9th Circuit decision good news for employers

On August 7, 2008, the 9th Circuit Court of Appeals joined many other Circuits in deciding that in cases involving constitutional discriminatory hiring claims, the accrual period begins when candidates find out they aren't hired, or when a reasonable person would have realized this. The case is Zolotarev v. San Francisco.

Okay, so let's back up a second...what's a discrimination claim under the constitution? What we're talking about here are claims filed under Title 42 (Chapter 21) of the U.S. Code, such as Sections 1981 and 1983. These cases are typically brought against private sector employers (although as this case makes obvious, not always), and are sometimes combined with claims under other, more common, statutes, such as Title VII.

Why would someone want to bring a claim under these Sections? Several reasons:

- Unlike Title VII, ADA, or ADEA, there are no administrative requirements--in other words someone can file directly in court rather than going through, say, the EEOC

- Unlike discrimination cases brought under other laws, there are no caps to compensatory and punitive damages (of course no punitive damages are available from public sector entities)

- Also unlike cases brought under other statutes, there can be individual liability in these cases--specific hiring supervisors and HR staff can be held liable (of course this is pretty rare and most folks are indemnified, but still, having your name in a lawsuit isn't much fun)

So what's accrual? The statute of limitations specifies how long plaintiffs have to file a suit. Accrual refers to when this period starts. So in California, where this case was filed, the statute of limitations for these types of cases is one year (reiterated in this decision). When that year starts is the take home from this case--according to the 9th Circuit, it starts when the plaintiffs found out they weren't hired, or when a reasonable person would have realized this. It does not start when they later suspect they were wronged.

This is in line with what many of the other Circuit courts have decided. So why is this good news for employers? Because it means these types of cases cannot be successfully brought longer than one year after candidates are informed they weren't chosen. Not only does this mean you can breathe a sigh of relief, it limits how long you need to retain your records (although you will want to check to see what other laws apply to you and how long their statute of limitations are).