Labor & Employment Law

9^th Circuit holds that Statute of Limitations began to run when individual was not hired

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Zolotarev v. City and County of San Francisco __F.3d___(9th Cir. Aug. 7, 2008), is an important reverse discrimination case.

Plaintiffs were job applicants who, several years after their nonhire, alleged the city and county of San Francisco gave preferential hiring treatment to Asian and Filipino candidates. They brought suit under their Section 1981, 1983, 1985 and 1986 alleging race and national origin discrimination. The Ninth Circuit, in an apparent matter of first impression dismissed the case on the basis of the statute of limitations.

Some of the applicants contended they had no reason to know of the discriminatory treatment until several years after they were not hired. It was only then that they learned that allegedly unqualified Asians and Filipinos had been hired. Other unsuccessful applicants asserted they were unaware of the defendants' discriminatory conduct until they received a letter notifying them of the instant lawsuit. Joining seven other circuits, however, the Ninth Circuit held the statute of limitations period begins "upon awareness of the actual injury" (i.e., the adverse employment action), not when "the plaintiff suspects a legal wrong" (i.e., the discriminatory intent behind the adverse action). Therefore, the applicants' claims "accrued at the time they received notice they would not be hired" or "when a reasonable person would have realized he had not been hired," held the appeals court.

I believe this decision is wrong-very wrong.

Mitchell H. Rubinstein