*1 Aug. No. 24716. [S.F. 1985.] al.,
STATE PERSONNEL BOARD v. et Plaintiffs and Respondents, et al., FAIR EMPLOYMENT AND HOUSING COMMISSION Defendants and Appellants; al.,
RICHARD ARTHUR AMON et
Real Parties in Interest and Respondents.
Counsel Garcia, Rogers, Quinn, Cox, & O’Donnell E. David A. Joseph, Marjorie Fisher, Gelb, Steve Guerra, Owyang, Joy Mark Prudence Marjorie Barnes, McCutchen, Enersen, Robert Poppink, L. Brown & James Doyle, Hunt, L. Ray and Richard D. Wong Zimmerman for Defendants and Appellants. Sullivan, Sloan,
Dennis M. Biren, Andrea L. Christina Hall and Jeffrey Kramer & Hall Amici on Curiae behalf of and Defendants Appellants.
John General, K. de Van and Kamp George Attorneys Deukmejian, Hill, N. General, Eugene Assistant Carol Hunter and Attorney Talmadge Jones, R. General, Deputy Attorneys for Plaintiffs and Respondents.
Joan Graff, Messing Linda J. Patricia for Real Krieger and Shiu Parties Interest and Respondents.
Opinion BROUSSARD, J. case the whether the presents question agencies This charged carrying out the California Fair and Act Housing Employment (Gov. Code, 12900 et exercise jurisdiction seq.)1 constitutionally over state civil service employees. 1All statutory references are to indicated. the Government Code unless otherwise In Employment the Fair Housing Practice Act the Act were and Rumford Fair combined to the Employment seq.), form Fair the Housing pursuant and Act et (Stats. 1980, 3138). Governor’s Reorganization change Plan No. ch. This abol- ished the Division of Fair Employment Employment the Fair Practices Com- Practices and
mission, Relations, both within the the Department of Industrial and recreated them as Department Employment of Fair Housing Employment Housing and and Fair and Com- mission, respectively.
Real state service interest are civil parties applicants on the basis who claim were denied because of they positions investigated have to have their claims handicap. They sought physical Housing and of Fair and adjudicated Department Employment (DFEH or Commission Department) Housing and Fair and Employment claims, (FEHC or State Commission). to their respondent opposition and FEHC Personnel Board has secured an DFEH injunction prohibiting all real from well as the parties’ complaints processing complaints—as The State Per- civil service state. applicants employees throughout Consti- (the Board) sonnel Board that article VII of the California asserts examination tution aifords it exclusive over all jurisdiction aspects claims that its juris- selection of service employees.2 diction cannot be and FEHC without shared with DFEH concurrently of the merit selection “fragmentation process.” fractionalization To the Legis- resolve this we must decide whether jurisdictional dispute coverage lature intended to include civil service within employees so, and, (FEHA Act) Fair if whether Housing Act Employment acted them. unconstitutionally so Legislature including *5 Background Facts and Procedural 1977, real In Board in announcement response published Amon, Williams ap- in interest Richard Frederick Fade and Edith parties Pa- as Highway traffic officer cadets with the California plied positions examinations, been and having trol. all written and oral Having passed list, examination. on the they physical underwent placed eligible required medical Each was on of the Board’s the basis subsequently disqualified mild deuter- for the Amon because of standards was position. disqualified his in (i.e., colorblindness); early changes mild Fade because of anopia osteoarthritis; and Williams thoracic characteristic spine hypertrophic a weight to alleviate surgery because she had intestinal undergone bypass problem.
Amon, their disqualifica- Fade and each sent letters protesting Williams tion, rather than “medical appeals” and the Board treated their as protests part: provides, 2Article VII in relevant promotion (b): permanent appointment Section subdivision “In the civil service examina- competitive general system shall be made under a based on merit ascertained tion.” and, by (a): statutes the civil service Section subdivision “The board shall enforce classifications, members, periods and majority prescribe probationary vote of its shall all statute, actions.” adopt disciplinary rules review other authorized on the Fade complaints handicap.3 discrimination basis physical their Williams their where the pursued appeals hearing, upheld Amon before disqualifications. did not his in pursue protest proceedings Board.
Each of the real After also filed with DFEH. parties complaints timely investigation, DFEH found cause to and the Califor- believe that the Board nia Patrol Highway had committed an unfair It issued practice. accusations charging Board and the Patrol Highway on the basis of physical handicap.
A case, was noticed could be hearing in Fade’s but before it held Board filed this action in DFEH and from court to FEHC superior enjoin exercising jurisdiction over real claims. The court entered a parties’ judg- ment permanently DFEH and FEHC “from enjoining initiating, accepting, or accusations, issuing further any investigations, notices of complaints, hearing, or other or subpoenas, any administrative these or legal process other cases involving state within state civil service agencies agencies under system article VII.” court its on based decision article VII Constitution, our which it interpreted as to the Board “exclusive granting jurisdiction” over all matters involving state service employees.
Subsequent
case,
trial
court’s
issued a
judgment
this
we
decision
unrelated case of
3d
Legal Foundation v. Brown
29 Cal.
Pacific
624 P.2d
we
Legal Foundation
1215].
rejected the “exclusive
on
*6
jurisdiction”
of article VII relied
interpretation
here,
the
below,
trial court
For the reasons discussed
the impli
cations of our decision in
Foundation
us to
the
lead
reject
Board’s assertion of exclusive jurisdiction over civil service discrimination
complaints.
after
the
Accordingly,
that the
intended
determining
Legislature
FEHA to cover state civil service
the
of
we reverse
employees,
judgment
the trial court and dissolve the
DFEH
injunction entered
and FEHC.
