California Employee’s Criticism of Employer’s Policies’ Impact on Disabled Community Wasn’t Protected by FEHA

SF city parkCalifornia’s prohibitions against employment discrimination, including those contained in the Fair Employment and Housing Act, provide significant protection to employees, guarding them against mistreatment in the form of improper discrimination. In addition to protecting certain groups like women, people of color, and religious minorities, the FEHA also protects some employees who engage in certain protected activities from retaliation by their employers. Unfortunately for one San Francisco parks and recreation worker, the California Court of Appeal determined that the law did not protect him, since the activities that he claimed got him fired were not protected activities under the law.

The employee, David Dinslage, had spent nearly 40 years with the City and County of San Francisco’s Parks and Recreation Department when the department eliminated his position. Shortly before the end of Dinslage’s employment, the department decided to cease holding many of its programs specifically designed for people with disabilities (which Dinslage managed), choosing instead to shift toward a focus of making its general programs more inclusive with regard to the disabled community.

After his employment ended, Dinslage sued his employer, alleging both age discrimination and retaliation. In the trial court, the department won after the trial court ordered summary judgment in its favor.

Dinslage appealed, but the employer still won. One of the key problems with Dinslage’s age discrimination claim was that his allegations did not sufficiently connect to his age. He asserted that the employer treated him poorly and made it known that he was a target for termination. The problem was that an employer is free under the law to treat employees unfairly, criticize them harshly, and threaten them with demotion or firing, as long as the employer is not driven by an illegal motive, such as impermissible discrimination. While Dinslage made detailed claims of poor treatment by his employer, his assertions never sufficiently indicated that his superiors were treating him badly because of his age. Without that connection showing that his age was the motivating factor behind the mistreatment, the employee couldn’t make out a claim of intentional age discrimination.

The appeals court also upheld throwing out Dinslage’s retaliation claim. The employee had based his retaliation claim upon his engaging in acts of speaking out in public forums regarding the department’s new policies and their negative impacts on the disabled community. The law does recognize an employee’s speaking out against his employer’s employment practices as a protected activity, which means this can form the basis of a valid retaliation claim. However, to qualify, the speech must relate to impacts felt by the employer’s employees, rather than the general public. Criticizing your employer by asserting that its policies are harmful to members of the general public or a group of people within the general public cannot constitute a critique of the employer’s employment practices, meaning that it isn’t a protected activity and cannot make up the basis of a FEHA retaliation claim.

When you are considering your options in the wake of being mistreated by your employer, it helps to understand what all of your options are under the law and which legal avenues can (or cannot) help you achieve the outcome you seek. The hardworking Oakland employment attorneys at the Law Offices of Stephen M. Fuerch have been helping employees with their discrimination and wrongful termination cases for many years. Contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.

More Blog Posts:

California Appeals Court Upholds $16M Judgment in Age Discrimination Case, Oakland Personal Injury Attorney Blog, June 30, 2016

Governor Signs New California Law to Expand Definition of Protected Activities under FEHA, Oakland Personal Injury Attorney Blog, Aug. 17, 2016