whole course of conduct, if there is a course of conduct. And I don't think that's the intent of the statute.



"If there is a course of conduct and it is part and parcel of a milieu that has developed at the work place, then it seems to me, arguably, it is a continuing situation and the statute doesn't run if it is all connected together.



"I think that's what plaintiff is trying to do here, saying there was a consistent pattern of failing to provide her accommodation adequately or to respond appropriately to her requests for accommodation, and the whole number of all those refusals is what amounted to the hostile work environment."



The court instructed the jury that it had to find that discriminating and/or harassing conduct continued to occur after January 25, 1993 in order to find liability for conduct before that date. (RT 2878.)

The trial court revisited the continuing violation issue in ruling on defendant's post-trial motion for new trial. Familiar with all the evidence then, the court specifically found defendant's discriminatory treatment of Richards was "all a course of conduct" and also found substantial evidence that acts of harassment and/or discrimination occurred within the one-year limitations period. The court's description of the hostile work environment that CH2M Hill imposed on Richards echoed Accardi's analysis (see 17 Cal.App.4th, at p. 351):



"I don't find there was any error in permitting Bob Harding['s] comments because I think it triggered a great deal of the conduct and activity that was taken against her and lack of cooperation given to her. And I certainly find that this was a matter that continued on up until the day she left, practically.



"And so I think there is evidence to support the fact this occurred after the time period which the jury was told. And they were instructed they could not find for her unless they found some acts of harassment or discrimination following that time period, and they did so find, and I think there is substantial evidence to support that.



"I don't think, as a result, that any time-barred or stale incidents were brought in because I think it was all a course of conduct. I think you can't look at a hostile work environment without looking at what the environment really was and how it existed. And this one happened to exist over a period of time and over a period of years involving the same problems." (RT 2963-2964.)



Substantial evidence supports the trial court's and the jury's findings.(13)

Within the one-year period before January 25, 1994, CH2M Hill subjected Richards to the following ongoing discriminatory conditions: hallways were blocked by furniture and boxes (RT 592-593, 615-618, 668-669, Exhs. 19, 68); the building entry ramp was slippery and often blocked by trucks (RT 474, 545-548, 812, Exhs. 19, 68); the company had no fire escape arrangements for Richards (no ramp near her office, no fire escape plan, fire exits blocked) (RT 465-468, 592, 612-613, 619-620, 668, 1310-1312, Exhs. 19, 68); Richards could not reach the lunchroom and microwave oven (RT 576-584, 592, 668, 808-810, Exhs. 18, 19); the elevator door slammed shut on Richards (RT 585, 592, Exh. 18); Richards could not enter the supply room (RT 596-597, 668, Exh. 18); and she faced the hostile attitudes of Bob Harding and Carol Uhouse (RT 592-594, 668), among other problems.

These incidents were not isolated or unrelated. They all involved the company's hostile and/or delayed responses to Richards' requests for accommodation of her MS. Most of her requests went unheeded for years and were still pending during the one-year limitations period.(14) The few requests that defendant arguably responded to -- providing a cot, approving Richards's transfer to Sacramento, and leaving the reception area door open for half the day -- were handled with the same discriminatory animus and delay that pervaded the entire period after Richards' diagnosis of multiple sclerosis. Other accommodations, such as allowing her to use her computer to work at home, were authorized by low-level supervisors on the express condition that Richards not tell the upper-level managers who had arbitrarily rejected her request.

Moreover, the trial court specifically found the company's pattern of illegal conduct was triggered by a single source: vice president Bob Harding's widely-expressed hostility toward Richards after her MS diagnosis. (RT 2963-2964.) Harding falsely told CH2M Hill managers that Richards knew of and concealed her MS on her 1983 job application and was using her disability to take advantage of the company. (RT 711, 1206-1209; Exh. 82, p. 2.)

Further, the testimony of CH2M Hill's top managers revealed an ongoing company-wide culture of deliberate ignorance, indifference, and hostility toward obligations to the disabled. Vice president Harding testified he had no idea that the company had a duty to accommodate a handicapped worker by modifying office layout, policies, equipment, or job duties. (RT 1036-1038.) Bob Clayton, director of organizational diversity, testified that CH2M Hill never put into effect any policies to help disabled employees keep working. (RT 1217-1218.)

Carol Uhouse, the Sacramento administrative manager, did not know what "reasonable accommodation" meant or what the company's obligation was to a disabled employee. She expressed concern to other top company officials that long-term disability payments to Richards would adversely impact company profits and her own bonuses. (RT 1295-1300.) Uhouse was irritated by Richards' continuing requests for accommodation and felt Richards was taking advantage of her condition and eliciting unwarranted sympathy and favors from other employees. (Exh. 82, p. 2; Appendix to Augment, Tab 11, Uhouse Depo. at 82, read at RT 1292.)

In light of this overwhelming pattern of ongoing discrimination, the fact that Richards was occasionally told that nothing would ever change, that she was risking her job by requesting accommodations, or that the company would not accommodate her cannot preclude application of the continuing violation doctrine. (RT 398, 468, 474, 630.) The simple fact is that some things did change, Richards was not fired for requesting accommodations, and Carol Uhouse, the manager in charge of accommodation, said that she would "take care of [things] in my own way." (RT 589.) Richards, who patiently kept trying to educate the company and work things out, learned that she could achieve a few small changes if she quietly persisted with her informal efforts.

The Court of Appeal's holding, that in essence the statute of limitations begins to run as soon as an employee receives a negative response from a supervisor, runs counter to the facts of this case, this court's policy in Romano and Mullins in favor of informal conciliation in the workplace, and the obligation of a disabled employee to seek accommodation through an interactive dialogue with her employer.

The continuing violation doctrine, as interpreted in Accardi, was properly applied in this case. The jury heard no stale or time-barred evidence because, in the words of the trial court, it was "all a course of conduct."



V. THE COURT OF APPEAL ERRED IN RELYING ON FEDERAL TITLE VII LAW FOR TWO ADDITIONAL REASONS.



As the Court of Appeal recognized (79 Cal.App.4th at 586), federal case law on the continuing violation doctrine is "inconsistent and confusing" (Dumas v. Town of Mount Vernon, Ala. (5th Cir. 1980) 612 F.2d 974, 977), "vague" (Moskowitz v. Trustees of Purdue University (7th Cir. 1993) 5 F.3d 279, 281), "complicated and confusing" (Schlei & Grossman, Employment Discrimination Law (1976) p. 884) -- indeed, "the most muddled area in all of employment discrimination law." (Lindemann & Grossman, Employment Discrimination Law (3d ed. 1996) p. 1451.)