3In a
appeal”
inquires:
(1)
“medical
the
the
complainant
whether the
in fact has
condition;
disqualifying
(2)
job-related.
medical
and
whether the medical criterion is
36,
(1985)
MacPhail v. Court Appeal
post,
Cal.Rptr.
page 454
I. state’s realization the The FEHA is a scheme for the comprehensive of all and “to and the public policy protect safeguard right opportunity or seek, obtain, discrimination and hold without persons employment color, race, creed, an national origin, on account of abridgment religious condition,[5] status, or sex medical marital cestry, physical handicap,[4] (§ two administrative 12920.) To out this the Act creates carry age.” policy, DFEH, and conciliatory prose bodies—the which performs investigatory, and five- in the complaints, cutorial functions relation discrimination FEHC, functions. rulemaking which member performs adjudicatory 12930, 12935.) A to have suffered (§§ who claims person DFEH, then file a the which is may empowered complaint discovery take investigate, subpoenas engage issue depositions, letter, the allows The issue which DFEH can to sue” procedures. “right 12965, (§ action under the FEHA. pursue a court complainant private if it (b).) accusation subd. the can a written DFEH issue Alternatively, con is be resolved through determines that valid cannot complaint 12965, on accu as (a).) ciliation. subd. The DFEH acts prosecutor com (which argues sation is the of a civil complaint) equivalent before FEHC. case plainant’s 12926, (h) including “impair 4“Physical handicap” is as defined section subdivision amputation sight, hearing, physical ability or or because speech, impairment ment coordination, requires special any impairment or loss of or or which function other health disabilities, “handicap” present not limited to educational related services.” term presently have no physical may handicap also in the future but but includes conditions “that ” (American Housing Employment Com. disabling effect. Co. v. Fair & National Ins. 1151].) 32 Cal.3d P.2d as a individual” Regulations promulgated by “handicapped define a Commission further activities,” or life person handicap “substantially major whose limits or more physical one (Cal. handicap. handicap, “regarded having” “has a of such who record” or who Code, 7293.6, (j).) Admin. tit. subd. § who can reject an individual regulations, employer Under the Commission’s injury, long as individual presently perform job based on a risk of future so duties (to on an individual perform length of be determined job
is able to over a reasonable time Code, 7293.8, basis). (Cal. (d).) Admin. tit. subd. employer only if the employer may handicapped persons on basis class An exclude all, job “all, perform *7 the proves substantially persons or in that class are unable Com. (Sterling Employment Practice safely Transit Co. v. Fair efficiently.” duties 2, 7286.7, Code, 791, 548]; (1981) tit. Cal.Rptr. 121 Cal. Admin. Cal.App.3d § 797 [175 (a).) subd. are persons who handicapped employer may An also refuse individual or safety of themselves endangering health and perform job unable to the without the duties Com., (§ 12940, (a)(1); Sterling Employment Practice subd. Transit Co. v. Fair others. 798-799.) supra, 121 Cal.App.3d 12926, (f) including only health as 5“Medical subdivision condition” defined section cancer, has person which a diagnosis of impairments “related to or with a associated cured, service.” competent been rehabilitated or based on medical
429 FEHC and desist The has a number of remedial It can issue cease powers. reinstatement, orders and can and back hiring, pay. order promotion, 12970, subd. the FEHC award (a).) compen- The whether can question us in Commodore Home satory punitive damages by Sys- was reserved 211, 270, tems v. Superior (1982) Cal.Rptr. Court 32 Cal.3d 215 649 [185 912], P.2d where aby we held that such be awarded superior damages order, in a court action under the Once the FEHC an private FEHA. issues Proc., (Code 1094.5.) it is reviewable in court. Civ. superior FEHC The has include several functions besides which adjudication, pro- Act, rules and the technical mulgating regulations implement providing assistance, and work- gathering statistical data on public employment force (§§ state. 19702.5.) overview,
From this brief whether we turn to the civil question service are included employees within the framework of the Act. To deter mine on Legislature’s intent this we first turn to question language of the FEHA itself. Act include both manifests intent to clearly public private within its Section subdivision employers scope. (c) defines the term as as here “employer” follows: “‘Employer,’ except inafter provided, includes or more any five person regularly employing per sons, or any as an person acting or agent indirectly; an employer, directly state any political Thus, or civil subdivision and cities.” thereof recognized by (1967) the Courts of in Hollon v. Pierce 257 Appeal Cal.App.2d 808], and Northern v. Fair Cal.Rptr. Inyo Hosp. [64 Practice Emp. 872], Com. Cal.App.3d Act, terms, by its covers all of the “state.” employees
The Board nevertheless that the reference to “state” within the argues definition of employer was to refer to merely intended Legislature those state agencies who are the civil employing workers from ser- exempt This vice. permits the Board to exercise exclusive over civil jurisdiction service employees, and DFEH and over FEHC exercise ex- jurisdiction noncivil empt, service employees.6 view the unambiguous statement of intent embodied in legislative
the definition of we cannot of that defini- “employer,” accept partition tion urged It Board. that the could have inconceivable Legislature 130,000 silently excluded civil when it servants from its pro- contemplation vided that “state” would be the Act. covered employees 130,000 6The informs there approximately us that are classified service em 89,000 ployees, and exempt employees in state service. *8 430 service within
Further evidence of to the civil intent include legislative re- of and recordkeeping the the Act is inferred from the Act’s coverage to retain employ- Section 12946 porting requirements. requires employers The Board ment other for a of two years. and records applications period is in Personnel Board is mentioned this section: State specifically “[T]he instead, and shall maintain from the retention exempt two-year requirement such records and files for a of one If the Board’s period year.” FEHC, no be and there would decisions were reviewable DFEH Board. on the reason for the Act to impose recordkeeping requirements Furthermore, Civil Act itself to submit the Board the Service required state agency to the for each Commission affirmative action plans 19702.5, each within (§ (a)) surveys subd. and statistical of employees 19702.5, the Act authority If had no to enforce (b)). subd. FEHC agency service, be over the state civil would superfluous. these requirements the recordkeeping reporting Board asserts that the purpose FEHC to determine whether only mentioned above is to allow requirements admittedly whom the Commission county municipal employers—over of mi- have in the area (presumably does jurisdiction—are “keeping pace” for no state The Board offers nority support the civil service. hiring) notion, we face inclusion explicit this cannot it the of the Act’s accept of state within its employees scope. is that the fact
Whatever the Board make at this point, protestations inAct from Fair Practices years for adoption Employment acknowledged the Board 19597 until the initiation of this lawsuit in civil Act within the state of DFEH and FEHC to enforce the power hand- in an official service. An of this is found example acknowledgment its continuing book in which the Board investigators expressed com- [regarding rules policy “nothing [Board] a complaint from filing or plaint procedures] precludes employees applicants Commission, or the Equal with the Fair Practices Employment California court action.” Commission or from Opportunity bringing Employment added.)8 (Italics ante, 1959, chapter pages 121 at 1999-2005. See footnote 1.
