Lead Opinion
Opinion
We granted review in this case to determine whether the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)
I. Facts
Plaintiffs Emma Rojo and Teresa Maloney were employed as assistants by defendants Erwin H. Kliger, a practicing physician, and Erwin H. Kliger, M.D., a medical corporation (hereafter referred to collectively as defendant). In August 1986, plaintiffs filed a complaint against defendant for violations of the FEHA and intentional infliction of emotional distress. Plaintiffs alleged that during the term of their employment they had been subjected by defendant to sexually harassing remarks and demands for sexual favors which had ultimately forced them to leave their employment.
Defendant answered, denied the allegations and asserted various affirmative defenses. He then moved for summary judgment on the grounds that the FEHA constituted plaintiffs’ exclusive remedy and that plaintiffs had failed to exhaust their administrative remedies under the act. Plaintiffs opposed the motion, arguing that the FEHA does not supplant other state law remedies, including common law claims, relating to discrimination in employment, and that pursuit of the administrative remedy is not a condition precedent to judicial relief. They also requested leave to amend their complaint to assert causes оf action for assault and battery and tortious discharge in contravention of public policy, among other causes of action. The trial court granted defendant’s motion and entered summary judgment in his favor.
The Court of Appeal reversed. It held the FEHA does not preempt or preclude other state law claims relating to employment discrimination. It further held a victim of sex discrimination is not required to pursue the FEHA administrative remedy except with respect to claims under the act. Accordingly, the court concluded plaintiffs could proceed with their suit and seek recovery under any applicable theory independent of the FEHA, but could not state a cause of action under section 12940 because they did not exhaust their administrative remedies under the act. Finally, the court ruled that plaintiffs’ allegations of sexual harassment and discrimination would support a claim of tortious discharge in contravention of public policy.
A. The FEHA
As our resolution of the important questions raised in this case turns in large part on the language and purposes of the FEHA, we briefly review the salient features of that act.
The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab. Code, § 1410 et seq.) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq.) to form the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140 et seq.) The law establishes that freedom from job discrimination on specified grounds, including sex, is a civil right. (§ 12921.) It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940). (Commodore Home Systems, Inc. v. Superior Court (1982)
If no accusation is issued within 150 days after the filing of a complaint, or if the Department earlier determines not to prosecute the case and the matter is not otherwise resolved, the Department must give the complainant a “right to sue” letter. Only then may that person bring a civil suit “under this part.”
The broad goal of the FEHA is set forth at section 12920, which states in pertinent part: “It is hereby declared as the public policy of this state that it
B. FEHA Preclusion of Common Law Claims
The first question we address is whether the FEHA provides the exclusive remedy for injuries arising from discrimination in employment.
The meaning of the FEHA is clear in this regard. The act expressly disclaims any intent to repeal other state laws relating to employment discrimination. Subdivision (a) of section 12993 provides: “The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.” (Italics added.)
It is equally settled that the common law of this state provides any number of remedial theories to compensate for injuries “relating to discrimination” (§ 12993, subd. (a)). Brown v. Superior Court (1984)
Indeed, this court has recognized on many occasions that both administrative and judicial remedies are available to victims of employment discrimination. While holding, for example, in Dyna-Med, Inc. v. Fair Employment & Housing Com., supra,
By expressly disclaiming a purpose to repeal other applicable state laws (§ 12993, subd. (a)), we believe the Legislature has manifested an intent to amplify, not abrogate, an employee’s common law remedies for injuries relating to employment discrimination. Had the Legislature intended otherwise, it plainly knew how to do so. (See, e.g., Lab. Code, §§ 3600, 3601 [workers’ compensation law declared the “exclusive remedy” for work-related injuries]; see generally Shoemaker v. Myers, ante, p. 1 [
Defendant advances several arguments in an effort to rebut the clear import of the statutory language and the prior decisions of this court. None of these, upon examination, proves to be persuasive. Defendant first contends that the use of the term “repeal” in section 12993, subdivision (a) reveals a legislative intent to preserve only statutory provisions, not common law theories. Defendant cites no authority, however, to show that “repeal” is ordinarily used with reference only to statutes. On the contrary, the term is generally considered to be all inclusive: “[Rjepeal ordinarily means revocation, rescission, abrogation, or destruction . . . .” (Rains v. County of Contra Costa (1951)
The savings clause set forth in section 12993, subdivision (a) is expressly phrased in the broadest of terms; it disclaims any intent to “repeal”—a term used in conjunction with both statutes and common law— any other “laws of this state”—a phrase that also encompasses statutory and common law. There is no merit, therefore, to defendant’s contention
Defendant also cites subdivision (c) of section 12993 (hereafter subdivision (c) or section 12993(c)). Subdivision (c) states: “While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code.”
