California Professor’s Discrimination Case Survives University’s Claim that Anti-SLAPP Law Blocked the Lawsuit

Generally, most laws are designed to advance some sort of public policy objective. Each law, at its core, intends to protect or advance the public good in some way. So what happens when two laws, each with strong public policy bases, come into conflict with each other? A recent case that came before the California Supreme Court regarding the Fair Employment and Housing Act and the state’s anti-SLAPP statute demonstrated such a conflict. The case shows that any case can take twists and turns and encounter unforeseen complexities, which is why your FEHA case needs the careful attention of an experienced California employment attorney.

The recent Supreme Court opinion involved a Korean professor at one of the California State University campuses. In 2013, the university decided not to grant tenure to the professor. The professor sued, alleging that the university decided not to award him tenure due to national origin discrimination.

This is where the case became complicated. The employer asked the trial court to dismiss the case. The university’s argument was that the professor’s lawsuit impaired its freedom of speech and was a violation of California’s anti-SLAPP statutes. SLAPP refers to “strategic litigation against public participation.” This phrase refers to any lawsuit filed simply to intimidate, burden, or otherwise force someone to cease engaging in protected activity like free speech or petitioning for redress of grievances.

The key question presented by this professor’s case was:  can an employer use the anti-SLAPP statute to shield itself from an employee’s discrimination lawsuit under the FEHA? The answer the Supreme Court provided in this opinion was sometimes.

The anti-SLAPP statute covers not only free speech activities and petitions for redress of grievances but also acts “in furtherance of speech or petition rights.” This group of “in furtherance of” activities includes four categories, three of which are:  “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, … (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, … or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech.”

In this case, the professor’s case looked like many other national origin discrimination cases. He alleged that he was Korean, that he was qualified for tenure, that he was denied tenure, and that the university granted tenure to other white professors who were equally or less qualified than he was. As is typical of cases like this, he relied upon evidence of certain oral statements (like a dean’s comments that allegedly showed ethnic bias) and written documents (including the letter that informed the professor of the tenure decision). The fact that the professor relied on these things as key pieces of evidence did not mean that he was suing the university because of the comments and the letter. Instead, the professor was suing because of the denial of tenure, the court stated.

This was a very important, albeit subtle, distinction. If the employee’s lawsuit had been based upon the comments or the letter, the university might possibly have had a valid argument based upon the anti-SLAPP statute. But the lawsuit was not; it was based upon the university’s decision to deny tenure, and tenure decisions themselves are not free speech, nor are they acts in furtherance of speech or petition rights. This meant that the anti-SLAPP law didn’t apply, and the professor could proceed with his discrimination case.

Whether you’ve been a victim of ethnic discrimination, race discrimination, sex discrimination, sexual harassment, or some other form of illegal workplace conduct, you need knowledgeable employment attorneys working for you. The Oakland employment attorneys at the Law Offices of Stephen M. Fuerch have spent many years helping workers who’ve been harmed as a result of discrimination in the workplace. To learn more about how our team can help you, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

More Blog Posts:

Deciding When the ‘Clock’ Starts Running for the Statute of Limitations in Your California FEHA Case, Oakland Personal Injury Attorney Blog, Sept. 27, 2017

Employer’s Neutral Application of Its Policies Dooms California Sales Representative’s FEHA Case, Oakland Personal Injury Attorney Blog, March 29, 2017

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