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Employees’ Race Matters: Some Race-Based Decisions are Permitted under California Employment Discrimination Law

California employers are, or should be, well-versed with the Fair Employment and Housing Act (FEHA).  The FEHA is California’s anti-discrimination law.  It applies to employers with 5 or more employees and prohibits employment discrimination based on race.  This does not mean that employers are prohibited from making any decision based on race; rather, FEHA protects an employee from discrimination based on the race of the employee.

In Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, two police officers fatally shot and killed an unarmed, innocent man with autism.  The officers were removed from the field following an investigation into the shooting.  Afterwards, the officers sued for disparate treatment discrimination under the FEHA, alleging that they had been treated differently based on race since they were Hispanic and their victim was African-American.  The officers prevailed at trial and won a verdict, but the court of appeal overturned the verdict because the victim’s race was an inappropriate consideration.  Employment decisions can be based on “broader political concerns,” including the race of someone who is not the employee as long as the race of the employee was not a substantial factor in the employment decision.  So, the LAPD could consider the community reaction to the shooting and decide not to return any employee to the field after fatally shooting an African-American without violating FEHA.   The officers’ evidence failed to demonstrate that African-American officers, or any other non-Hispanic officers, would have been treated differently than they were treated following the shooting, and so their evidence could not support an employment discrimination verdict.

This case serves as a reminder that for FEHA discrimination claims, it’s the employee’s race that matters. FEHA guarantees equal treatment in the workplace to employees, so an employment discrimination claim must be based on the employee’s own protected characteristics.  Even though the employees were not able to sue the employer under FEHA for the alleged unequal treatment of other individuals based on race, this case does not mean that there is no protection from such treatment under other laws, just that such discrimination is not employment discrimination.


Besides race, the FEHA also prohibits discrimination based on religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

  By Samson R. Elsbernd

Wilke Fleury and Attorneys Recognized as ‘Best Law Firm’ and ‘Best Lawyers’ by U.S. News!

Wilke Fleury is pleased to announce its inclusion in the 2018 editions of ‘Best Law Firms’ in America and ‘Best Lawyers’ in America. The two award categories reflect excellence in legal service – firms included in the 2018 “Best Law Firms” list are recognized for professional excellence by clients and peers and Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

Wilke Fleury Recognized in U.S. News 2018 Edition ‘Best Law Firms’ in America

Wilke Fleury is honored to be recognized among the nation’s Best Law Firms by U.S. News – Best Lawyers.

“Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.”

Wilke Fleury Attorneys Elected to U.S. News 2018 Edition ‘Best Lawyers’ in America

Congratulations to David A. Frenznick and Ernest James Krtil on their election to the 2018 Edition ‘Best Lawyers in America.’

“Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

David A. Frenznick – Litigation, Real Estate

David has extensive and broad experience in the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.

Ernest James Krtil – Closely Held Companies and Family Business Law

Jim’s depth of experience in his practice emphasizes business law including mergers and acquisitions, nonprofit organization law and taxation, as well as estate planning and probate and trust administration, including trust and estate disputes.