There are two additional reasons why the appellate court's reliance on federal Title VII decisions from a few federal circuits was erroneous. CH2M Hill waived reliance on federal case law by failing to raise it in the trial court. Moreover, if any federal case law is relevant, it is decisions by the Ninth Circuit, which interprets the continuing violation doctrine similarly to Accardi. A. CH2M Hill Waived Reliance on Federal

Continuing Violation Decisions by Not Raising

Them in the Trial Court.



CH2M Hill never asked the trial court to apply federal authority on the continuing violation doctrine. The only case it cited at the trial level was Accardi, a California FEHA decision. (CT 1727-1730, 1742-1746, 1844-1847, 2374-2379.) After CH2M Hill lost, however, it reversed its position and argued Accardi was not controlling and the Court of Appeal should apply the continuing violation doctrine as construed by the First, Third, Fifth, Seventh and Tenth Circuits in Title VII cases.

CH2M Hill's failure to cite the selected Title VII cases at trial constituted a waiver. A party may not make a new argument on appeal if the new theory raises factual issues which should have been resolved at the trial level. (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 391, fn. 10.) Here, defendant's new theory on appeal posed a disputed factual issue: whether plaintiff knew she was being discriminated against before the one-year period began.

The Court of Appeal improperly purported to decide that issue as a matter of law. It held Richards was "aware of her rights" before the one-year period because she had consulted a lawyer and a private agency "to determine her right to reasonable accommodation." (79 Cal.App.4th, at p. 605.) It also held Richards knew she was being discriminated against because she "was told time and time again . . . that nothing around the office would change and that [she] should accept her fate." (Ibid.)

Plaintiff's account was quite different. She testified she telephoned a lawyer to ask if her computer request was reasonable when CH2M Hill told her there was a "liability problem" about lending her a computer and that the company had to consult its attorneys. (RT 440-441.) She visited a disability rights organization to get practical information to share with the company about how wide a hallway had to be in order to accommodate her wheelchair and other technical details.(15) (RT 433-436, 442.) Although one supervisor told Richards not to expect any changes and that she was risking her job to ask for accommodations, Carol Uhouse, the person in charge of accommodation, said that she would "take care of [things] in my own way." (RT 589, 595.) Uhouse did make some requested changes, just enough to keep Richards from giving up earlier.

Thus, there was a disputed factual issue about when Richards knew or should have known she was being discriminated against. If federal law from the selected circuits were applicable, that question should have been submitted to the jury based on appropriate jury instructions. Because CH2M Hill never raised its federal law theory at trial and never requested relevant instructions, it is too late to raise that theory now.



B. The Ninth Circuit Applies the Continuing Violation Doctrine Similarly to Accardi.



If this court is going to look to any federal law, it should consider decisions by the Ninth Circuit, which applies the continuing violation doctrine under Title VII in a manner similar to Accardi.

In Sosa v. Hiraoka (9th Cir. 1990) 920 F.2d 1451, a Mexican-American academic sued his employer under Title VII for discriminating against him because of his national origin. He alleged a series of discriminatory incidents starting in 1982 but he did not file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) until 1985. The Ninth Circuit held Sosa could use the continuing violation doctrine to bring in the earlier incidents even though he was not alleging a company-wide policy but only a series of "plausibly related" acts of discrimination directed at him because of his identification as a Mexican American. (At p. 1456.) The various acts included: denial of leave and expenses for an academic conference, a burdensome evaluation system directed only at Sosa, the veto of his nomination to be department chair, salary discrimination, the solicitation of negative statements from students, and the issuance of a formal notice of unprofessional conduct based on the student statements.

In Anderson v. Reno, supra, 190 F.3d 930, the Ninth Circuit, reversing summary judgment, applied the continuing violation doctrine to admit evidence of eight years of sexual harassment of a female FBI agent. The plaintiff could prevail under the continuing violation theory "by presenting evidence that the FBI engaged in a 'systematic policy of discrimination' or by presenting evidence of a series of related discriminatory acts directed at her by FBI personnel." (At p. 936, emphasis added.) When the earlier events are viewed in the "context of the totality of [the plaintiff's] relationship with the FBI," it is apparent they were "part of a pattern that started years ago and that had continued to the time she first made a timely complaint, and even beyond," the court declared. (At p. 937.)

Anderson, in turn, relied on Draper v. Coeur Rochester, Inc., supra, 147 F.3d 1104, in which the appellate court reversed summary judgment, holding that the plaintiff could use the continuing violation theory by demonstrating that her sexual harassment claims were founded on a "pattern or practice of employer conduct that continued into the relevant period of limitations." (At p. 107.) Although the Court of Appeal opinion claimed Draper was "consistent with [its] analysis" (79 Cal.App.4th, at p. 598), Draper is not. Before the start of the limitations period, the plaintiff in Draper twice formally complained to management about the harassment and unequal treatment she was experiencing. Under the new rule proposed by the Court of Appeal in this case, the continuing violation doctrine would have been unavailable because the employee in Draper was clearly aware of her rights.

* * * *

In sum, the FEHA is very different from Title VII and its distinctive features require a broad application of the continuing violation doctrine. Such an interpretation advances the compelling public policy interest in favor of informal conciliation of workplace disputes and is necessary to enforce the Act effectively. Accordingly, this court should do here what it did in Romano and Mullins -- disregard federal authorities which are not persuasive "in light of the language and purpose of the FEHA." (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479, at p. 499.)





PART II



The issue stated in CH2M Hill's answer to the petition for review was:



Does an employer satisfy its reasonable accommodation obligation under the FEHA by granting numerous accommodations (rather than the employee's most preferred accommodations) so she is enabled to perform the essential functions of her job?



We do not take issue with this abstract legal principle but it is not the question presented by this case. Consistent with Rule 28(e)(2)'s requirement that an issue be stated in the terms and circumstances of the case without being argumentative, the issue should be:



Where a jury finds that an employer failed to provide reasonable accommodations, based on substantial evidence that the employer did not make the office accessible to an employee in a wheelchair, is that jury verdict subject to reversal based on evidence that the employer provided other accommodations?



________________________



SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S

FINDING THAT CH2M HILL FAILED TO PROVIDE

REASONABLE ACCOMMODATION WHERE,

ALTHOUGH DEFENDANT MADE SOME CHANGES, IT

FAILED TO MAKE THE OFFICE ACCESSIBLE TO

RICHARDS IN HER WHEELCHAIR .



By a vote of 11-1, the jury found CH2M Hill failed to provide reasonable accommodations to Richards. (CT 2234, RT 2924-2925.) As will be demonstrated, substantial evidence supports that finding.

CH2M Hill apparently contends, however, that because it provided certain accommodations and Richards was able to perform the essential functions of her job, it satisfied its duty of reasonable accommodation as a matter of law. Defendant's argument ignores the sweeping scope of the duty to provide reasonable and effective accommodation and the principle that the reasonableness of an accommodation is an issue for the jury, subject to the substantial evidence standard of review.