As written, subdivision (c) is ambiguous. First, the phrase “occupy the field” may convey displacement either of all other law, without limitation (see, e.g., Pacific Scene, Inc. v. Penasquitos, Inc. (1988)
Second, the stated legislative intent to occupy the field “exclusive of all other laws banning discrimination ... by any city, city and county [etc.]” (§ 12993(c), italics added) can be read to mean “not including” local laws (see, e.g., Webster’s New Internal. Diet. (2d ed. 1935) p. 890, col. 3), thereby removing them from the preemptive effect of the statute, or, as the parties assume, “to the exclusion of” local laws, thereby preempting such laws. Further, “laws banning discrimination . . . by any city [etc.]” (italics added) can mean laws that prohibit discrimination on the part of any city, etc., or, as the parties assume, laws that are enacted by any city or other
As noted earlier, the FEHA is the product of a legislative amalgamation of two separate acts, the FEPA (former Lab. Code, § 1410 et seq.), which applied exclusively to employment discrimination, and the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq.) (hereafter fair housing act), which banned discrimination in housing. Thus, subdivision (c) is derived from a blending of two analogous provisions. Former Labor Code section 1431, the original FEPA “repeal” section, stated a legislative intent to preserve other applicable state laws and to displace local regulation of employment discrimination, with a one-year grace period for pending or undetermined enforcement proceedings brought thereunder.
The equivalent fair housing provision (former Health & Saf. Code, § 35743) was phrased quite differently, and it is there we find the origins of the ambiguous phrases in subdivision (c). The provision stated: “As it is the intention of the Legislature to occupy the whole field of regulation encompassed by the provisions of this part, the regulation by law of discrimination in housing contained in this part shall be exclusive of all other laws banning discrimination in housing by any city, city and county, county, or other political subdivision of the State. Nothing contained in this part shall be construed to, in any manner or way, limit or restrict the application of Section 51 of the Civil Code.” (Italics added.)
In 1978, the Fair Employment Practices Commission (FEPC) proposed and the Legislature enacted a series of procedural and “clean up” amendments to the FEPA that included replacing former Labor Code section 1432. The original text of former Labor Code section 1432, with its one-year grace period for proceedings under local regulations (see fn. 7, ante), was clearly out of date. In its place the Legislature adopted a provision nearly identical to its counterpart in the fair housing act, the aforementioned former Health and Safety Code section 35743, whose parallel language—including the stated intent to “occupy the field” and the Civil Code section 51 savings clause—served as its pattern.
As the foregoing history demonstrates, both of the predecessor statutes to section 12993(c) indicate a legislative intent to preempt only local law. The reference to Civil Code section 51 in subdivision (c), therefore, provides no support for the view that the FEHA was intended to displace state laws relating to employment discrimination. Its purpose, rather, was to retain local enforcement authority against housing discrimination. Thus understood, subdivision (c) is harmonized with section 12993, subdivision (a),
Defendant also relies on the “new right—exclusive remedy” rule of statutory construction and its counterpart, the doctrine of “preexisting right— cumulative remedies,” to infer a lеgislative intent to cover the field of employment discrimination. As a general rule, where a statute creates a right that did not exist at common law and provides a comprehensive and detailed remedial scheme for its enforcement, the statutory remedy is exclusive. (Flores v. Los Angeles Turf Club (1961)
Defendant’s reliance on the above-stated rules of statutory interpretation is misplaced. First, as noted earlier, in this respect the pertinent language of the FEHA is plain and its meaning unmistakable: the act expressly disclaims any intent to repeal other state laws relating to discrimination, legislative or otherwise. Where statutory language is clear, a court need not and should not rely upon artificial canons of construction. (Solberg v. Superior Court, supra,
Second, as discussed above, we have long recognized that the common law provides a variety of means independent of the FEHA or its predecessor, the FEPA, to redress injuries arising from discrimination in employment. (Brown v. Superior Court, supra,
Finally, we reject defеndant’s argument that the FEHA is such a “general and comprehensive legislation” as to imply a legislative intent to displace or preclude employees’ common law rights. The general rule is that statutes do not supplant the common law unless it appears that the Legislature intended to cover the entire subject. (I. E. Associates v. Safeco Title Ins. Co. (1985)
Although this and other courts have on occasion described the FEHA as a “comprehensive scheme” for combating employment discrimination (e.g., Brown v. Superior Court, supra,
Employment discrimination may, of course, result in injury entitling an employee to damages in a civil action under the act. (§ 12965, subd. (b); Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at pp. 220-221.) The same conduct, however, may also simultaneously cause additional injury outside the ambit of statutory protection. For example, as alleged in this case, an employer’s discriminatory actions may constitute assault and battery or outrageous conduct redressable under a theory of intentional infliction of emotional distress.
