California Court of Appeal Rejects Employee’s FEHA Retaliation Claim Because It Alleged


On November 9, a California appellate court published a decision denying an employee’s claim of unlawful retaliation under California’s Fair Employment and Housing Act ("FEHA"). The employee had alleged unlawful retaliation for opposing his employer’s actions against disabled members of the public. The appellate court affirmed the trial court’s dismissal of the employee’s claim, ruling that the employer’s actions were neither objectively nor subjectively discriminatory and did not involve an employment practice because they were directed at members of the public rather than employees.

Facts of the Case

David Dinslage was employed by the Recreation and Parks Department ("Department") of the City and County of San Francisco ("City"). Dinslage organized many events just for people with disabilities. The Department canceled these events after deciding to make all of its programs accessible to people with disabilities. Dinslage told his superiors he disagreed with the new policy; however, the Department proceeded with these changes. Later, as part of a large-scale restructuring of the Department’s recreation programs, Dinslage’s employment classification was eliminated and he was laid off.

Dinslage sued the Department, the City, and several of the Department’s managers for age discrimination, retaliation, and harassment in violation of the FEHA. Dinslage claimed that he had been laid off, in part, in retaliation for opposing the Department’s changes, which he perceived to be discriminatory against people with disabilities.

The trial court granted summary judgment for the City, ruling that it had shown legitimate, non-retaliatory reasons for its actions. The appellate court affirmed. The published portion of the court’s opinion discusses its reasons for dismissing the retaliation claim.

Retaliation Claims under the FEHA

In order to show retaliation under FEHA, a plaintiff must demonstrate: (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action. A plaintiff has engaged in a qualifying "protected activity" if he opposed an employment practice that is either found to be discriminatory or was "reasonably and in good faith" believed by the plaintiff to have been discriminatory. The plaintiff’s belief that his employer’s employment practice was discriminatory must be both subjectively and objectively reasonable.

Dinslage claimed that the Department retaliated against him for supporting the rights of the disabled community, including his opposition to the elimination of a program benefitting the disabled community. However, the court held that Dinslage did not show that the Department discriminated against disabled citizens.

Furthermore, the court noted that even if Dinslage had shown that the Department’s actions were discriminatory, "discrimination by an employer against members of the general public is not a prohibited employment practice under the FEHA." The court reasoned that Mr. Dinslage could not have reasonably believed that his opposition constituted protected activity because it was not directed at the Department’s employment practices.

Accordingly, because the practices Dinslage opposed were not unlawful under the FEHA and because Dinslage’s belief that these practices were discriminatory was both objectively and subjectively unreasonable, he could not assert a valid claim of retaliation.

Future Implications

California employers should ensure that their employment practices comply with the FEHA; employees may be terminated only for legitimate, non-retaliatory reasons. The decision in Dinslage clarifies that an employer may terminate an employee for a legitimate, non-retaliatory reason without concern for the employee’s prior opposition to the employer’s non-employment practices. However, given the significant impact of this decision, an appeal to the California Supreme Court is likely.

* We thank our law clerk Arielle Spinner for her assistance in drafting this Alert.



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