United States: California Supreme Court Reopens The Door For SLAPPing Retaliation And Discrimination Claims

The California Supreme Court has ruled that a former employee's retaliation or discrimination claim can be dismissed at the initial stages of litigation via California's anti-SLAPP statute. In Wilson v. CNN, decided July 22, 2019, the court overturned decisions of several courts of appeal that held otherwise and returned a strong tool to employers in defending against suits challenging an employee's termination.

Anti-SLAPP background

California's anti-SLAPP statute (SLAPP stands for "Strategic Lawsuit Against Public Policy"), Code of Civil Procedure 425.16, allows a defendant to have a plaintiff's claim dismissed at the very beginning of litigation if (1) the employer can establish that the plaintiff's claim implicates activity protected by the statute and (2) the plaintiff is unable to show that his or her claim has minimal merit. California's Legislature enacted the statute to allow the quick dismissal of claims that implicate a defendant's First Amendment-related acts. Filing the motion automatically stays discovery and, if the defendant wins, entitles the defendant to attorney's fees.

In order to trigger the anti-SLAPP statute, the defendant must establish that the actions the plaintiff complains of fall under one of four categories of activity protected by the anti-SLAPP statute. The fourth category of activity protected by the anti-SLAPP statute is "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."

The decision

Whether an employee's allegedly retaliatory and discriminatory termination constituted "conduct" implicating this fourth category was the issue in Wilson v. CNN. In that case, the plaintiff wrote and produced stories for CNN until CNN terminated his employment. The plaintiff sued, challenging his termination via various discrimination and retaliation claims. In response, CNN filed an anti-SLAPP motion, arguing that its decision to terminate the plaintiff's employment was in furtherance of its right to determine who should speak on its behalf on matters of public interest. The court of appeal concluded the termination did not trigger the anti-SLAPP statute because the plaintiff was not challenging the termination decision itself, but rather the employer's motivation for the termination decision. As an employer's motivation is not "conduct," the anti-SLAPP statute is not implicated.

The Supreme Court reversed, explaining that, for purposes of a discrimination or retaliation claim, an employer's motivation for terminating an employee is one and the same with its termination of the employee. Therefore, by challenging the employer's motivation for the termination, the employee is also challenging the termination, which is "conduct" that can be protected by the anti-SLAPP statute, and discrimination and retaliation claims are "SLAPPable" once again.

The decision wasn't a complete win for employers, however. The court further explained that, simply because an employer is a news organization, its staffing decisions do not necessarily implicate the employer's First Amendment rights. Rather, for the staffing decision to implicate the First Amendment, and therefore to invoke the anti-SLAPP statute, the terminated employee must have had authority to make editorial decisions.

In contrast, the court reasoned, CNN's rationale of terminating the plaintiff for plagiarism concerns did implicate the employer's First Amendment rights, because "such decisions protect the ability of a news organization to contribute credibly to the discussion of public matters."

Looking ahead

The court's finding that a news organization's employee must have had editorial authority for his termination to invoke the anti-SLAPP statute will likely generate the next battle lines of anti-SLAPP litigation. Employers from other industries will now have to argue that the employee they terminated had the equivalent of "editorial authority." Take a hospital, for example. Will the termination of any doctor from a medical staff be the equivalent of terminating someone working for a news organization with editorial authority? Probably not, unless the doctor has some policymaking authority for the medical staff or the hospital.

However the law develops, the California Supreme Court has returned to employer defendants the protection of the anti-SLAPP statute.

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