A. The Duty to Provide Reasonable Accommodation is Broad and Flexible and Requires a Fact-Intensive Analysis.



The FEHA requires an employer to make reasonable accommodation for an employee's known disability, unless the employer can demonstrate that doing so would impose an "undue hardship." ( 12940, subd. (k); Cal. Code Regs., tit. 2, 7293.9.) The statute and regulations provide a broad, open-ended definition of "reasonable accommodation." Under Government Code section 12926, subdivision (n), "[r]easonable accommodation may include either of the following:



"(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.



"(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." ( 12926, subd. (n).)



The implementing regulations provide that reasonable accommodation "may, but does not necessarily, include, nor is it limited to, such measures as" making facilities "readily accessible to and usable by individuals with disabilities" and various forms of job restructuring. (Cal. Code Regs., tit. 2, 7293.9, subd. (a).)

Recent FEHA cases emphasize that the "hallmark of [the] FEHA is the flexibility it requires of employers to work with its disabled employees to accommodate their needs." (Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th 935, at p. 953, quoting Sargent v. Litton Systems, Inc. (N.D. Cal. 1994) 841 F.Supp. 956, 962.)

In Prilliman, the defendant airline, upon discovering that two pilots had AIDS, grounded them and placed them on paid disability leave. One pilot was deemed totally disabled even by his own doctor but Prilliman, the second pilot, was functioning well when grounded. Neither pilot requested an alternative job with United. In the pilots' FEHA disability discrimination action, the trial court granted summary judgment to United on the ground the company had adequately accommodated them.

The Court of Appeal reversed as to Prilliman. "Ordinarily, the reasonableness of an accommodation is an issue for the jury," the court stated (id., at p. 954) and in this case there was a triable issue about whether United could have found a different job for Prilliman. The court rejected United's argument that placing Prilliman on paid disability leave constituted a reasonable accommodation which necessarily satisfied the airline's duty since Prilliman had not requested another accommodation. An employer who knows of an employee's disability has an affirmative duty to inform the employee about other suitable job opportunities with the employer and to determine if the employee is interested in and qualified for those positions, the court held.

"The law and its regulations make clear that the term 'reasonable accommodation' is to be interpreted flexibly. The regulations provide a non-exhaustive list of accommodations that includes not only making premises accessible but also '[j]ob restructuring, assignment or transfer, [and] part time or modified work schedules . . . .' The law and the regulations clearly contemplate not only that employers remove obstacles that are in the way of the progress of the disabled, but that they actively re-structure their way of doing business in order to accommodate the needs of their disabled employees. . . . [T]o read into the law a hard and fast rule that its effects stop at some artificial boundary would be to ignore the broad sweep of the law." (Id., at p. 948 [emphasis added] quoting Sargent v. Litton Systems, Inc., supra, 841 F.Supp. 956, at p. 961.)



The recent decision in Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th 1376 demonstrates that restructuring an employee's job and providing medical leaves will not necessarily satisfy an employer's duty of reasonable accommodation. The plaintiff, a store manager, suffered from a degenerative disc disease. Her job required her to stand constantly, which aggravated her chronic pain. The employer restructured the plaintiff's job by permitting her to sit instead of stand, take 15-20 minute breaks throughout the day, and leave early for physical therapy appointments. She was also given two medical leaves of absence, lasting several months each. Because these changes were still insufficient to accommodate her disability, the plaintiff asked for reassignment to a more sedentary position. The company did not transfer her but told her to apply for a management trainer position and to "continually check the job hotline." (At p. 1388.)

In the employee's FEHA disability discrimination action, the trial court granted summary judgment to the employer, holding that restructuring the plaintiff's job, giving her medical leaves, and encouraging her to apply for a different job constituted reasonable accommodation as a matter of law. The Court of Appeal reversed, finding triable disputes about whether the job restructuring adequately accommodated the employee's disability and whether suitable positions were available to which the plaintiff could have been assigned. The trial court's conclusion that the employer adequately accommodated the plaintiff's desire for a different job by suggesting she apply for another position and continually check the job hotline "reflects a misunderstanding of the affirmative nature of the reasonable accommodation requirement" and "is untenable as a matter of law," the appellate court held. (At pp. 1388, 1386.)

County of Fresno v. Fair Employment & Housing Com. (1991) 226 Cal.App.3d 1541, makes clear that, for an accommodation to be reasonable, it must also be effective. In that case, the DFEH issued administrative accusations on behalf of two county employees with severe respiratory problems, charging the county had forced them to work in smoke-filled, poorly ventilated rooms without reasonable accommodation. The county argued it had made "reasonable efforts" to accommodate them by providing air filtration machines, keeping windows open, isolating the desks of the complaining employees and later placing them in a private office, encouraging smokers not to smoke around the complainants, allowing one complainant to take an unpaid leave of absence until a new anti-smoking ordinance went into effect, and forming committees to study workplace smoking.

The Fair Employment and Housing Commission (FEHC) found the county had not reasonably accommodated the complainants, but a superior court overturned the FEHC's order, finding the county had made "good faith and reasonable efforts" at accommodation.

The Court of Appeal reversed, holding that the FEHC properly found the county's accommodation efforts were not reasonable because they simply did not work. The environment in the complainants' office was like a "smoke-filled bar in which everyone 'gagged together.'" (226 Cal.App.3d, at p. 1555.) An employer's good faith or lack of it is not determinative in assessing whether it provided reasonable accommodation to a disabled employee, the court declared. "An employer cannot hide behind its asserted good faith in order to avoid responsibility for discriminatory policies and working conditions."(16) (At p. 1554, fn. 6.)

Federal cases interpreting the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., ("ADA"), and Title V of the Rehabilitation Act of 1973, 29 U.S.C. 791 et seq., also hold that whether a particular accommodation is reasonable and whether it satisfies an employer's duty of accommodation are factual issues that must be resolved at trial through a individualized, fact-specific inquiry. (Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, 1247. See, e.g., Schmidt v. Safeway, Inc. (D. Or. 1994) 864 F.Supp. 991, 997 [reasonableness of accommodation ordinarily a jury issue]; Ralph v. Lucent Technologies, Inc., supra, 135 F.3d 166, 171-172 [provision of 52 weeks' leave with pay, change of work assignment and supervisor does not end duty to accommodate; court affirms preliminary injunction ordering plaintiff's reinstatement for "provisional" period]; Higgins v. New Balance Athletic Shoe, Inc. (1st Cir. 1999) 194 F.3d 252, 265 [evidence of intent to discriminate not required in failure-to-accommodate case; provision of one accommodation may not satisfy employer's duty; summary judgment reversed]; Lyons v. Legal Aid Soc. (2d Cir. 1995) 68 F.3d 1512 [duty of reasonable accommodation may require employer to provide paid parking space for crippled attorney although it had already given her a four-year medical leave; summary judgment reversed].)

