In DeJung v. Superior Ct. (No. A116911, December 19, 2008) ___ Cal.App.4th ___, the Court held that public entities can be found liable for violations of FEHA (Gov. Code § 12900 et seq.) The Court of Appeals reversed a trial court ruling which held that public entities were protected from claims based upon an affirmative defense of discretionary immunity. (Gov Code § 815.2(b) and Gov. Code § 820.2.)
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Briefly, Theodore DeJung was passed over for appointment as a Municipal Court commissioner for the Sonoma County Superior Court. This followed statements by the presiding judge of the Superior Court, Allan Hardcastle, that the executive committee wanted to hire “somebody younger, maybe in their 40’s” for the position. DeJung was 64 years old. The position was ultimately filled by 43-year old Larry Ornell.
De Jung sued the Superior Court for age discrimination under FEHA. The Superior Court filed a motion for summary judgment, which the trial court granted. DeJung then appealed.
The major point at issue in the appeal is: Are public entities protected from liability under FEHA due to an affirmative defense of discretionary immunity. After examining the various statutes the Court held that public entities can be held liable under FEHA. The court based its holding on the language within Gov. Code § 12926 which states for purposes of FEHA, “employers” include "the state or any political or civil subdivision of the state and cities.” The court held that this language created a clear indication of the legislative intent to remove immunity in FEHA cases. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 989.)
--Michael Sachs
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