7Statutes jurisdiction in a found example acknowledgment 8Another of concurrent the Board’s charge right bring regarding employees memorandum how to advise state of their Housing Act Employment under the Fair and other statutes: (F.E.P.C.), Op- Employment Employment Equal Practices “Advisement Access to Fair (EEOC), portunities Board]: and SPB Personnel [State Commission set the de- representative or which forth complainant “All notices his/her written complainant, deny rule Department complaint or otherwise cision this right the matter informing complainant of to address contain a his/her shall statement SPB, and related compliance appropriate rights agency state and/or (Italics added.) limits.” time *9 Furthermore, investigating, since the DFEH has been actively pros- 828 administrative ecuting conciliating complaints approximately named the that have been filed state 127 of which have against agencies, in the cases of Board itself as a Prior to the accusations filed respondent. Amon, filed formal (real interest), Fade and Williams DFEH had parties Because accusations of discrimination in three cases. state against agencies FEHC never made a final of discrimination against determination service, with the the Board asserts that in the it only cooperated past DFEH, own. activities of them as a to its investigatory using supplement effect, The Board claims that the to this but had agencies “agreement” is unable to In the face such an point any writing evidencing agreement. of the Board’s with the fair past history agen- cooperation cies, we decline to infer this agreement.
The Board urges that it is frivolous and wasteful to make two forums However, available to discrimination where one would suffice. complainants schemes, given differences between the statutory Legislature’s two FEHA, desire to include state within the of the notwith employees purview their standing of the Civil coverage by antidiscrimination provisions Act, Service is understandable.9 The enforce procedures, protections ment services available to FEHA be discrimination claimants under the go yond those available under the Civil Service Act. The intent Legislature’s was to give public the same in the battle employees against tools employ ment discrimination are available to private employees.
FEHA was meant to or be supplement, by, existing supplant supplanted remedies, antidiscrimination in order to the maximum give op employees to vindicate portunity their civil discrimination: rights “Nothing contained in this shall be deemed of the part any to repeal provisions Civil Law or of Rights other law of this state to discrimination any relating race, creed, color, because of religious national origin, ancestry, physical condition, status, medical (§ subd. handicap, marital sex or age.” (a).) acts,
The differences between the two described the Board though “miniscule,” are manifold from the of the discrimination vic- perspective “sex, race, creed, prohibits religious 9The Civil Service Act discrimination on the basis of color, status, origin, ancestry, national it can be shown physical handicap marital unless particular (a).) that the handicap job related.” subd. age The Civil Service Act also on the basis of contains restrictions on discrimination (§ 19700) (§ 19701). and blindness and colorblindness *10 tim.10 of the Civil We with the of the two acts. The begin purposes purpose not on Act is to that office are made Service ensure state appointments the merit, the order to basis of but on the in preserve basis patronage, 18500.) The (See and of state service. economy efficiency purpose § constitutionally FEHA the is to effective remedies for vindication provide on the discriminatory civil and to eliminate recognized rights, practices race, creed, color, basis religious national origin, ancestry, physical 12920, condition, status, (See medical marital sex and handicap, age. §§ Const., 12921; I, have Cal. art. The Commission and Department § the years remedying of administrative in expertise solely prevention discrimination, in this more expertise thus have rights specialized area than does the Board.
The DFEH to discrimination provides complainants enforcement services FEHA, that Under the do not have a in the civil service system. counterpart and, where the bears the Department expense investigating, conciliating (§§ claimant. 12961- the action on behalf of the necessary, prosecuting 12963, from of an 12963.1-12963.7.) attorney This includes the services 12969.) If (§ the the case at no to the claimant. try Department expense favor, must there- the Commission Department decides the claimant’s the is obeying after a fully conduct review to that the employer see compliance (§ 12973.) Commission’s order. Act. Civil These are under the Service enforcement services not available not by filed with the Board are and conciliated Appeals investigated initially (the neutral, DFEH, same state agency outside like the but agency Code, tit. Cal. Admin. that with discrimination. employer) charged 547.1-547.2.) Act, not pro- are employees Under Civil Service §§ con- tected during from disclosure of confidential information obtained Moreover, 12963.7.) (§ are FEHA. ciliation under the process, they hear- while them at a Board hire complainants may attorney represent (Cal. Code, Admin. cost must bear the themselves. ing 73), they tit. § are also different quite afforded under the FEHA procedural rights from filing complaint, Board procedures. Beginning de- from Board’s internal an adverse employment rules require appeal 64), the FEHA (Board provides cision be filed within 30 rule whereas days organizations briefs curiae from 10The court has received numerous letters and amicus the Civil Service employees protected discrimination under representing groups from experiencing frustration and dissatisfaction organizations allege Act and the FEHA. These support Amici curiae before the Board. attempts prosecute complaints prevented injunction that has position litigation, urging of FEHC in us to dissolve the this procedures. their to FEHA access under Next, (§ 12960.) complainants of one in which to file. year a period not af- right court—a of action in superior the FEHA have a private right case is tried If their (b).)11 subd. the Civil Act. forded Service court, decision an adverse of in before the FEHC instead superior rather evidence reached, review the will court superior independently Employ- v. Fair (Kerrigan FEHC’s adverse decision. than deferring 29]; Code ment Practice Com. 91 Cal.App.3d the su- decisions Proc., contrast, 1094.5.) By reviewing Civ. *11 review standard court is restricted to a “substantial evidence” perior in a reexamination are not to subject under which determinations “[f]actual novo, are if they supported trial de but are to be a court by reviewing upheld 41 (1974) Bd. substantial evidence.” v. State Personnel (Long by 1000, 562].) 1008 Cal.Rptr. Cal.App.3d [116 to rights way