Resort to federal law on issues of reasonable accommodation is appropriate because the definition of "reasonable accommodation" in the FEHA and state regulations is virtually identical to language in the ADA and regulations implementing that statute. (Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th 1376, at p. 1384; compare Gov. Code 12926, subd. (n) and Cal. Code Regs., tit. 2, 7293.9, subd. (a) with 42 U.S.C. 12111(9) and 29 C.F.R. 1630.2(o)(2) (1999).) The FEHA disability provisions were modeled on the ADA and the Rehabilitation Act. (Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th 1376, at p. 1384; Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th 935, at p. 948.)

In its manual interpreting the ADA, the EEOC explains that reasonable accommodation goes beyond assisting a disabled employee to perform the essential functions of a job. It also includes accommodations necessary to enable the employee to "enjoy benefits and privileges of employment equal to those enjoyed by similarly situated nondisabled employees." (EEOC: Technical Assistance on Title I of ADA, BNA FEP, 405:6981, 405:7000.) Employees with disabilities must have "equal access to lunchrooms, employee lounges, rest rooms . . . and other employer-provided or sponsored services" and a "reasonable accommodation must be an effective accommodation." (Ibid.)

According to the EEOC, if an employer provides an employee lunchroom with food and beverages on the second floor of a building without an elevator and it would be an undue hardship to install an elevator for an employee who uses a wheelchair, the employer must provide a comparable facility on the first floor. Although the first floor facility need not be exactly the same as that on the second floor, it must provide food, beverages and space for the disabled employee to eat with co-workers. It would not be reasonable accommodation merely to provide a place for the disabled employee to eat by himself or to provide a separate facility for the disabled worker. (Ibid. See also EEOC Interpretative Guidance, 29 C.F.R. 1630 Appendix (1999).)



B. Substantial Evidence Supports the Jury's Verdict That CH2M Hill Failed to Provide Reasonable Accommodation to Richards.



Grudgingly, CH2M Hill gave Richards certain accommodations. It permitted a medical leave of absence, allowed her to work part-time, and provided medical insurance on a full-time basis. At the same time, the company threatened Richards with loss of her health insurance and told her repeatedly she should simply quit her job and go live on disability pay. (RT 391-394, 439, 443-445.) Moreover, the company willingly provided part-time work and leaves of absence to non-disabled employees. Bob Harding let Richards work part-time while she trained for the Olympics and promised her a leave of absence if she qualified for the Olympics. (RT 305-6.) Accordingly, it had a duty to make similar accommodations for employees who became disabled. (Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th 935, at p. 951.)

There was substantial evidence supporting the jury's finding that CH2M Hill failed to reasonably accommodate Richards' disability. Most of the denied or delayed accommodations involved that most fundamental requirement: access to the workplace. Again and again, CH2M Hill failed to meet its statutory obligation to make facilities "readily accessible to, and usable by," Lachi Richards in her wheelchair. (Gov. Code 12926, subd. (m)(1).) The jury could reasonably find that:

CH2M Hill crowded the hallway to the restroom with boxes, some of which fell on Richards as she passed by. Other hallways were so blocked that she could not turn around, pass another person, or avoid scraping her knuckles. Bookcases in the hallway prevented her from entering the office of an employee she was supposed to supervise.

CH2M Hill refused to modify the elevator door lip and/or timing, causing the door to slam shut on Richards as she wheeled into the elevator.

CH2M Hill allowed tables, bins and vending machines to block Richards' access to the lunchroom, particularly the microwave oven where she had to heat her medically-approved lunch.

CH2M Hill placed equipment in the way of Richards' access into the library. Later the library was moved to a hallway which was the only fire exit from that part of the building and was so narrow Richards could not make a U-turn in case of fire.

CH2M Hill refused to provide an effective plan for Richards to escape from the office upstairs during a fire. The fire exit nearest Richards' office had no ramp for her wheelchair.

CH2M Hill did not provide effective access to the supply room.

CH2M Hill refused to provide a non-skid surface on the wheelchair ramp into the building, causing Richards' wheelchair to skid backwards when the ramp was wet. Adding nonskid tape would have cost only $30.

CH2M Hill took nearly a year to approve Richards' application to transfer from the Redding office, which was not wheelchair-accessible, to Sacramento, which was. Approval of transfer applications generally took 60-75 days.

CH2M Hill refused to provide a computer for home usage, harassed Richards' efforts to obtain a computer from other organizations, and refused to allow her to use her own computer on company business at home (until her supervisors granted her covert permission).

CH2M Hill delayed in obtaining a cot, required Richards to pay for bedding, and located the cot outside of CH2M Hill offices, where it was difficult to use. The company provided actual beds to non-handicapped workers in other offices and did not demand employee contributions for bedding.

CH2M Hill relocated Richard's cot without notice, failed to tell her where it was, and ultimately placed it in an office where Richards could not close the office door. Since Uhouse had forbidden Richards to lie down in locations where she could be seen, she could not use the cot in that office.

The jury was also entitled to consider the remarkable evidence that, by the time of trial -- four years after Richards left CH2M Hill -- the company's top managers still had no idea what "reasonable accommodation" was and frankly admitted the company had no policy to accommodate the disabled. Bob Clayton, CH2M Hill's director of organizational diversity and a senior human resource consultant, testified that in 1989 CH2M Hill had no policies to help disabled employees continue working and no such policies were ever put in place! (RT 1203-1204, 1217-1218.) Carol Uhouse, the Sacramento administrative manager, testified that from 1989-1993 she did not know what "reasonable accommodation" meant or what the company's legal obligation was to a disabled employee -- and by the time of trial she had never bothered to ask anybody. (RT 1295-1298.) She speculated that "reasonable accommodation" meant "how a courteous person would treat another person." (RT 1297.)

Bob Harding, CH2M Hill vice president and southwest district regional manager, testified he had no knowledge either in 1989-1990 or at the time of trial that CH2M Hill had a duty to accommodate a disabled employee by modifying its office layout, its policies, or job duties or to provide equipment to make it easier for a disabled employee to work. (RT 1036-1038.) Even Mary Wilson, who, as western operations human resources manager, ordered disability discrimination training for CH2M Hill employees because of the treatment Richards received, testified she did not know if the Sacramento employees ever received such training. (RT 1848, 1878.) The jury could reasonably conclude that CH2M Hill did not give a damn about reasonable accommodation!

