Legal Update

Nov 18, 2016

Opposing Employer Actions Directed at General Public Not Protected Activity

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Seyfarth Synopsis: An employee who expresses opposition to an employer’s policies and practices that affect members of the general public is not engaging in an activity that FEHA protects, because the activity is not opposing an employment practice forbidden by FEHA.

Part of the Fair Employment Housing Act is the anti-retaliation provision of California Government Code section 12940(h), which forbids an employer from discharging or otherwise discriminating against any person because the person has “opposed any practices forbidden under this part.” To qualify for protection under this “opposition clause,” an employee must have opposed a practice that FEHA makes unlawful. The Court of Appeal, in Dinslage v. City & County of San Francisco, recently decided that an employee’s action taken in opposition to an employer’s allegedly discriminatory conduct toward members of the general public does not qualify as protected activity, because actions towards the general public are not employment practices.

The Facts

David Dinslage sued his former employer, the Recreation and Parks Department for the City and County of San Francisco, claiming that it violated FEHA by terminating his employment because of his opposition to Department actions that discriminated against people with disabilities. The City moved for summary judgment, arguing that Dinslage was fired for good reasons, including budgetary constraints and his opposition to program changes regarding the Department’s services. The City also argued that Dinslage had no case for retaliation because he had not engaged in protected activity. The trial court granted the motion, finding the City had legitimate non-discriminatory reasons for discharging Dinslage, and that his opposition—concerning conduct directed at members of the general public, not employees—was not protected activity under FEHA.

The Court of Appeal’s Decision

The Court of Appeal affirmed the trial court. The Court of Appeal held that Dinslage had no case for retaliation because he had not shown that he had engaged in a protected activity. His advocacy for the disabled community and his opposition to elimination of programs that might benefit that community did not qualify as protected activity. He had not shown that his employer’s actions amounted to discrimination against disabled citizens, but even if he had, an employer’s discrimination against members of the general public would not constitute a prohibited employment practice, and it is opposition to that kind of practice that FEHA protects.

The Court of Appeal noted that an employer’s conduct need not actually violate FEHA in order for an employee’s opposition to qualify as protected activity; if the employee, in good faith, held a reasonable, albeit mistaken, belief that the employer’s conduct violated FEHA, then his opposition could still qualify as protected activity. But that belief must be both subjectively and objectively reasonable when measured against existing law. Here, the Court of Appeal concluded that Dinslage’s belief that his employer’s conduct toward the general public violated FEHA was not objectively reasonable. Rather, the language of the statute and the case law and implementing regulations all make plain that the practice opposed must be an employment practice. That Dinslage opposed a practice he regarded as unwise or even improper was not enough to convert his opposition into a protected activity.

What Dinslage Means for Employers

Dinslage affirms that a claim of retaliation under FEHA cannot be premised on an employer’s conduct towards the general public, but rather must involve opposition to a specific employment practice. Dinslage will prove useful in defending against expansive retaliation claims by plaintiffs that involve activities or practices outside the workplace or that otherwise do not involve actual employment practices.