At the the Board less in the hearing, procedural provides the fact that moment is than does the FEHC. Of complainant greatest cross-examination of witnesses there is no or direct examination right Also, and the total not apply, the rules of evidence do hearings. two hours. of a Board extend normally beyond length proceeding may Furthermore, unless a formal decision Board is not to issue required (§ 18682.) While one before is the case is submitted for decision. requested for a full evi- the Board refer a to a officer may given hearing complaint Bd., 41 (see Long supra, Cal.App.3d v. State Personnel dentiary hearing made, 1000, 1005), admission—rarely this referral the Board’s is—by Ad- (See Cal. the referral decision is within the Board’s discretion. totally Code, 2, 67.) min. tit. § contrast, gov- FEHC are full
By always evidentiary proceedings hearings with in accordance erned the California rules of evidence and conducted the California Procedure Act. 11500 et seq.; Administrative review, A record the FEHC is required facilitate preserved judicial law in a conclusions of to issue decision forth of fact and setting findings is, 11517, (b), 11518.) Cross-examination (§§ contested case. subd. every course, unlike in a Board hearing. permitted, award, section 12970 its the FEHC is authorized making expressly hire, It can an employee. reinstate or require promote employer (b) FEHA, appears to subdivision private right 11The section action under days. lapse of 150 or on the contingent Department’s prosecute, be on the decision not to matter, however, given case in court are practical parties pursue a who intend to their As (See case, 150-day limit. Commodore “right every to sue” letters in even in advance of the (1982) Systems, fn. 8 Superior Home Inc. v. Court Cal.3d 912].) P.2d of back also the victim of with an award pay. compensate Moreover, need for indepen- a who demonstrates a prevailing complainant American Air- dent counsel be DFEH v. awarded fees. may attorney remedies, 83-15, 56-68.) along lines FEHC Dec. No. The same a superior be awarded compensatory punitive damages, FEHA, though punitive court enforcement action under private contrast, (§ 818).12 are not entity By available damages public under the Civil Service Act governed proceedings provisions of back interest, for an award real there no statutory authority was parties authority nor was there pay discriminatorily rejected applicants, fees.13 attorney award of compensatory damages damages, punitive however, forums, The most fundamental difference between the two disinter- neutral body, nature of the forums themselves. The FEHC is a contrast, By ested in the controversy employee. between employer occupies where Board standards the Board discriminatory, are challenged *12 stan- challenged the roles of both defendant and Internal review of judge. not be dards is a the Board should endeavor for and healthy any agency, more However, has this deprived opportunity. Legislature provided dis- of allegedly than this for state has for review It employees. provided FEHC.14 body—the standards criminatory by adjudicatory independent effect, afforded to in and remedies Acknowledging, superior rights FEHA, “dif- argues under the complainants and ferences occur of the private public and are to be in treatment expected as a matter of his- labor sectors.” While the Board correct undoubtedly treat- our to alter the unequal in recent decades has tory, Legislature sought include the ment of the two of enactments. These a series groups through action, Commission, private superior 12The issue court whether the like the (See by this court. compensatory yet award not been resolved punitive damages has 429.) ante at Board, Act the Civil Service parties’ 13Since the time the real claims were heard desist orders authority been to issue cease and give statutory has amended to to the Board (Stats. reinstatement, damages. hiring, pay compensatory and to order promotion, back 6; (e).) ch. subd. § already Board that are Legislature granted statutory powers The fact that the to the has (§ 12970) removing them from the Commission possessed without Commission exclusive forums. Legislature’s provide parallel, further evidence of the intent safeguards employed suggest adopt procedural 14Wedo not here of the that the Board each it, brought every in FEHC claim of discrimination hearings. The Board must address DFEH, are, effect, only prosecutes those while which preselected the FEHC’s cases believe occurred. which there is reason to that discrimination Rather, FEHC remedies Legislature we to make both Board and hold that the intended depriving that there is no basis complainants, available to civil service discrimination employees— private employees panoply rights these the full available to them—as under the FEHA.
435 Act (§§ 3525-3537), Meyers-Milias-Brown Brown Act of 1961 George Act of Relations Educational (§ Employment 3500 et seq.), of 1968 ofAct 1977 Relations (§ et the State seq.), Employer-Employee Relations Education (§ Employer-Employee 3512 et and the seq.), Higher Foundation, supra, 3560 et Act of 1978 seq.). 173, 175-179, pub- to afford acts are designed Cal.3d at These em- only by private of the many rights enjoyed lic employees previously ployees. both a choice to afford established that the made
Having Legislature state the Civil Act and the FEHA to members remedies of Service acted service, whether the Legislature we now turn the question Constitution, in violation of article VII of the California unconstitutionally, in so doing.
II. The Board claims that if the FEHA to civil service employ applies ees, then that act is Article VII provides unconstitutional under article VII. in pertinent part:
Section “In (b): subdivision the civil service permanent appointment on merit ascer- shall be made under a based promotion general system tained examination.” by competitive
Section civil service (a): subdivision “The board shall enforce the and, members, statutes vote of all its shall by majority probation- prescribe statute, classifications, and ary and other rules authorized periods adopt review actions.” disciplinary to it sole ju-
The Board the above sections as granting interprets quoted risdiction over the and selection of civil service employees, examination into instances the exclusion of the fair agencies’ employment inquiries sees the The Board discrimination in examination and selection. alleged as a exercise of DFEH and FEHC over state employees jurisdiction by frac- and threat to the merit which it asserts will be “fragmented principle, man- their statutory tionalized” if DFEH and FEHC are allowed to fulfill below, however, Board’s claim dates. As we we cannot accept explain of irreconcilable agencies’ jurisdictions. conflict between various Brown, 168, we Cal.3d Legal rejected Foundation v. supra, Pacific under arti- a claimed conflict “exclusive jurisdiction” between the Board’s Act cle VII Relations and the of the State provisions Employer-Employee made (SEERA). (§ 3512 Foundation Legal et Petitioners seq.) Pacific VII, below: several based on article each discussed arguments separately first, conflict with the gen- that collective under SEERA would bargaining second, VII; SEERA’s res- eral “merit embodied in article principle” Legislature ervation of ultimate to the Governor and salary authority setting classifica- conflicted VII mandate to “prescribe Board’s article statutes”; third, that SEERA’s tions” and to “enforce the civil service (PERB) to the of initial grant jurisdic- Public Relations Board Employment un- Board’s mandate tion over “unfair labor conflicted with the practices” em- der article VII to civil service “review actions” disciplinary ployees.