Defendant relies on several Court of Appeal and federal decisions (applying California law) that have held the FEHA provides the exclusive remedy for injuries relating to discrimination in employment. Illustrative of one line of cases is Ficalora v. Lockheed Corp. (1987)
What the Ficalora v. Lockheed Corp. court overlooked in its analysis is that the intent expressed in subdivision (c) is not simply to “occupy the field,” but to occupy the field “exclusive of all other laws ... by any city, city and county, county, or other political subdivision of the state, . . .” (§ 12993(c), italics added.) As shown, the intent was to preempt local anti-discrimination law, not state law. Indeed, as previously noted, the FEHA elsewhere expressly disclaims any intent to repeal other applicable state laws, statutory or otherwise. (§ 12993, subd. (a); sеe Froyd v. Cook, supra,
Illustrative of a second line of cases is Strauss v. A. L. Randall Co. (1983)
In determining legislative intent, however, Strauss and its progeny needlessly invoked the “new right—exclusive remedy” doctrine of interpretation. Because the FEHA, like its predecessor the FEPA, expressly disclaims any intent to displace other relevant state laws, no resort to interpretative aids is required and the existence vel non of a preexisting cause of action for the particular discrimination is irrelevant. While the FEHA conferred certain new rights and created new remedies, its purpose was not to narrow, but to expand the rights and remedies available to victims of discrimination. (§§ 12993, 12920.) Under the act, plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation.
In sum, we hold that the FEHA does not displace any causes of action and remedies that are otherwise available to plaintiffs.
C. Exhaustion of FEHA Administrative Remedies
The second question we address is whether, notwithstanding the availability of common law remedies for injuries relating to employment
Neither party disputes that, with respect to a cause of action under the act, exhaustion of administrative remedies is required before initiating a private civil action. The rule is that where a right is given and a remedy provided by statute, the remedy so provided must ordinarily be pursued. (People v. Craycroft (1852)
Section 12965, subdivision (b) provides that if the Department does not issue an accusation within 150 days after the filing of a complaint, or if the Department earlier determines that no accusation will issue, it shall promptly issue a notice indicating that the complainant “may bring a civil action under this part . . . within one year from the date of such notice.” Commenting in prior decisions on the availability of judicial relief under this provision, we have stated that the right-to-sue letter is a prerequisite to judicial action. (See Commodore Home Systems, Inc. v. Superior Court, supra,
We agree that exhaustion of the FEHA administrative remedy is a precondition to bringing a civil suit on a statutory cause of action. In cases appropriate for administrative resolution, the exhaustion requirement serves the important policy interests embodied in the act of resolving disputes and eliminating unlawful employment practices by conciliation (see Yurick v. Superior Court, supra,
Because, however, our prior decisions have been concerned with the procedures and remedies available to a litigant bringing a statutory cause of action “under this part” (§ 12965, subd. (b)), they are authority only for the narrow proposition that the FEHA administrative prоcess must be pursued with respect to the specific rights and remedies enumerated in the act. Whether an aggrieved employee must exhaust administrative remedies before seeking damages on nonstatutory grounds remains an open question.
Citing Abelleira v. District Court of Appeal (1941)
Abelleira v. District Court of Appeal, supra,
As Witkin explains: “The administrative tribunal is created by law to adjudicate the issue sought to be presented to the court. The claim or ‘cause of action’ is within the special jurisdiction of the administrative tribunal, and the courts may act only to review the final administrative determination. If a court allоwed a suit to be maintained prior to such final determination, it would be interfering with the subject matter jurisdiction of another tribunal.” (3 Witkin, Cal. Procedure, Actions, supra, § 234, at p. 265, italics in original.)
