EMMA ROJO et al., Plaintiffs and Appellants, v. ERWIN H. KLIGER et al., Defendants and Respondents.
No. S010142
Supreme Court of California
Dec. 20, 1990
52 Cal. 3d 65
Patten, Faith & Sandford and Lorraine Grindstaff for Plaintiffs and Appellants.
Joseph Posner, David C. Anton, Margaret E. Roeckl, Bird, Marella, Boxer, Wolpert & Matz, Robert J. Rose, Mark T. Drooks, Julius LeVonne Chambers, Patrick O. Patterson, Bill Lann Lee, Theodore M. Shaw, Christine A. Littleton, Jon W. Davidson, John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, Marian M. Johnston and Louis Verdugo, Jr., Deputy Attorneys General, as Amici Curiae on behalf of Plaintiffs and Appellants.
Knapp, Petersen & Clarke, Andre E. Jardini, Alan C. Arnall, Thomas H. Ott, Bryan H. Baumeister and David J. Cohen for Defendants and Respondents.
Paul, Hastings, Janofsky & Walker, Paul Grossman, Lawrence A. Michaels, Jennifer A. Glazer, Proskauer, Rose Goetz & Mendelsohn, Jeffrey A. Berman and Steven G. Drapkin as Amici Curiae on behalf of Defendants and Respondents.
OPINION
PANELLI, J.- We granted review in this case to determine whether the Fair Employment and Housing Act (
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 dеfendant to sexually harassing remarks and demands for sexual favors which had ultimately forced them to leave their employment.2
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 of 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
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
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.”3 (
The broad goal of the FEHA is set forth at
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.4 In addressing this issue we begin, as always, with the language of the statute itself.
“[A] court is to construe a statute so as to effectuate the purpose of the law.” (White v. County of Sacramento (1982) 31 Cal.3d 676, 681 [183 Cal.Rptr. 520, 646 P.2d 191] [internal quotation marks omitted].) However, “[w]hen statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.” (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148].)
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.
It is equally settled that the common law of this state provides any number of remedial theories to compensate for injuries “relating to discrimination” (
Indeed, this court has recognized on many oсcasions 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, 43 Cal.3d 1379, that punitive damages may not be awarded in an administrative adjudication under the act, we stressed that “in appropriate cases a complainant can seek punitive damages by filing an independent civil action alleging tort causes of action either with or without an FEHA count.” (Id. at p. 1403; accord Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 220; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498 [86 Cal.Rptr. 88, 468 P.2d 216].) As we explained in State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 431 [217 Cal.Rptr. 16, 703 P.2d 354]: “The FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the
By expressly disclaiming a purpose to repeal other applicable state laws (
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
The savings clause set forth in
Defendant also cites
As written,
Second, the stated legislative intent to occupy the field “exclusive of all other laws banning discrimination . . . by any city, city and county [etc.]” (
As noted earlier, the FEHA is the product of a legislative amalgamation of two separate acts, the FEPA (former
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
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
As the foregoing history demonstrates, both of the predecessor statutes to
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 legislative intent to cover the field of employment discrimination. As a general rule, where a statute creates а 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) 55 Cal.2d 736, 746-747 [13 Cal.Rptr. 201, 361 P.2d 921]; see Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 301 [188 Cal.Rptr. 159, 35 A.L.R.4th 1015].) But where a statutory remedy is provided for a preexisting common law right, the newer remedy is generally considered to be cumulative, and the older remedy may be pursued at the plaintiff‘s election. (Flores, supra, at p. 747; Hentzel, supra, at pp. 301, 303; see generally 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, §§ 7-8, pp. 38-40.)
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, 19 Cal.3d at p. 198.)
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, 37 Cal.3d at p. 486; Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 220; Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d at pp. 498-500.) In asserting otherwise, defendant relies on the statement in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490 [156 Cal.Rptr. 14, 595 P.2d 592], that “the prohibitions on employment discrimination contained in the [FEHA] are in no sense declaratory of preexisting common law doctrine but rather include areas and subject matters of legislative innovation, creating new limitations on an employer‘s right to hire, promote or discharge its employees.” Read in context, however, the import of this statement is simply that the scope of the FEHA is limited to the categories specifically enumerated in the statute, some of which did not exist before enactment of the act; thus, unlike the Unruh Civil Rights Act, which “represented a codification of the common law principle barring all discrimination by public accommodations,” the FEHA bars discrimination only on the
Finally, we reject defendant‘s argument that the FEHA is such a “general and comprehensive legislation” as tо 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) 39 Cal.3d 281, 285 [216 Cal.Rptr. 438, 702 P.2d 596].) “‘[G]eneral and comprehensive legislation, where course of conduct, parties, things affected, limitations and exceptions are minutely described, indicates a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter.’ [Citation.]” (Ibid. [nonjudicial foreclosure of deeds of trust]; accord Pacific Scene, Inc. v. Penasquitos, Inc., supra, 46 Cal.3d 407, 411 [corporate dissolution]; see Justus v. Atchison, supra, 19 Cal.3d 564, 574-575 [recovery for wrongful death]; Flores v. Los Angeles Turf Club, supra, 55 Cal.2d at p. 746 [legalized horse racing and wagering].)