Our review of the of article VII in history and purposes We (see Foundation here as well. 181-184) 29 Cal.3d at is relevant pp. combat noted that in the attempts of this early part century, legislative largely had system” state “spoils political patronage failed. In this response concerning problem, widespread publicity VII)15 art. in 1934 to today’s article XXIV people adopted (predecessor which beyond enshrined the merit in the state Constitution principle argu reach of the ballot examining abuses incumbents. After by political concluded, measure, ment we quoting the 1934 initiative accompanying was to from the the amendment ballot that “the ‘sole aim’ of pamphlet, establish, mandate, as a constitutional that appointments principle of merit. Having in state service be made on the basis promotions solely law, hav established this ‘merit as a matter of constitutional principle’ established a to administer this merit ing prin Personnel Board nonpartisan with a hand’ the constitutional ciple, Legislature provision ‘free left best interests ‘laws relating administration personnel fashion ’ ” 183-184, noted that “the (Id., added.) the State. We further italics 1934 ballot that the draftsmen provision makes it argument quite plain service except intended ‘to State only prohibit appointment promotion ’merit, into the state Consti on the basis of and did not intend to engrave (Id., at p. tution service every system.” the then current civil aspect *14 7.) fn. of former directly provisions from the provisions 15“The current of article VII derive of auspices under the article XXIV. The of XXIV was revised in 1970 1934 version article Commission, revision made no substantive the California Constitution Revision but the superfluous merely changes provisions in the relevant to this action and deleted obsolete Const, Amends, (See to Cal. language original provisions. Pamp., Proposed from the Ballot voters, 23-24.) (Nov. 1970) a constitutional pp. Under arguments with to Gen. Elec. adopted were reorganization repealed provisions but its measure in article XXIV was Const, Amends, arguments to Cal. with Pamp., Proposed verbatim as article VII. Ballot Brown, voters, (June 1976) 58-59.)” Legal v. (Pacific Foundation pp. to Prim. Elec. 8.)
supra, p. Cal.3d at fn. bar the collective we that held argument, first In to petitioners’ response the with face conflict not on its SEERA did established gaining process the “spoils to eliminate VII, which simply sought of article merit principle if an arise theoretically A conflict could system” public employment. to purported bargaining process out collective agreement emerging hiring pro authorizing by, example, on the merit for principle encroach noted, in the Otherwise, nothing we aon basis. politically partisan motion would be prohibited the that the Legislature amendment history suggests a meaningful affording employees a labor relations policy “from adopting (Id., employment.” of their the terms conditions determining voice 185.) at p. “integral part” that an second argument,
We likewise rejected petitioners’ was the classifications constitutional to authority prescribe of the Board’s In 187-193.) the (Id., at pp. to set those classifications. power salaries authority noted, the consistently acknowledged we the Board had past, bargaining. collective Governor and set negotiate through salaries conflict an actual (Id., 191-192.) that at We pp. repeated principle with the interfered salary the Constitution would be one where a measure (Id., at serves. system fundamental merit that the classification principle Governor’s claimed We conflict between similarly dismissed “to enforce mandate under SEERA and the Board’s salary-setting authority (on the 193-196.) (Id., argued statutes.” at Petitioners service pp. towas worded) Legislature art. as that if the basis of XXIV originally to the Board. it it delegate must delegate salary setting authority anyone, “explicitly XXIV we noted the ballot for article argument that response, mode any particular intent restrict Legislature disclaimed any personnel administration. . . . [1] . . . Although the constitutional amend to ensure ment established the State Personnel nonpartisan not propose did merit was amendment safeguarded, principle properly pro administration new Legislature adopting personnel preclude from cedures, the State outside principle, which do not the merit upon impinge . was presented Personnel Board’s . . sphere. ‘[Article XXIV] executive the state’s for the within blueprint agencies structure organic added, State Em 194-196, (Id., quoting branch.’” italics California 390, 398 (1970) Cal.App.3d Assn. v. Williams ployees’ 305].) concerning Foundation final made in argument The third and juris PERB’s article VII was that SEERA and conflict between alleged irrecon was for unfair practices
diction to and devise remedies investigate *15 “review Board’s jurisdiction in conflict with State Personnel cilably juris the two (Id., We acknowledged actions.” at p. disciplinary dictions in areas, overlap certain such as where a action is disciplinary to have alleged been animus, motivated by antiunion and held that the prop er was to approach the disparate rather than procedures simply “harmonize ” invalidate (Id., one or the other on broad constitutional at grounds. p. added.) italics Our expressed goal was to each scheme give statutory reasonable and full (Id.; effect. see also Burks v. Construction Co. Poppy (1962) 57 Cal.2d 463 313].) 370 P.2d we
Although did not decide definitely the source of in PERB’s authority Foundation, we noted that accommodation between PERB and Pacific the Board was even appropriate if the Board’s flowed from the authority Constitution and PERB’s authority (Id., flowed from the statute. at only 197, fn. 19.) The starting of this point accommodation was the recogni tion that “each agency different, was established to serve a but not incon sistent, public The purpose. State Personnel Board was granted jurisdiction to review disciplinary actions of civil service in order employees protect civil service from employees politically mistreatment or other ar partisan bitrary action inconsistent with the merit embodied in article VII. principle PERB, . . . hand, on the other has been [f] a somewhat more given spe cialized and more focused task: to both protect the state employees employer from violations of the organizational and collective bargaining rights guaranteed by SEERA. actions taken in viola Although disciplinary tion SEERA well, would the merit transgress principle Legislature evidently it thought important to assign the task investigating potential violations SEERA to an agency which can possesses develop further specialized expertise in 197-198, the labor (Id., relations ...” at pp. field. added.) italics we
