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Worker harassed with threesome should get more time to sue, court rules

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A California appellate court has struck down an employment agreement that says employees must file claims within six months after the employment action in a case involving a female railroad guard who refused to participate in a threesome with her supervisor and his wife.

Ashley Ellis went to work for Roswell, Ga.-based U.S. Security Associates Inc. as a railroad security guard at the Union Pacific Railroad yard in Benicia, Calif. in September 2009, according to Thursday's ruling by the California Court of Appeal in San Francisco in Ashley Ellis v. U.S. Security Associates et al..

In early April 2010, she came under the supervision of Rick Hayes, who also supervised his wife, Tina. In August 2010, Mr. Hayes began proposing that Ms. Ellis join him and his wife in sexual activities. Although she rejected the proposal, he continued a “pattern of offensive and unwanted sexual behavior at work,” according to the ruling. After complaints by others, Mr. Hayes was terminated in December 2010.

Ms. Ellis was then given a promotion, but allegedly not given a raise as high as one that she had been promised, and she left her position in January 2011. She had filed a complaint with the California Department of Fair Employment and Housing and on Dec. 14, 2010, received a right to sue letter.

She then filed suit against U.S. Security in November 2011 on charges of sex discrimination and sexual harassment; failure to maintain an environment free from harassment; retaliation; intentional infliction of emotional distress; and negligent hiring, supervision and retention.

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A lower court in Fairfield, Calif., dismissed the case, based on an employment agreement Ms. Ellis had signed which states that any claim or lawsuit must be filed no more than six months after the date of the employment action that is the subject of the claim or lawsuit.

A three-judge state appellate court in San Francisco unanimously reinstated the case. “The shortened limitation provision is unreasonable and against public policy,” says the ruling.

Under the Fair Employment and Housing Act, Ms. Ellis had a year from the time she received her right to sue letter in December 2010 to file suit, said the ruling.

“The six-month provision here effectively eliminates any meaningful participation by the (Department of Fair Employment and Housing). It is not reasonable,” said the ruling, which also said U.S. Security's attempts to support the limitation provision were “unpersuasive.”

Commenting on the ruling, D. Gregory Valenza, managing partner at Shaw Valenza L.L.P. in San Francisco, said, “It's helpful to employers to have a clear understanding that shortening the statute of limitations in (Fair Employment and Housing) cases is not going to work, at least in the way the employer did it in this case, because the employer was really making it difficult for the employee” to file a charge, receive a right to sue letter and file a lawsuit.

“But in other contexts employers can still shorten the statute of limitations” for claims that are not brought under the FEHA, he said.