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, 37 Cal.3d at p. 485; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 865, 868 [193 Cal.Rptr. 760]), in context the statement served to expand, not restrict, the plaintiff‘s rights; the exclusivity of the FEHA was not at issue. (See Brown v. Superior Court, supra, at p. 487 [FEHA venue statute controls when FEHA claim is joined with non-FEHA claim arising out of same facts]; State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at p. 431 [FEHA covers state civil service employees]; Snipes v. City of Bakersfield, supra, at pp. 868-869 [actions under FEHA are exempt from general Tort Claims Act requirements].) An examinаtion of the act supports the view it lacks the comprehensiveness necessary to infer a legislative intent to displace all preexisting or alternative remedies for employment discrimination. For example, with the exception of cases involving harassment, the FEHA applies only to “employers” of five or more persons (
Employment discrimination may, of course, result in injury entitling an employee to damages in a civil action under the act. (
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) 193 Cal.App.3d 489 [238 Cal.Rptr. 360]. In Ficalora, an employee sued her former employer for retaliatory discharge for filing a sex discrimination complaint. The trial court granted the employer summary judgment on grounds the employee had no common law remedy. The Court of Appeal affirmed. Thе court held that the employee‘s sole cause of action was the statutory cause of action: “Even if a common law cause of action existed before retaliation was identified in the [FEHA] as an unlawful employment practice, the Legislature has made clear its intent to ‘occupy the field of regulation of discrimination in employment’ by virtue of the FEHA. (
What the Ficalora v. Lockheed Corp. court overlooked in its analysis is that the intent expressed in
Illustrative of a second line of cases is Strauss v. A. L. Randall Co. (1983) 144 Cal.App.3d 514 [194 Cal.Rptr. 520]. In Strauss, an age discrimination case, the employee filed a civil suit alleging a common law cause of action
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. (
In sum, we hold that the FEHA does not displace any causes of action and remedies that are otherwise available to plaintiffs.10
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) 2 Cal. 243, 244.) The FEHA, moreover, by its terms implies exhaustion is required, and we have so assumed.
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, 209 Cal.App.3d at p. 1123), as well as the salutory goals of easing the burden on the court system, maximizing the use of administrative agency expertise and capability to order and monitor corrective measures, and providing a more economical and less formal means of resolving the dispute (see McKee v. Bell-Carter Olive Co. (1986) 186 Cal.App.3d 1230, 1244-1245 [231 Cal.Rptr. 304]). By contrast, in those cases appropriate for judicial resolution, as where the facts support a claim for compensatory or punitive damages, the exhaustion requirement may nevertheless lead to settlement and serve to eliminate the unlawful practice or mitigate damages and, in any event, is not an impediment to civil suit, in
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” (
Citing Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 [109 P.2d 942, 132 A.L.R. 715], George Arakelian Fаrms, Inc. v. Agricultural Labor Relations Bd. (1985) 40 Cal.3d 654 [221 Cal.Rptr. 488, 710 P.2d 288], and related cases, defendant relies on the rule that “where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (Abelleira, supra, 17 Cal.2d at p. 292; accord George Arakelian Farms, Inc., supra, at pp. 661-662.) As the cited cases illustrate, however, this oft-quoted rule speaks only to the need to exhaust administrative remedies provided for a statutory right and does not govern rights and remedies outside the legislative scheme. (See generally 3 Witkin, Cal. Procedure, Actions, supra, § 234, at pp. 264-265.)
Abelleira v. District Court of Appeal, supra, 17 Cal.2d 280, has been described as the seminal California case establishing the exhaustion doctrine. (Comment, Exhaustion of Administrative Remedies in California (1968) 56 Cal.L.Rev. 1061.) At issue in Abelleira was whether employers who objected to the award of employee benefits under the California Unemployment Insurance Act could seek judicial relief before completing the appeal process under this act. Observing that the Unemployment Insurance Act contained a complete administrative procedure, including an original proceeding and two appeals (17 Cal.2d at p. 291), this court held that under the circumstances, “exhaustion of the administrative remedy is a jurisdic-
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 allowed a suit to be maintained prior tо 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) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (hereafter Westlake), involving an excluded physician‘s failure to pursue internal hospital remedies before filing a civil suit for damages, where we summarized these policy concerns as follows: “In the first place, even if a plaintiff no longer wishes to be either reinstated or admitted to the organization, an exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedure that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved рarty all membership rights . . . . [¶] Moreover, by insisting upon exhaustion even in these circumstances, courts accord recognition to the ‘expertise’ of the organization‘s quasi-judicial tribunal, permitting it to adjudicate the merits of the plaintiff‘s claim in the first instance. [Citation omitted.] Finally, even if the absence of an internal damage remedy makes ultimate resort to the courts inevitable [citation omitted], the prior administrative proceeding will still promote judicial efficiency by unearthing the relevant evidence and by providing a record which the court may review.” (Id. at p. 476.)