Accordingly, held that the was not from Legislature estab- precluded other lishing agencies, Board, besides the State Personnel “whose special- ized also, cases, watchdog functions might some involve the considera- tion of . . . (Id., action.” disciplinary 198-199.) The first among watchdog agencies FEHC, discussed in this was the here. regard appellant We stated instance, others, that in this and in “the has deemed Legislature it appropriate vest a which has specialized agency, familiarity a par- area, ticular with the authority who are protect employees discharged otherwise disciplined in the field exercising important rights agency’s VII, We expertise. should be reluctant to construe article section sub- (a) division in a manner that would all state civil service deprive employees ” (Id., important safeguards these specialized agencies. afforded at p. added.) italics implications our reasoning Legal Foundation for the case are present clear. Just as the “merit is not principle” infringed upon
439 watchdog the by so it is unharmed the institution of collective by bargaining, Indeed, of nondis- of the fair principle functions employment agencies. non- The FEHA guarantees crimination reinforces the merit principle. like, no race, sex, part merit and the play factors such as physical handicap, noted in the the Court Appeal of civil service As appointment employees. 7 Cal.App.3d State Assn. v. Williams Employees’ California of a one 305], only 399-400 civil service provision “[t]he Those number of devices for and favoritism. practices minimizing patronage ele- controlling take creative and many forms. . . . The is the Legislature ” (Italics added.) ment. Foundation, two As in to harmonize the our here is Legal duty Pacific effect. The schemes in order to one maximum statutory each give possible other; rather, two each agency “are not in with each agencies competition inconsistent, different, was established to public purpose.” serve a but Brown, 197.) We ear- (Pacific Legal Foundation v. 29 Cal.3d supra, p. lier noted that the of the Civil Service Act is to ensure that appoint- purpose ments to state office are but on the basis made not on the basis of patronage, merit, service; in order to of state preserve economy efficiency contrast, and that rem- of the FEHA is to effective purpose provide edies for the and to vindication of constitutionally rights recognized eliminate that violate those Just as in the discriminatory practices rights. SEERA, case of between FEHA creates areas of jurisdiction overlapping SEERA, the Board and other With occurs agencies. power overlap whether or out action was undertaken “for cause” inquire disciplinary FEHA, impermissible overlap antiunion motivation. In the case of the occurs whether an discriminates against criterion inquiry class, a protected such as the physically handicapped.16 We stated in Foundation that the expressly Legal Legislature Pacific not restrained such as those by article VII from other establishing agencies, FEHA, established in- whose functions watchdog might specialized (See volve Board. consideration of matters also within the of the purview Brown, now Legal Foundation v. Cal.3d at We supra, Pacific reaffirm article our conclusion that should be reluctant to construe “[w]e VII, (a) section in a all state civil subdivision manner that would deprive service afforded these employees important safeguards specialized {Ibid.) agencies.” jurisdiction 16We note that DFEH and FEHC would have concurrent with the also inquire disciplinary employee whether a action a state constituted sex, race, on like. protected origin, age, the basis of a and the class status such as national Brown, 198-199.) supra, Foundation v. Cal.3d at
The Board claims over and appointments that its examinations authority constitutional, in the civil While the service of statutory, origin.17 is in of selection enshrined the Con- examination is principle by competitive VII, stitution in article creates no (b), section subdivision that section Rather, in the derive from Board. the Board’s constitutional powers powers article, ex- (a) section subdivision includes no mention of of which aminations. that its over 435.)18 power ante at The Board argues examinations is constitutional mandate intertwined with its inextricably in classifications,” 3 to therefore the Legislature section and that “prescribe is the from with the prohibited by power Constitution an creating agency review the Board’s examinations. reasoning the fails in the our in
Again, Board’s face of argument Pacific to set Foundation. claim that the Legal power There we rejected similar classifications,” and salaries was an integral of the part power “prescribe was therefore Further- Legislature. reach of constitutionally beyond more, our over argument makes the holding Legal Foundation Pacific or little in this context. statutory origins importance constitutional exclusive, cases neither case is the and in both accom- Board’s jurisdiction with other modation agencies required. Foundation on three
The Board attempts
Legal
to distinguish Pacific
from
claim drawn
none which
The Board’s first
grounds,
is persuasive.
the Legisla-
discussed
a statement in
Foundation where we
conflict with the
ture’s careful
of SEERA to minimize
drafting
any potential
draft-
of the Legislature’s
“merit
As an
principle”
employment.
example
are codified at sections
provisions
relating
17The
of the Civil Service Act
to examinations
18930-18941,
relating
appointments
and those
at sections 19050-19230.
contrast,
18By
powers
Commission
that state’s
in the Colorado Civil Service
vested
Thus,
reliance on Colorado
Colorado
v.
much
constitution are
more extensive.
the Board’s
Rights
rights
Civil
Commission
which
The Board cites this statement that its as for the support proposition pow- exclusive, in ers the area of examination and are as distin- appointment actions, guished from its in to review which we held powers disciplinary Legal However, Foundation were not exclusive. the cited provision Pacific of SEERA has no on this case. Here we are with a statute bearing dealing (the FEHA) duly enacted of collective by not a Legislature, product bargaining to purporting statutes without supersede legislative approval. Furthermore, examinations, we held above that the like Board’s over power its to actions, review power DFEH and FEHC disciplinary is not exclusive. have jurisdiction with the Board over both ac- concurrently “disciplinary tions” and “examinations,” to insure that neither is tainted dis- activity crimination on the basis of a class status. protected
The Board’s second claimed distinction is In Pa similarly unpersuasive. Legal Foundation we found that accommodation between PERB’s and cific the Board’s respective jurisdictions was desirable in because “each part agency was inconsistent, established to serve a different, but not public Brown, purpose.” (Pacific Legal Foundation v. 29 Cal.3d at supra, p. added.)
