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McInerney v. Regents of the University of California
California Court of Appeal, Second District, Division Two · 2026 · Published opinion (PDF)
Summary for general education only—not legal advice. This is not a Workplace Rights Advocacy case result. See Case Results for the firm’s own verdicts and settlements.
A published California Court of Appeal decision about California’s Fair Chance Act (Government Code § 12952), the part of the FEHA that limits how employers use conviction history in hiring. John “Jack” McInerney, a 65-year-old UCLA student with drug convictions from 2005 and 2007, received a conditional offer for a part-time office assistant job in UCLA’s Graduate Student Resource Center and began working shifts while his background check was pending. When the check came back, UCLA sent a pre-adverse action letter giving him five business days to submit evidence of rehabilitation or mitigating circumstances. Instead, he sent a series of angry emails to human resources staff, calling them “assholes,” “witch hunters,” and “the criminal here.” Two days later, before the five days had run, UCLA told him he was ineligible. The Los Angeles Superior Court summarily adjudicated his retaliation and failure-to-prevent claims and found UCLA followed the Fair Chance Act in every respect except the shortened response window. A jury then found that his conviction history was not a substantial factor in the decision and that UCLA would have reached the same result even with the full five days. The Court of Appeal affirmed.
On retaliation, the emails were not protected activity. The Fair Chance Act expressly allows a background check after a conditional offer, and nothing in the FEHA bars an employer from relying on a 14-year-old conviction, so general protests that it was unfair to hold old convictions against him did not show a reasonable belief that UCLA was breaking the law. He never complained that UCLA skipped a step the statute requires. Relying on Title VII cases, the court added that “unreasonably hostile or aggressive” conduct falls outside protected opposition, and UCLA’s evidence that it relied on his unprofessional emails and lack of a substantive response defeated causation despite the close timing. On the Fair Chance Act, the court held that the statute imposes a procedure: an individualized assessment of the nature and gravity of the offense, the time elapsed, and the nature of the job, followed by notice and a chance to respond. Courts and juries do not review whether the employer reached the right answer about a “direct and adverse relationship” to the job. Unlike New York, Minnesota, or Hawaii law, California’s statute does not expressly prohibit denying a job when no such relationship exists. The regulation’s rebuttable presumption against relying on convictions seven or more years old applies only to adverse-impact challenges to bright-line policies. Finally, denying the full five business days was a violation, but the Fair Chance Act provides no statutory damages, so the applicant must prove the violation actually caused harm.
In plain English: the Fair Chance Act gives job applicants with a record real procedural rights, including no conviction questions before a conditional offer, an individualized assessment, written notice, and at least five business days to respond, but under this decision it does not let a court overrule the employer’s judgment about whether an old conviction matters for the job. That makes the response window especially important. If you receive a pre-adverse action letter, use the time to send concrete evidence of rehabilitation or mitigation, such as program completion, work history, references, and how long ago the offense occurred, and keep your communications professional. Objections framed as a specific statutory violation (for example, being asked about convictions before an offer, or not being given the notice the law requires) are more likely to be treated as protected activity than general complaints that the process is unfair. Compare Saberin v. Alation, which addressed where § 12952’s arrest-record protections apply geographically. Related practice pages: retaliation, discrimination, and wrongful termination.
Related: Retaliation Claims · Discrimination Claims · Wrongful Termination · Government Employees · Los Angeles Employment Lawyers