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.” (17 Cal.3d at p. 474, citing, e.g., Levy v. Magnolia Lodge, I.O.O.F. (1895) 110 Cal. 297, 307-308 [42 P. 887], and Robinson v. Templar Lodge, I.O.O.F. (1897) 117 Cal. 370, 375-376 [49 P. 170], both cases disapproved on other grounds in Westlake, supra, at p. 479.)
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) 45 Cal.2d 843, 846 [291 P.2d 463] [labor union]; Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 557 [116 Cal.Rptr. 245, 526 P.2d 253] [professional society]; Robinson v. Templar Lodge, I.O.O.F., supra, 117 Cal. 370 [fraternal organization]; Levy v. Magnolia Lodge, I.O.O.F., supra, 110 Cal. 297 [same]; City of Fresno v. Superior Court (1987) 188 Cal.App.3d 1484, 1490-1491 [234 Cal.Rptr. 136] [city]; Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515 [205 Cal.Rptr. 6] [university]; Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 123-124 [185 Cal.Rptr. 878] [state-funded agency]; Holder v. California Paralyzed Veterans Assn. (1980) 114 Cal.App.3d 155 [170 Cal.Rptr. 455] [veterans association].)
The reason for the exhaustion requirement in this context is plain. As we stated in Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at page 557: “[W]e believe as a matter of policy that the association itself should in the first instance pass on the merits of an individual‘s application rather than shift this burden to the courts. For courts to undertake the task ‘routinely in every such case constitutes both an intrusion into the internal affаirs of [private associations] and an unwise burden on judicial administration of the courts.’ [Citation.]”
In Karlin v. Zalta, supra, 154 Cal.App.3d 953, the court held plaintiffs were required to exhaust their administrative remedies under the McBride Act (
Unlike in the cited cases, the FEHA does not have a “pervasive and self-contained system of administrative procedure” (Karlin v. Zalta, supra, 154 Cal.App.3d at p. 983) for general regulation or monitoring of employer-employee relations so as to assess or prevent discrimination or related
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.12 An employee, of course, may elect to waive the statutory cause of action and remedies, and proceed directly to court on the common law claims (see Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d 493, 500, fn. 7); alternatively, the employee may pursue both the administrative and the judicial avenues, either sequentially (e.g., Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1277-1278 [261 Cal.Rptr. 204]; Monge v. Superior Court (1986) 176 Cal.App.3d 503, 507 [222 Cal.Rptr. 64]) or simultaneously, in the latter case amending his or her complaint to join the FEHA cause of action once the Department has issued the right-to-sue letter (e.g., Brown v. Superior Court, supra, 37 Cal.3d at p. 481).
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 policy against sex discrimination in the workplace may be found in article I, section 8 of the California Constitution (hereаfter 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, 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) 5 Cal.3d 1, 8 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351], defendant asserts that the constitutional provision applies only to “state action” and has no application to privаte sector employers.13 Contrary to defendant‘s assertion, we have previously assumed that article I, section 8 covers private as well as
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, 47 Cal.3d at p. 669.) No extensive discussion is needed to establish the fundamental public interest in a workplace free from the pernicious influence of sexism. So long as it exists, we are all demeaned. As
In sum, defеndant‘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 obligation. The contention is without merit. Although decided in the factual contexts of coercion (Tameny, supra, 27 Cal.3d 167) and restraint (Foley, supra, 47 Cal.3d 654), neither Tameny nor Foley excludes wrongful discharge claims based solely on sex discrimination or sexual harassment. To the сontrary, the cases strongly imply that an action for wrongful discharge will lie when, as here, the basis of the discharge contravenes a fundamental public policy. (See Foley, supra, at p. 669; Tameny, supra, at pp. 176-177; see also Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 220.)
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.,
The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Mosk, J., Eagleson, J., and Anderson (Carl W.), J.,* concurred.
BROUSSARD, J.-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 (
* Presiding Justice, Court of Appeal, First Appellate District, Division Four, assigned by the Chairperson of the Judicial Council.
Kennard, J., concurred.