Unlawful, or Just Mean? California Appellate Court Decides Discrimination Case

Attorney Nicholas Kanter

Nicholas Kanter | Shareholder

December 30, 2019

Chrystal Ferber | Associate

December 30, 2019
Supervisor's employee review

People with disabilities have legal protections under both federal and state law. California’s Fair Employment and Housing Act (FEHA) prohibits an employer from taking adverse actions against a person because of a person’s disability, perceived disability, or other protected characteristic. The FEHA however, does not guarantee a “stress-free working environment.”

A recent California Appellate Court decision grappled with FEHA’s distinction between unlawful conduct like discrimination, and what boils down to a “harsh” workplace, in Doe v. Dept. of Corrections and Rehabilitation.

In Doe, a former prison psychologist filed a lawsuit against the California Department of Corrections and Rehabilitation (CDCR) under FEHA alleging discrimination, retaliation, and harassment based on disability, as well as failure to accommodate his two alleged disabilities, asthma and dyslexia. Doe voluntarily resigned from his position with the CDCR and did not allege constructive termination.

To substantiate his claims, Doe argued that his former supervisor subjected him to several adverse employment actions by criticizing his work during a performance review, ordering a wellness check on him when he was out sick, denying him leave on a day where he was the only available clinician on duty, suspecting him of bringing a cell phone into the prison (a violation of CDCR policy), and assigning him as the “primary crisis person” on the same day as a union meeting (Doe admitted he was still able to attend the meeting).

Ruling in favor of the CDCR, the Court held that Doe’s evidence did not support his discrimination and retaliation claims.

First, the Court concluded that the conduct cited by Doe did not amount to an “adverse employment action,” which the Court defined as one which “materially affects the terms, conditions or privileges of employment” such as “hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” Importantly, Doe failed to establish a link between his supervisor’s actions and his disability. As noted by the Court, “FEHA addresses discrimination… [It] is not a shield against harsh treatment at the workplace.” While Doe may have viewed CDCR’s actions as stress-inducing, the actions did not rise to the level of objectively discriminatory or retaliatory acts.

Doe’s harassment claim failed for similar reasons.

To prevail on a harassment claim under FEHA, a plaintiff must show the purported misconduct was based on a protected characteristic and “sufficiently severe or pervasive as to alter the conditions of [his] employment.” As with the discrimination and retaliation claims, the Court determined that Doe’s supervisor’s conduct may have been upsetting, but did not “alter the conditions of [Doe’s] employment.” The Court also stated that Doe’s supervisor’s actions, such as criticizing Doe’s work, fell within the realm of his supervisory duties.

Doe highlights the purpose of FEHA, which is to eliminate “insidious behavior” in the workplace based on protected characteristics. FEHA does not, however, “guarantee employees ‘a stress-free working environment.’” The case also lends support to disposing of certain FEHA claims on summary adjudication.

Nicholas Kanter and Chrystal Ferber are employment defense attorneys.

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