The jury could have found that CH2M Hill's failure to provide basic accommodations made Richards' job a constant struggle. She did not enjoy "benefits and privileges of employment equal to those enjoyed by . . . nondisabled employees." (EEOC:Technical Assistance, supra.) Richards had to struggle every day to wheel through the hallways, to get a book from the library, to get supplies from the supply room, to warm her lunch in the microwave oven, to meet with the employee she was supervising, and to lie down for a rest. She was able to succeed -- in spite of CH2M Hill and only at great personal cost to her health and emotional well-being.(17)

The trial court put it well in denying CH2M Hill's motion for new trial. There was a "continuing pattern of harassment, neglect and a violation of [Richards'] rights in terms of accommodations, even reasonable accommodations," the court declared. (RT 2963.)

"I think that what this trial showed me is the superhuman efforts she made, almost, to keep this job and to educate the company as to how they ought to treat disabled employees. I think your own employees came to that same conclusion. (Ibid.)



As the trial court reasonably found, there was "ample evidence" to support the jury's verdict that CH2M Hill failed to make reasonable accommodation for Richards' disability. (RT 2963.)

PART III



The issue stated in CH2M Hill's answer to the petition for review was:



Are back pay and front pay damages available to an employee when she quits her employment and she does not claim (and there is no finding of) constructive discharge?





Consistent with Rule 28, subd. (e)(2), we believe this issue should be:



Are back pay and front pay damages available to an employee suing under the Fair Employment and Housing Act (FEHA) who is found to have quit her employment and suffered wage losses because of discrimination and/or harassment, when no issue of constructive discharge was submitted to the jury?



_________________________________





THE FEHA PERMITS AN EMPLOYEE WHO RESIGNS

TO RECOVER WAGES LOST AS A RESULT OF AN

EMPLOYER'S DISCRIMINATION.



Plaintiff's amended complaint alleged causes of action for, inter alia, disability discrimination and harassment under the FEHA, constructive wrongful discharge in violation of public policy, and intentional and negligent infliction of emotional distress. (CT 482, 493, 495.) At the end of her case in chief, plaintiff's counsel announced she would proceed only on her FEHA claims and not on her common law claims. (RT 2402-2403.)

The jury was instructed that plaintiff had to prove as an essential element of her claims that she sustained damages "as a direct result of defendants' discrimination" (RT 2870-2871) or "as a result of the unwelcome harassment." (RT 2876, emphasis added.) The jury was also instructed that economic and noneconomic damages must be "caused by the act or omission upon which you base your findings of liability of the defendant, if you so find." (RT 2878, emphasis added.)

Consistent with the instructions and based on substantial evidence that Richards resigned because of CH2M Hill's hostile working environment and refusal to accommodate her, the jury specifically found in its special verdict that Richards suffered economic damage(18) "as a result of disability harassment" and "as a result of disability discrimination." (CT 2233, 2235, emphasis added.) The jury awarded Richards $476,000 "as the total amount of past and future economic damages suffered by plaintiff as a result of defendant's conduct" as well as $925,000 for her severe emotional distress. (CT 2236.) The trial court, in denying CH2M Hill's post-trial motions, found "evidence sufficient to support the award of economic damages." (RT 2962.)

This case thus raises the question whether an employee suing under the FEHA can recover lost wages if she leaves her job and suffers wage losses because of the employer's discriminatory treatment but does not proceed on a claim for constructive discharge. As will be demonstrated, the answer is yes.



A. Civil Code Section 3333, Which Provides that

Damages Should Compensate For "All The Detriment Proximately Caused" by a Defendant's Breach,

Applies in FEHA Actions and Permits an Employee

Who Resigns Because of Discrimination

to Recover Lost Wages.



Civil Code section 3333 furnishes the answer to this question. It provides that in a noncontractual action, a plaintiff is entitled to "the amount which will compensate for all the detriment proximately caused thereby," whether or not it could have been anticipated.(19) Section 3333's applicability in FEHA actions is resolved by this court's holding in Commodore Home Systems v. Superior Court, supra, 32 Cal.3d 211, at page 221 that "all relief generally available in noncontractual actions" may be obtained in a civil action under the FEHA. Thus, under section 3333's unequivocal terms, an employee who resigns and loses pay because of discrimination is entitled to recover lost wages under the FEHA without pursuing a constructive discharge claim.

The Court of Appeal in Cloud v. Casey, supra, 76 Cal.App.4th 895 recently reached this very conclusion. The plaintiff in Cloud was an accountant who had worked for the defendant for 13 years. The company repeatedly passed her over for promotion because of her gender. After being denied a promotion to controller, she resigned in frustration and sued for sex discrimination under the FEHA. The jury returned a verdict for the plaintiff but the trial court refused to permit an award of post-resignation economic damages because the plaintiff had resigned and was not constructively discharged.

The appellate court recognized there had been no constructive discharge but held the plaintiff could nevertheless recover lost wages under the FEHA. It specifically refused to follow federal Title VII decisions which deny lost wages to an employee who quits without a constructive discharge because that would be incompatible with the FEHA's important goal of providing "effective remedies" to make discrimination victims whole. (Gov. Code 12920, 12920.5.) "Blind obedience to the limitation on postresignation damages developed in the federal courts does not serve that purpose," the Cloud decision stated. (76 Cal.App.4th, at p. 909.)

Cloud further held that in light of this court's conclusion in Commodore Home Systems that all relief available in noncontractual actions may be obtained in an FEHA action, the available damages in an FEHA case are defined by Civil Code section 3333. Cloud therefore concluded that an employee who quits because of discrimination is entitled to recover lost wages caused by the illegal treatment she suffered, regardless of whether she proves a constructive discharge.

This case presents an even more compelling situation for allowing recovery of lost wages. The plaintiff in Cloud faced discrimination only periodically, when she sought a promotion. She was not made miserable in her day-to-day work. By contrast, Lachi Richards was subjected to discrimination and harassment every day as she tried to do her job at CH2M Hill. She was constantly made to feel like a "reject off in the black hole." (RT 682.) As the FEHA's make-whole principles permit Cloud to recover lost wages after she resigned, they certainly should provide Richards that same compensation.