italics that, contrast, Board claims of the FEHA purposes are “identical” Act, to those of the Civil Service not different from them. We have already distinct, stated our view that the two acts serve though inconsistent, ante, public (See purposes. 431.) The fact that both acts p. prohibit discrimination in (as both in Foun employment Legal acts Pacific dation prohibited discrimination) based on antiunion does not discipline make the existence of the two schemes a statutory disgraceful “duplicative, funds,” waste of public as the Board I of this claims. Our discussion part indicates opinion our view that the FEHA and remedies rights provides those beyond afforded in Board proceedings. The Board’s third purported distinction concerns the fact that Pacific
Legal Foundation—where SEERA as unconstitutional petitioners challenged on its face—no Here, actual existed between PERB and the Board. conflict 19Our full statement was as designating superseded follows: be statutes “[I]n by a memorandum understanding legislative approval, Legislature without excluded classification, examination, those relating statutes appointment, promotion, or areas in potential which a likely conflict with the principle merit would be most Brown, (Pacific occur.” Legal 185.) supra, p. Foundation v. 29 Cal.3d at claimed, FEHC was fully prepared a real exists because the controversy
it is relief. the Board obtained injunctive real claims until adjudicate parties’ two types we discussed first note that in Foundation Legal We Pacific where One is and other agencies. conflict that arise between the Board might the merit principle, an action another encroaches on agency actually basis of political partisan- where is determined on the hiring promotion Brown, 185.) Cal.3d supra, p. Foundation v. ship. here, two agencies claimed where The second conflict is the one type (Id., at of facts. the same set arrive at conflicting adjudications concerning FEHC was prepared adjudicate The Board notes that the correctly Therefore, interest, do so. real but had not begun cases parties Once of inconsistent adjudications. we are not confronted with a situation *19 in lifted, well rule the FEHC could injunction against adjudication interest. and real in the Board’s favor the claims of the parties Board’s Nevertheless, that the DFEH has issued an accusation charging violate criteria for the of traffic officer cadet applicable medical position discrimination basis of physical on the statutes regulations prohibiting an administrative Should the be unable to reach continue to handicap. parties of accommodation, accusation and should the FEHC sustain the DFEH’s discrimination, appli- sensitive “by the conflict would have to be resolved this court by cation of as noted evolving judicial principles,” several possible Foundation.20 The we cited there present opinions no oc- we have but to the of concurrent problem jurisdiction, approaches are adjudications resolve that here no conflicting casion to since problem case, PERB and between jurisdictional 20In that we stated: no conflict “Because actual speculate on occasion to we have no proceeding, State Personnel confronts us this should in the future hypothetical dispute might for decision presented how some that be however, clear, make jurisdictions properly be resolved. As numerous authorities in other accom either administrative any conflicts which arise in this area can be resolved that, of or, application by sensitive agencies failing between the two modation themselves Comm., supra, (See, v. Labor Relations evolving judicial principles. e.g., Town Dedham of Winner, [(1980) 548; supra, City Hackensack v. S. Jud. Ct. 312 N.Ed.2d [Mass. 1974] Pashman, J.), id. at (conc. opn. N.J. 410 A.2d id. at 1166-1168 82 1] Schreiber, Employment (conc, J.); Albany v. Public City opn. and dis. pp. 1171-1173 502]; (1977) v. Gardner-Denver cf. Alexander App.Div.2d Rel. Bd. 374 N.Y.S.2d [395 1011]; 147, 157-165, Tipler E.I. v. 94 S.Ct. Co. 415 U.S. 47-60 L.Ed.2d [39 125, 128-129.)” (Pacific Legal Foun (6th 1971) de and Co. Cir. 443 F.2d duPont Nemours Brown, omitted.) supra, Cal.3d at fn. dation v. Dedham, cases, between Albany concern conflicts Of the above cited Hackensack cases, two cited The other public employment relations board. agency civil service claims discrimination Tipler, jurisdiction employment Alexander and involve concurrent cognizable under title VII (42 seq.), et 2000e U.S.C. Rights § of the Civil Act of 1964 FEHA. rights closely analogous most to the federal civil statute note, however, We be presented. that the FEHC should sensitive the constitutional functions of the Board and should take into account any determinations of the Board decided prior when a matter previously body comes before the FEHC. The be of deference that should degree given to the Board’s findings conclusions will on the individual case. depend If the FEHC is satisfied that a issue to it was particular sufficiently presented Board, and decided explored by the then it bar comity, may, relitigation matter, however, issue. As a general adjudication preclusion the outset would be because the to the Board inappropriate, issues presented and the FEHC will not often be identical and schemes statutory because under which they serve different operate public policies. Co.,
In Alexander v. Gardner-Denver
365 Mass. 548], 392 N.E.2d Judicial Court of Massa- Supreme chusetts faced conflicting adjudications the civil service commission and by the labor relations PERB), commission to our and stated: (analogous “[T]he Labor Relations Commission on a basis different from that of the operates Civil Service Commission. The latter vindicates a agency private right the complaining of course the is in employee (although given right part serve a public The former stirred to action a purpose). by agency, although private acts when complaint, it chooses to do so in its own name as a public to test a prosecutor public right, not limited to the possible remedy of the grievance (Town particular Dedham v. Labor Rela- employee.” Commission, tions 558.) 312 N.E.2d supra, at The court then noted that p. in the reasons difference of the is among the operations agencies
“[t]his be an either considered why should employee’s application agency (Id., an ‘election’ of resort other.” or a ‘waiver’ to each 22.) fn. case, in serve different
Likewise the two at issue present statutes Moreover, 431-432.) above. ante policies, public explained while right, before the Board employee complaining asserting private (Town the DFEH is “a right.” public testing] public prosecutor [] Commission, Labor N.E.2d at p. Dedham v. Relations supra, The bar litigation choice to assert the former should not employee’s latter right.
Conclusion conclusion, us we restate the view of article VII expressed Foundation in this The fact that voters case: again of state California it wise to the “merit place principle” thought it out of in the enshrining the hands of the Legislature by Constitution, em does that those to put public not mean voters intended to afford them outside reach of laws for their benefit ployees designed rights enjoyed private employees. for the purpose reversed. We reserve judgment jurisdiction real parties for an award of fees
considering request attorney’s interest.
