Earlier this month, journalist E. Jean Carroll won a $5 million verdict in a lawsuit alleging sexual assault by former President Donald J. Trump nearly 30 years ago. Ms. Carroll was able to pursue this previously time-barred claim through New York’s Adult Survivors Act, which revived old sexual assault claims for a short window of time. A similar law in California was enacted this year that would allow sexual assault victims to hold their attackers (and entities engaging in cover-ups) accountable for previously time-barred claims.
Survivors of sexual abuse face many structural obstacles to pursuing justice and accountability. Powerful institutions, including employers, may engage in active cover-ups of assaults, coercing survivors’ silence through non-disclosure and confidentiality agreements[A1] and other means. Additionally, the trauma of sexual abuse and societal stigma may make survivors reluctant to share, report, or pursue legal remedies for the physical and psychological pain and injury they suffered. These and other factors have, in many cases, curtailed survivors’ ability to hold perpetrators and the institution’s enabling them accountable if and when they were ready to come forward, because the short, applicable statutes of limitation (i.e., deadlines for pursuing legal action) may have elapsed.
In the past, California Code of Civil Procedure Section 340.16 permits plaintiffs to pursue civil claims for sexual abuse that occurred after the plaintiff’s 18th birthday either within 10 years of the last wrongful act or 3 years from the date the plaintiff discovers or reasonably should have discovered an illness or injury resulting from the assault. Signed into law by Gov. Gavin Newsom in Feb. 2023, the Sexual Abuse and Cover Up Accountability Act (AB 2777) revives sexual abuse claims stemming from acts of sexual assault that occurred on or after January 1, 2009, if those claims were barred solely due to the expiration of the statute of limitations. Now, under the new law, Plaintiffs have a brief window until December 31, 2026 to file these previously time-barred claims.
Corporate Cover-Ups Also Extend Time for Filing Claims
Importantly, AB 2777 addresses not only claims against perpetrators of sexual assault, but also certain claims against employers and other entities that may be legally responsible for damages arising out of the sexual assault or other inappropriate conduct, communication, or activity of a sexual nature. Noting “news reports of major companies being accused of covering up sexual assaults by their employees,” the statute states that “statutes of limitation for sexual assault need to be crafted in a way that does not cause the covering-up company to enjoy the fruits of their cover-up solely because our statutes of limitation permit, and thus motivate, such behavior.”
AB 2777 revives claims involving employer cover-ups of sexual assaults for one year – from January 1, 2023, to December 31, 2023. A plaintiff may pursue otherwise time-barred claims, including causes of action for sexual harassment and wrongful termination under the California Fair Employment and Housing Act, against an employer, if they allege:
- They were sexually assaulted.
- One or more entities are legally responsible for damages arising out of the sexual assault; AND
- The entity or entities, including, but not limited to, their officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.
A “cover-up” is defined in the new law as “a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.”
AB 2777 provides sexual assault survivors, including individuals with sexual harassment and wrongful termination claims stemming from assault in the workplace,a meaningful opportunity to pursue accountability.
If you are a California survivor of sexual assault who also experienced related acts of misconduct, harassment, or discrimination at work, we welcome the opportunity to meet with you to discuss whether and how this change in the law may allow you to pursue employment law claims. Please contact Outten & Golden today to discuss your situation.