Awarding lost wages when an employer's discriminatory practices cause an employee to resign will also provide a strong incentive for employers to eradicate unlawful workplace conditions quickly -- before the employee quits. If the discrimination continues and the employee eventually leaves, allowing her to recover lost wages is necessary to make her whole. However, if an employee cannot recover lost wages unless the conditions were so intolerable as to constitute a constructive discharge, the employer will have less motivation to end discrimination. It need only keep its discrimination within "tolerable" bounds.(20)

It is also significant that in Commodore Home Systems, supra, 32 Cal.3d 211 this court rejected Title VII decisions when it held that a plaintiff under the FEHA can recover punitive damages. The court reasoned that Title VII was different from the FEHA because federal law expressly described the remedies that courts may assess. As a result, Title VII impliedly precluded other remedies, such as punitive damages. (32 Cal.3d, at p. 217; see 42 U.S.C. 2000e-5(g)(1).) The FEHA does not specify the remedies available in a court action. (See 12965, subd. (b).) Accordingly, this court applied Civil Code section 3294, which provides that punitive damages are available in all noncontractual civil actions "unless otherwise limited." This approach was also necessary to implement the fundamental public policy expressed in Government Code section 12920, which includes the goal of providing "effective remedies." "To limit the damages available in a lawsuit [under the FEHA] might substantially deter the pursuit of meritorious claims," the court observed. (32 Cal.3d, at pp. 220-221.)

In sum, the explicit language of Civil Code section 3333, coupled with the FEHA's forceful expression of public policy and its mandate for liberal interpretation, compel the conclusion that in an FEHA action a resigning employee may recover wage losses caused by discrimination or harassment, without proving a constructive discharge. Only this result will make whole the victim of discrimination and motivate the perpetrator to end illegal practices quickly.

In the present case, the jury was properly instructed and found, consistent with Civil Code section 3333, that plaintiff suffered economic damages in the form of lost wages and benefits "as a result of disability harassment" and "as a result of disability discrimination." The jury awarded her $476,000 as the "total amount of past and future economic damages suffered by plaintiff as a result of defendant's conduct." (CT 2233, 2235, 2236.) The trial court found substantial evidence to support that verdict. (RT 2962.) This court should affirm the economic damages award to carry out the intent of the FEHA.(21)



B. The Washington Supreme Court Also Allows Recovery of Lost Wages by an Employee Who Quits Without a Constructive Discharge.



In Martini v. Boeing Co. (Wash. 1999) 137 Wash.2d 357, 971 P.2d 45, the Washington Supreme Court has allowed recovery of back and front pay in circumstances nearly identical to to the present case -- a disabled employee who resigned after being refused reasonable accommodations. The court held lost wages can be awarded under the Washington law against discrimination as long as the economic damages are caused by the employer's wrongful act. The plaintiff does not have to prove a constructive discharge.

The Washington Supreme Court based its decision on provisions of the Washington discrimination statute similar to those in the FEHA. Both statutes provide for full compensatory damages. (Martini, supra, 971 P.2d, at pp. 50-51; Civ. Code, 3333.) Both statutes encompass fundamental public policy and both are to be liberally construed to accomplish their purposes. (Martini, supra, 971 P.2d, at p. 49; Gov. Code, 12920, 12921, 12993.)

By contrast, Title VII does not expressly mandate liberal interpretation and treats back pay as an equitable remedy available only where reinstatement is appropriate.(22) Although Title VII was amended in 1991 to allow for limited compensatory and punitive damages in addition to available equitable remedies (see footnote 7, supra), compensatory damages were defined so as to exclude an award of back pay, leaving back pay as an equitable remedy. (42 U.S.C. 1981a(b)(2).)

Thus, the remedies section of Title VII is "radically different" from the remedies section of Washington's law against discrimination, the Washington high court declared. (Martini, supra, 971 P.2d, at p. 54; see Passantino v. Johnson & Johnson Consumer Products (9th Cir. 2000) 207 F.3d 599, 614 [Washington discrimination law remedies are "more robust" than those authorized under Title VII, citing Martini].) Consequently, Title VII cases barring an award of back pay absent a finding of constructive discharge are "clearly distinguishable" and are not persuasive authority under the Washington statute. (Martini, supra, 971 P.2d, at p. 54. See, e.g., Rodgers v. Western-Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 677 [back pay is equitable remedy recoverable only where there is actual or constructive discharge]; Brooms v. Regal Tube Co. (7th Cir. 1989) 881 F.2d 412, 423 [same].)

The Martini court also rejected the policy argument cited in many Title VII decisions as the justification for denying back pay to an employee who resigns without being constructively discharged -- that such a rule encourages the employee to try to work problems out within the existing job setting. (See, e.g., Thorne v. City of El Segundo (9th Cir. 1986) 802 F.2d 1131, 1134.) That argument does not take into account the burden which litigation places upon plaintiffs and the inherent disincentive that employees have to quit and litigate rather than stay on the job, according to the Washington Supreme Court. Employees who quit their jobs potentially face long and difficult battles to obtain damages for discrimination. Even if they can prove they were discriminated against and that discrimination caused them to lose pay, it could take years before they may recover damages. Martini left Boeing in 1990 and his case was still in litigation eight years later.(23) "A rational employee is unlikely to decide that quitting and suing is easier than attempting to resolve a dispute in the workplace," the Martini court declared. (Martini, supra, 971 P.2d, at p. 55.)

For employers, however, the likelihood of having to pay lost wages to an employee who quits because of discrimination or harassment will provide a serious economic incentive to end discriminatory practices in the workplace. This is fair and appropriate for it is the employer, after all, who has the power to halt the illegal practices.

The Washington Supreme Court's analysis in Martini fits the California FEHA like a glove. This court should apply its reasoning to affirm the economic damage award in this case.



C. Allowing Recovery of Lost Wages Without a Finding

of Constructive Discharge Deters Discrimination

and Makes Whole Its Victims.



A recent law review article presents additional policy arguments for permitting employees who quit because of discrimination to recover lost earnings. (Kende, Deconstructing Constructive Discharge: The Misapplication of Constructive Discharge Standards in Employment Discrimination Remedies (1995) 71 Notre Dame L. Rev. 39.)

Conditioning recovery of lost wages on proof of a constructive discharge undercuts the deterrence effect of discrimination laws, Professor Kende contends, because employers will have little incentive to rectify or avoid discrimination, knowing that an employee who quits cannot get lost wages. Employers are less likely to discriminate when the aggregate cost of discriminating increases. Requiring proof of a constructive discharge cuts off the damages that discrimination victims who resign otherwise could continue recovering. Consequently, it reduces the overall cost of discrimination for employers and reduces the deterrent effect of employment discrimination statutes.

The constructive discharge requirement also has a "more subtle and insidious effect" on how discriminatory employers treat particular injured employees who refuse to resign. (Id., at 58.) It decreases employer incentives to avoid or rectify discrimination because the employer knows the employee may wear down and resign because of the continuing discrimination, as Richards did here.(24) The constructive discharge rule may even lead employers to engage in worse conduct in the hopes of obtaining the employees' resignation and cutting off their right to recovery. The employer then no longer needs to deal with a disgruntled employee who may sue or has sued the company. "These kinds of employer actions are the antithesis of Title VII's deterrent purposes, and yet they are facilitated by the constructive discharge rule." (Id., at p. 58.)