Defendant, however, argues that the policy considerations underlying the exhaustion doctrine justify extending the requirement to related constitutional and common law claims not specifically within the agency’s jurisdiction. He cites Westlake Community Hosp. v. Superior Court (1976)
We agree the exhaustion doctrine, when applicable, serves important policy considerations. The issue before us, however, is not the merits of the doctrine, but whether in the first instance the doctrine applies to the case at hand. On this point, Westlake —involving exhaustion of a private association’s internal remedies—is not determinative. As we stated in Westlake, “From the earliest decisions reviewing actions of voluntary private associations,. . . our courts have recognized the applicability of the exhaustion of remedies doctrine in this context.” (
The “context” to which Westlake properly applies is where the party or entity whose “quasi-judicial” determination is challenged—be it hospital, voluntary private or professional association, or public entity—has provided an internal remedy. (See, e.g., Holderby v. Internat. Union etc. Engrs. (1955)
The reason for the exhaustion requirement in this context is plain. As we stated in Pinsker v. Pacific Coast Society of Orthodontists, supra,
In Karlin v. Zalta, supra,
Unlike in the cited cases, the FEHA does not have a “pervasive and self-contained system of administrative procedure” (Karlin v. Zalta, supra,
We conclude, therefore, that although an employee must exhaust the FEHA administrative remedy before bringing suit on a cause of action under the act or seeking the relief provided therein, exhaustion is not required before filing a civil action for damages alleging nonstatutory causes of action.
D. Tortious Discharge Against Public Policy
Finally, we address defendant’s contention that the Court of Appeal erred in concluding that plaintiffs may amend their complaint to plead a cause of action for wrongful discharge in contravention of public policy.
Plaintiffs assert that they were continually subjected to sexual harassment and demands for sexual favors by defendant, and that their refusal to tolerate that harassment or acquiesce in those demands resulted in the wrongful discharge of Ms. Maloney and the constructive wrongful discharge of Ms. Rojo. Plaintiffs further assert that a fundamental public poliсy against sex discrimination in the workplace may be found in article I, section 8 of the California Constitution (hereafter article I, section 8), which provides: “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”
Defendant advances several arguments against recognition of plaintiffs’ wrongful discharge claims. He contends that the “comprehensive” remedial scheme for combating employment discrimination established by the FEHA either precludes independent common law claims or renders such claims unnecessary and redundant. This argument we considered and rejected in part B of the preceding discussion.
Defendant also vigorously opposes the proposition that a fundamental public policy against sex discrimination in employment may be found in article I, section 8, or indeed in any other statutory or constitutional provision of this state. Citing Sail'er Inn, Inc. v. Kirby (1971)
The public policy against sex discrimination and sexual harassment in employment, moreover, is plainly one that “inures to the benefit of the public at large rather than to a particular employer or employee.” (Foley, supra,
In sum, defendant’s discharges of plaintiffs on the grounds alleged contravened a fundamental, substantial public policy embodied in the state Constitution, a public policy, by whatever measure, that was “ ‘firmly established’ ” (Foley, supra, 47 Cal.3d at pp. 668, 670, fn. 11) at the time plaintiffs were discharged. Consequently, whatever the parameters of the Tameny
In light of our conclusion, we reject defendant’s argument that Tameny claims should be limited to situations where, as a condition of employment, the employer “coerces” an employee to commit an act that violates public policy, or “restrains” an employee from exercising a fundamental right, privilege or оbligation. The contention is without merit. Although decided in the factual contexts of coercion (Tameny, supra, 27 Cal.3d 167) and restraint (Foley, supra,
Plaintiffs’ allegations, in any event, easily satisfy defendant’s own criteria. Plaintiffs assert, in essence, that they were terminated for refusing to engage in conduct that violated fundamental public policy, to wit, nonconsensual sexual acts. (See, e.g., Pen. Code, § 243.4.) They also assert, in effect, that they were discharged in retaliation for attempting to exercise a fundamental right—the right to be free from sexual assault and harassment. Under either theory, plaintiffs, in short, should have been granted leave to amend to plead a cause of action for wrongful discharge in violation of public policy.
The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Mosk, J., Eagleson, J., and Andersоn (Carl W.), J.,
Notes
Unless otherwise indicated, all further statutory references are to the Government Code.
The complaint alleged, inter alia, that Kliger committed various acts against plaintiffs. As to Emma Rojo, these included grabbing and touching her breasts, and kissing and French-kissing her; as to Teresa Maloney, the acts alleged included blocking her exit from his office, forcibly grabbing her groin, rubbing her legs, and grabbing her hand, forcing her to feel his groin.
“This part” refers to part 2.8 of title 2, division 3 (§ 12900 et seq.), which comprises the FEHA.
