Fair Employment and Housing Act Prohibition Against Sexual Orientation Discrimination Applies Retroactively

November 10, 2002
Scott Hoey-Custock entered the Oakland Police Academy as a recruit trainee. During Hoey-Custock’s training, fellow recruits and supervisors began harassing him for being gay. After a recruit made an anonymous complaint about the harassment, the Department launched an investigation and terminated four recruits. After Hoey-Custock failed two subjective remedial tests, the Academy gave him the option to either resign or be terminated. He resigned and later brought suit under the Fair Employment and Housing Act (FEHA) for discrimination and retaliation based upon sexual orientation. After trial, the jury found for Hoey-Custock and awarded him $500,000. The City appealed.

The California Court of Appeal affirmed. At the time Hoey-Custock resigned, the FEHA did not contain a specific prohibition against discrimination or retaliation on the basis of sexual orientation. Labor Code section 1102.1, however, prohibited discrimination based upon actual or perceived sexual orientation. When the Legislature added language to the FEHA explicitly making discrimination or retaliation on the basis of sexual orientation unlawful, it noted that its intent was to incorporate the pre-existing Labor Code statute. Though the City made the valid argument that Hoey-Custock prosecuted his case under the FEHA rather than the Labor Code, it did not result in any prejudice. Regardless of the statute upon which Hoey-Custock based his claim, the cause of action would have been identical. Similarly, all of the same affirmative defenses were at the City’s disposal. The trial court did not err, therefore, when it allowed the claim under FEHA to be applied retroactively.

Hoey-Custock v. Oakland, 2002 WL 1875099 (2002).
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