Denying back pay in the absence of a constructive discharge permits employers to accomplish the effect of an actual discharge without risking the same ongoing liability. The employer who illegally fires an employee continues paying damages until the worker finds equivalent employment. By contrast, the company that subtly forces an employee to resign also gets rid of the employee but avoids the post-resignation damages.

Perhaps "most perverse" (id., at p. 59), the constructive discharge requirement actually forces workers to experience more discrimination by requiring them to stay in their discriminatory jobs in order to remain eligible for back pay. Professor Kende quotes a dissenting justice on the Wisconsin Supreme Court:



"The constructive discharge doctrine ignores the reality of discrimination. Discrimination is a degrading, humiliating, debilitating experience for its victims. Requiring a victim to stay in that setting or lose what they are entitled to is . . . outrageous . . . ." (Marten Transp., Ltd. v. Department of Indus., Labor & Human Relations (Wis. 1993) 176 Wis.2d 1012, 501 N.W.2d 391, 401.)



The justice compared the effect of the doctrine to requiring incest victims to stay with their parents so the parents could cure their abusive behavior or requiring malpractice victims to stay with their negligent doctors or negligent lawyers to allow the professionals to improve their deficient skills. (501 N.W.2d, at p. 400.)

Conditioning economic damages on proof of constructive discharge also denies victims of discrimination the right to be made whole, Professor Kende argues. It forces employees to either stay and accept additional discrimination or resign and risk cutting of their right to back pay and reinstatement. Employees who quit to avoid discrimination are left jobless and without their lost earnings, even though their joblessness is causally related to their employer's discriminatory conduct. Such a result is antithetical to the make-whole purpose of discrimination laws. (Kende, supra, at p. 60.)

The Kende article provides persuasive policy reasons for this court to hold that an employee who resigns to avoid discrimination may recover resultant lost wages without a finding that she was constructively discharged. Consequently, the jury's award of economic damages to plaintiff should be affirmed.

CONCLUSION



Lachi Richards did just what we would like any victim of disability discrimination to do. She patiently tried to educate herself and her employer about the accommodations she needed to be able to keep working with multiple sclerosis. Orally and in writing, she repeatedly told CH2M Hill management about the obstacles she was facing and she proposed practical solutions. "This is an educational process for both of us," she wrote in a memo to management early on. "I look forward to working with you and in resolving any conflict in this difficult situation." (Exh. 15, pp. 6-7.) As the trial court recognized, Richards made "superhuman efforts . . . to keep this job and to educate the company as to how they ought to treat disabled employees." (RT 2963.)

The FEHA was intended to protect and provide redress to employees like Lachi Richards. In this case, the court has the opportunity to interpret the Act so to carry out its fundamental policy commitments to Richards and to other workers. To do so, the court should adopt the continuing violation doctrine according to Accardi. It should hold that whether an employer has provided reasonable accommodation is generally a factual issue subject to substantial evidence review. And it should rule that an employee who resigns and suffers wage losses because of discrimination can recover those damages without proving a constructive discharge.

By doing so, the court will enforce the promises our Legislature made -- to employees, to employers, and to the people of the State of California -- when it enacted this landmark legislation. The court will also send a message to employees like Lachi Richards, who work for change in the workplace through cooperation and education, that they do not need to get "used to being treated bad" and that they are "still valued as person[s]" in the eyes of the law. (RT 683.)



Respectfully submitted,

LAW OFFICES OF ELLEN LAKE

CHRISTOPHER H. WHELAN, INC.

JOSEPH POSNER, INC.











By:______________________________

Ellen Lake











By:_____________________________

Christopher H. Whelan











By:____________________________

Joseph Posner

Counsel for Respondent

Lachi D. Richards

Dated: September 11, 2000

1. 1 The second and third issues are taken verbatim from CH2M Hill's answer to the petition for review. (Cal. Rules of Court, rule 29.3(c).) We agree that the court should decide these two issues but do not agree with the way defendant has phrased them. In Parts II and III, where we discuss these issues, we have restated them so they are not argumentative and are stated in the terms and circumstances of this case. (Id., rule 28(e)(2).)

2. 2 Unless otherwise indicated, all statutory references are to the Government Code.

3. 3 Richards continued to get good reviews even after she developed MS and was in a wheelchair. Her 1990 evaluation stated: "She is doing a stand-up job at working within a set of physical constraints that would crush most people. She is a valuable asset to the firm and has my admiration and respect." (Exh. 60.) According to a 1992 evaluation, Richards' "work habits, organization, attention to detail, and commitment to completion of project are exceptional." (Exh. 65.) Another 1992 review called Richards "a hard worker and dedicated to CH2M Hill." (Exh. 66.)

4. 4 Harding's admission that he told other managers that Richards was taking advantage of CH2M Hill was documented in an investigation report prepared by the company's director of diversity after Richards left the company in 1993. (Exh. 82, p. 2.)

5. The computer incident occurred while Richards' application to transfer to Sacramento was pending. Because of his displeasure with her "disloyalty," district human resources manager Bob Clayton told Richards that she could deal only with the Redding office because her transfer had not been approved. Clayton said he wanted her to quit as an employee and come back as independent contractor so her disability would not create any liability problems for the company. When Richards sought to discuss the computer issue with Redding managers, they gave her a laundry-list of reasons why it would be hard to accommodate her. Richards calmly proposed a solution to each perceived problem. (RT 372-385, 391-399.)

6. 6 Government Code section 12960 provides in pertinent part:



No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows: (a) for not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence, or (b) for not to exceed one year following a rebutted presumption of the identity of the person's employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.



Neither subdivision (a) nor subdivision (b) is involved in the present case.

7. 7 The California Legislature had the opportunity to overrule Accardi when it amended section 12960 in 1999, but made no attempt to do so. This reflects the Legislature's approval of Accardi's interpretation of the continuing violation doctrine. "Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it." (In re Michael G. (1988) 44 Cal.3d 283, 292; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734.) By contrast, in 1999 the Legislature did amend the FEHA to overrule another judicial decision, Marks v. Loral Corp. (1997) 57 Cal.App.4th 30, which had interpreted another part of the FEHA. (See 12941.1.)

8. 8 Until 1991, Title VII did not permit the award of any compensatory or punitive damages. Under 1991 amendments to Title VII, limited compensatory and punitive damages may be awarded. For employers with more than 500 employees, compensatory and punitive damages together are capped at a maximum of $300,000. For smaller employers, the cap ranges from $50,000 to $200,000. (42 U.S.C. 1981a(b)(3).)

9. 9 See Anderson v. Reno (9th Cir. 1999) 190 F.3d 930, 934 [district court found no hostile environment after excluding earlier incidents; 9th Circuit reversed, finding continuing violation]; Draper v. Coeur Rochester, Inc. (9th Cir. 1998) 147 F.3d 1104, 1110 [same as to hostile work environment and constructive discharge, based on continuing violation theory].