Although the FEHA cites harassment as an unlawful employment practice separate from discrimination (§ 12940, subd. (h)), the regulations and Commission decisions recognize that sexual harassment is a form of sex discrimination in employment. (See Cal. Code Regs., tit. 2, §§ 7286.5, subd. (f)(3), 7287.6, subd. (b), 7291.1, subd. (f)(1); Dept. Fair Emp. & Hous. v. Del Mar Avionics (1985) No. 85-19, FEHC Precedential Decisions 1984-1985, CEB 16, p. 18; Dept. Fair Emp. & Hous. v. Ambylou Enterprises, Inc. (1982) No. 82-06, FEHC Precedential Decisions 1982-1983, CEB 3, pp. 5-6.) We note, however, that as an employer of fewer than five persons, defendant is subject to the prohibitions of the FEHA with respect only to harassment. (§§ 12926, subd. (c), 12940, subd. (h).)
The Commission has defined sexual harassment as “vеrbal, physical, or sexual behavior directed at any individual because of her, or his, gender.” (Ambylou Enterprises, Inc., supra, FEHC Dec. No. 82-06, CEB 3, p. 6; see also Peralta Community College Dist. v. Fair Employment & Housing Com., ante, p. 45, fn. 2 [
Civil Code section 51, the Unruh Civil Rights Act, provides in relevant part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, col- or, religion, ancestry, national origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
The following analysis is largely based on the study by Oppenheimer, Employment Discriminatiоn and Wrongful Discharge: Does the California Fair Employment and Housing Act Displace Common Law Remedies? (1989) 23 U.S.F. L.Rev. 145, 174-177, as well as the amicus curiae brief of the N.A. A.C.P. Legal Defense and Educational Fund, Inc.
Former Labor Code section 1431 (later amended and renumbered as former Lab. Code, § 1432 [Stats. 1967, ch. 1506, § 3, pp. 3574-3575]) provided:
“The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this act shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this State relating to discrimination because of race, religious creed, color, national origin or ancestry.
“Nothing contained in this act shall be deemed to repeal or affect the provisions of any ordinance relating to such discrimination in effect in any city, city and county, or county at the time this act becomes effective, insofar as proceedings theretofore commenced under such ordinance or ordinances rеmain pending and undetermined. The respective administrative bodies then vested with the power and authority to enforce such ordinance or ordinances shall continue to have such power and authority, with no ouster or impairment of jurisdiction, until such pending proceedings are completed, but in no event beyond one year after the effective date of this act.” (Stats. 1959, ch. 121, § 1, pp. 2004-2005.)
Former Labor Code section 1432, as amended in 1978, read: “(a) The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or any other law of this state relating to discrimination on the bases enumerated in this part. [11] • • • [HI (c) While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment by any city, city and county, county, or оther political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code.” (Stats. 1978, ch. 1254, § 19, pp. 4077-4078.)
Following Strauss, a number of federal decisions have likewise held that because no cause of action for age discrimination predated the FEPA, the statutory remedy supplants any common law cause of action based on the discrimination. (E.g., Salgado v. Atlantic Richfield Co. (9th Cir. 1987)
In so holding, we express no opinion concerning the result in either Ficalora v. Lockheed Corp., supra,
Since the parties have not raised the issue, we likewise do not decide whether any of the common law causes of action are barred by the exclusive remedy provisions of the workers’ compensation law (Lab. Code, §§ 3600, 3601, 3602). (Cf. Shoemaker v. Myers, supra, ante, p. 1.)
According to the director of the Department, if a complainant requests a right-to-sue letter in order to bring a civil suit, current Department policy is to issue the letter only after the Department has invited the respondent to make settlement olfers and settlement is not achieved. (Letter of June 9, 1989, from the director of the Department to the Chief Justice of the Supreme Court in support of the petition for review.)
The Commission, we observe, is in agreement with this conclusion, as evidenced in its amicus curiae brief urging that exhaustion is not required.
Sail'er Inn, Inc., which concerned the forerunner to article I, section 8 (Cal. Const., former art. XX, § 18), held: “Section 18 constitutes a restraint upon the law-making power of the state, and legislative enactments contrary to its provisions are void.” (
Presiding Justice, Court of Appeal, First Appellate District, Division Four, assigned by the Chairperson of the Judicial Council.
Concurrence Opinion
I concur.
I agree with the majority that an employee may bring a common law action for injuries arising from sexual discrimination or harassment without exhausting remedies under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). However, for the reasons stated in my dissenting opinion in Peralta Community College Dist. v. Fair Employment & Housing Com., ante, page 40 [
Kennard, J., concurred.