Opposing Policies Unrelated to Employment Not Protected Activity

Recreation department employee could not pursue retaliation claim under California law

By Joanne Deschenaux, J.D. Feb 23, 2017
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A former employee of the San Francisco Recreation and Parks Department—who alleged that he was laid off because he opposed department policies that discriminated against members of the general public with disabilities—could not pursue a retaliation claim under the California Fair Employment and Housing Act (FEHA), the California Court of Appeal ruled.

Because the employee's actions were not directed at an unlawful employment practice, the court held that the employee could not reasonably have believed that the policies he opposed were prohibited by FEHA. Hence, the court ruled, his conduct was not protected activity.

David Dinslage began working for the San Francisco Recreation and Parks Department in June 1972. He worked in the department's recreation division, which organizes arts- and sports-related activities for people of all ages and abilities, as well as leisure activities and community service opportunities. In 1998, Dinslage became the coordinator of assistive services, working almost exclusively on activities for children and adults with disabilities.

In 2009, the department decided to stop providing segregated programs to people with disabilities and instead ensure that all of its programs were accessible. In 2009 and 2010, the department eliminated many of the special events Dinslage organized, as they were segregated events.

Dinslage and other department employees met with their superiors to express their disagreement about these changes. Dinslage also spoke out in public forums about his concern that the department's new focus would negatively affect people with disabilities.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

As a result of a restructuring of the department's recreation programs, Dinslage's job was eliminated and he was one of many employees who were laid off. Although he applied for a newly created job in the department, he was not offered the position. He retired from city employment on Aug. 29, 2010.

Dinslage filed suit on June 29, 2011, against the department, the city and a number of the department's managerial employees. The trial court dismissed the retaliation claim before trial, and he appealed.

He argued that there was evidence that the department retaliated against him for supporting and promoting the rights of people with disabilities and, therefore, his claim should have been allowed to go to trial. The appeals court disagreed and affirmed the trial court's ruling.

Opposition Was Not to Employment Practices

FEHA, which prohibits employment discrimination, also makes it unlawful for any employer "to discharge, expel or otherwise discriminate against" an employee because he or she has opposed activity the employee reasonably believes violates the statute.

The appellate court made it clear that an employee's conduct may constitute protected activity not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under FEHA but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate FEHA. The critical factor is that the employee "reasonably believes" the practice is prohibited by FEHA.

The court then noted that "Neither the 'unlawful practice' nor the 'good-faith belief' requirement is satisfied where the practice complained of was not directed at employees but, instead, was directed to individuals who are not in an employment relationship with the defendant." The court held that Dinslage could not "reasonably have believed his actions constituted protected activity, because there is no dispute his opposition was not directed at the department's employment practices."

Dinslage v. City & County of San Francisco, 5 Cal. App. 5th 368 (Nov. 9, 2016). 

Professional Pointer: Despite the limitation imposed here, FEHA's retaliation protections remain quite broad. As long as an employee is opposing a practice that he or she reasonably and in good faith believes violates the law, the conduct is protected—even if the practice is not actually prohibited by FEHA.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter. 

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