10. 10 The jury found on the special verdict that Richards was "subjected to harassment by defendant for which [her] disability was a motivating factor." (CT 2233.) The court had instructed the jury that, to prove disability harassment, plaintiff had to show she was subjected to "unwelcome conduct [that was] based on her disability and was sufficiently severe or pervasive to alter the work environment and create an abusive working environment." (RT 2875.)

11. Before this litigation, CH2M Hill itself recognized the beneficial impact of Richards' efforts. In 1993, the company's director of diversity, Ricardo Correria, conducted an investigation and prepared a report about Richards' treatment by CH2M Hill. The report recommended that the firm provide "special recognition" to Richards "for her contributions as an engineer and as one who assisted us in learning more about individuals with disabilities." Richards "made a difference and . . . because of her contribution perhaps others with disabilities may be able to work for CH2M HILL and lead successful careers." In recognition of her contribution, Correria urged CH2M Hill to establish a scholarship in Richards' name for a minority or female student with a disability. (Exh. 82, p.3, RT 716-718.) CH2M Hill did not implement Correria's recommendations. (RT 718.)

12. 12 In the more frequently studied area of sexual harassment, behavioral science research has shown that filing a formal complaint or a lawsuit is the least frequent response by victims of sexual harassment. Most harassment victims pursue less confrontational strategies -- telling the harasser to stop or seeking social support -- or simply try to avoid the problem. The most common reason for not formally reporting harassment is fear -- of retaliation, of not being believed, of hurting one's career, or of being humiliated. Sadly, retaliation is common and the most assertive employees suffer the greatest costs. (Fitzgerald, Swan & Fischer Why Didn't She Just Report Him? The Psychological and Legal Implications of Women's Responses to Sexual Harassment (1995) 51 Journal of Social Issues 117, 120-123; Lach & Gwartney-Gibbs, Sociological Perspectives on Sexual Harassment and Workplace Dispute Resolution (1993) 42 Journal of Vocational Behavior 102, 110-111. See Note, Notice in Hostile Environment Discrimination Law (1977) 112 Harv. L. Rev. 1977, 1985-1994 [very few harassment victims choose formal channels of complaint].)

13. 13 We have found no California authority concerning the standard of review of a finding of a continuing violation. However, other state courts use the substantial evidence standard of review. (Martini v. Boeing Co., supra, 88 Wash.App. 442, 945 P.2d 248, at p. 254. Federal Title VII cases use either the clearly erroneous or abuse of discretion standard. See Abrams v. Baylor College of Medicine (5th Cir. 1986) 805 F.2d 528, 532 [clearly erroneous]; Calloway v. Partners Nat. Health Plans (11th Cir. 1993) 986 F.2d 446, 448 [same]; West v. Philadelphia Elec. Co. (3d Cir. 1995) 45 F.3d 744, 757 [abuse of discretion].)

14. 14 Richards' meeting with her supervisor on January 27, 1993 and her later submission of typewritten comments occurred within the one-year period. (Slip op. at 16.) At that meeting and in her comments, Richards discussed the many access problems she was facing -- hallway barriers; ramps; lunchroom, elevator, and supply room access; fire escape issues, etc. Thus, there is no dispute that a number of access problems were pending during the one-year period. The Court of Appeal conceded as much: "[P]laintiff has established the occurrence of unlawful practices during the limitations period . . . ." (Slip op. at 44.)



There is a factual dispute about how many of these problems were resolved between January 1993 and plaintiff's resignation in March 1993. Richards testified that Uhouse's aide, Kathy Metzger, worked on the problems but was having trouble getting things done. (RT 584, 904-905, 949-950.) The Court of Appeal improperly disregarded Richards' testimony when it stated that by February 1993, "all of the issues plaintiff had raised in her typewritten comments either had been or were in the process of being resolved." (Slip op. at 17.) For purposes of this court's analysis, however, that factual disagreement is unimportant.

15. 15 Richards testified that every time she contacted CH2M Hill management, the response she got was: "We have these concerns, but we don't have the answer." She visited Resources for Independent Living "to get information how we do this. And I gave it to them so we would all have it." (RT 442.) She was just "trying to help." (Ibid.)

16. 16 The court noted that in Alexander v. Choate (1985) 469 U.S. 287, the U.S. Supreme Court rejected the contention that federal law proscribes only intentional discrimination against the handicapped. Handicap discrimination is generally the product of "thoughtlessness and indifference -- of benign neglect," the high court stated in Alexander. (At p. 295.)

17. Richards' excellent evaluations after her MS diagnosis attest to her continued competence as an engineer for CH2M Hill. (See footnote 3, supra, and Exhibits 58-68.)

18. 18 The special verdict form defined "economic damage" as "past wage and benefits loss, and/or present value of future wage and benefit loss, minus any mitigation proven by defendant." (CT 2233, 2235.)

19. 19 Civil Code section 3333 provides:



"For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."

20. 20 Another case which applied the same principle is Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976. The plaintiff was subjected to sexual harassment, went on disability leave, and then resigned. Suing under the FEHA, she was awarded lost earnings as well as emotional distress damages. The Court of Appeal affirmed the judgment for lost earnings because there was substantial evidence that "but for" the harassment, the plaintiff would have remained at her job indefinitely. The court did not specifically discuss the principle that wage loss caused by discrimination is recoverable without a constructive discharge finding.

21. 21 The award was less than the amount which plaintiff's economist testified were Richards' total economic damages. (RT 1593.) CH2M Hill did not present any testimony from an economist.

22. 22 Title VII's remedies provision, 42 U.S.C. 2000e-5(g)(1), states in pertinent part:



"If the court finds that the respondent has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.

23. 23 Richards left CH2M Hill in early 1993 and her case is still in litigation seven years later. In Brown v. Superior Court, supra, 37 Cal.3d 477, this court recognized the severe problems faced by employment discrimination victims stating at p. 486:



"Victims of employment discrimination are frequently unemployed -- many times as the result of the alleged discrimination. They often lack financial resources. For such individuals, the costs of litigation pose a formidable barrier to the filing and prosecution of an FEHA action."

24. 24 In Ezold v. Wolf, Block, Schorr and Solis-Cohen (E.D. Pa. 1991) 758 F.Supp. 303, 312 the district court stated:



"Application of this constructive discharge rule would give employers a free hand to engage in a careful campaign of subtle discrimination against an employee -- such as inferior work assignments, etc. -- which so long as it does not rise to the level of making working conditions intolerable, would not make the employer responsible for its unlawful actions past the date at which the victimized employee surrenders by resigning."