Bird, J., Kaus, J., C. concurred. GRODIN, agree enjoining J. I that the trial court erred in Fair (DFEH) and the Fair Department Employment Housing claims of (FEHC) Commission from processing Employment Housing *21 concur the by judg- civil service and therefore employees, reflects a (FEHA) legislative ment. The Fair Employment Housing Act and, statute like the of that intent afford service benefits employees of I a accom- the believe that intent can be effectuated majority, by process State will functions the modation that not the constitutional infringe upon (Board). Personnel Board an address apparent
I write for two reasons. The is to first separately of Justice Lucas and that between the disagreement majority point opinion invokes unsuccessfully whether a civil service who concerning employee may there- of the a claim of discrimination through procedures that imply FEHA as The majority utilize the well. procedures after so, the Board by do a adverse determination notwithstanding prior he may
445 (ante, 443), at while such a Justice Lucas in his dissent assails p. procedure on the that it second bite at the ground “an undeserved gives employee administrative 446). at apple” (post, p. view, case is both my resolution of this in this attempted question because,
unnecessary unwise. It is as the observe unnecessary majority (ante, at 426-427), the filed real Board treated the complaints parties interest, not as of discrimination on the basis of complaints physical Thus, but as “medical never came to handicap, the Board appeals.” grips with, much less in interest there- adjudicated, claims which real parties after to the presented FEHC. What we have in hand is not a twice bitten (to but apple and an squeeze orange. metaphor) apple Resolution of the election of be remedies in this case would question unwise in particularly of the recent amendments to the Civil Service light Act giving Board remedial to that authority comparable possessed ante, (Stats. 1984, 1754, FEHC. 6; ch. (e).) (See subd. § fn. of the two under the amended relationship agencies scheme statutory involves issues best left for another day. second
My reason for a related writing is to focus separately upon aspect which, view, this case in my deserves This is not special emphasis. case of discrimination, individual in which the is whether the em- question acted ployer motive in discriminatory making particular personnel decision. (Cf. McDonnell Douglas (1973) v. Green 411 U.S. Corp. 792 [36 L.Ed.2d 93 1817].) S.Ct. Real in interest attack the parties hiring criteria generally to a applicable classification in which seek they employ- ment; and the criteria, basis of their attack is neutral on that the though face, their in fact operate exclude a discrimina- group protected FEHA, tion and are not sufficiently related to dis- job justify criminatory impact. v. Duke Griggs Power Co. U.S. L.Ed.2d 849].) S.Ct. case,
In the first type the Board will be called to take any upon action unless its jurisdiction has been invoked. If its specifically jurisdiction invoked, its function (like FEHC) that of the will be to a claim investigate case, discrimination by some other it agency. In the second type Board itself that is responsible criteria which are *22 criteria, determined, By dispute. approving those the Board has already least by implication, that are they job related. Exercise of FEHC jurisdiction in the second of case type thus for poses, inevitably, greater potential conflict. conflict
Nonetheless, I that the mere potential with the agree majority be can conflict and that actual is not FEHC enough jurisdiction, preclude and, FEHC accommodation, of the both on the part avoided by appropriate reviewing ends in litigation, in the event that the unlikely dispute to be the weight difficult as to court. In the latter event arise may questions determinations adverse to are they the FEHC insofar given findings by in anticipation, not be crossed the Board. That is a that need bridge however, at all. and, as Justice Mosk suggests, perhaps J.,* (R. L.),
Gilbert concurred.
LUCAS, J. dissent. respectfully I that adequate concern worthy
I share the fully majority’s appreciate denied have been they claiming remedies be to all provided persons state But to provide discrimination. because employment improper complaints administrative forums to air their service two employees over- unwise, already the state’s strains unnecessarily excessive and to resolve such disputes. loaded administrative machinery designed juris- with exclusive vested constitutionally The State Personnel Board is civil service personnel. of state diction over the examination and selection Act Const., the Civil Service VII.) within (Cal. art. Enabling legislation (see merit Gov. based on are hirings assurance that civil service provides otherwise code unless Code, 18500; are to this further references statutory sex, race, religion, based on indicated), age, precludes (§ et of discrimination types and other handicap specified physical been abridged have Civil service who feel their rights seq.). applicants and, formal necessary, if efforts initiate a conciliation complaint, triggering review of Judicial Code, 547 et (Cal. seq.) tit. Admin. hearings. §§ Proc., Civ. Code et seq.; an adverse board decision is available. 1085, 1094.5.) §§ this to pursue the opportunity allow civil service applicants
To rejected unsuccessful, of initiating luxury review if plus, elaborate procedure Fair Employment the state before new administrative entirely proceeding dis- Commission, employment claims of on identical based Housing the admin- bite at crimination, second an undeserved these gives applicants a multiplicity encourage serve to only Such a can holding istrative apple. hoping applicants discontented administrative proceedings forum to hear their grievances. to find some friendly * Judicial Council. Assigned by Chairperson *23 of this case dispositive The correct and statutory analysis constitutional Pre- by authored was set forth in the now vacated Court of Appeal opinion to sup- of that Justice the Puglia. opinion I siding adopt following portions this dissent: plement that Employment
“It is both the Board and the apparent appellants [Fair Hous- Fair Employment Commission and Housing Department statutes, enforcing with charged under their are ing], respective governing to discrimination identical with virtually respect substantive standards em- Service Act the The Civil against physically prohibits handicapped. the unless handicapped par- discrimination the ployment against physically (§ 19702.) employ- ticular related.’ The FEHA handicap ‘job prohibits aby ment discrimination unless justified the physically handicapped it, fide (§ we a ‘bona 12940). ‘bona fide As see occupational qualification’ related’ with the qualification’ virtually ‘job occupational synonymous administered standard categorical synonymity the Board. Even if the clear, were two not the FEHA further clarifies the essential congruity schemes to hire that an providing employer may persons refuse safely medical who are unable to or cannot physical perform handicaps the duties of the job.
“It is true as out that to the Board of appellants appli- the point appeals cants Fade and hand- Williams were handled medical rather than physical discrimination to the icap In medical the issues are limited appeals. appeals existence of the and whether that condition physical condition question meets the standards the Board’s for under employment disqualification medical standards for represent the classification. job Appellants particular affording their focus on the issue procedures directly physically oppor- handicapped employment complainant rejected to show that he notwith- tunity is in fact able to perform job question ad- his would standing disability; hearing assertedly furthermore appellants’ the com- ability dress to accommodate to reasonably employer However, availability plainants’ handicap. appellants ignore identical for waiver virtually By to the Board. remedy appeals providing of a medical within ‘subject placement’ standard proper class, to appli- the Board is consideration individualized prepared give fitness who are unable cants to meet the minimum standards physical who can dem- but preliminarily required for a classified particular position, satisfactory onstrate that ‘such would not waiver affect performance Code, tit. Cal. Admin. (see duties assigned position’ specific 172.1----) did the opportu- that the Board “Appellants rejoin applicants permit How- a traffic officer. nity to show could duties of they actually perform the *24 ever, there is neither nor showing contention that framed their applicants to i.e., appeals Board as other than of medical as appeals, complaints discrimination on account of color (§ 19701) blindness or handicap physical (§ 19702), or that they waivers of or medical specifically sought physical standards subject within proper placement the relevant classification. job (Cal. Code, 2, Admin. 172.1.) tit. It is incumbent the dissatisfied upon § who seeks applicant relief from the Board to frame clearly specifically the issues on ‘A of appeal: discrimination which cannot be re- complaint solved . . . appointing power shall be filed with the Personnel Board as an appeal .... [1] Each complaint must be in writing and state clearly based, the facts which it upon and the relief in sufficient detail requested for the reviewing authority understand the nature of the complaint who (Cal. is involved.’ Code, Admin. 547.1.) tit. §
“If the Board failed or refused to or hear decided erroneously properly tendered waiver, issues of discrimination or remedy is seek applicants’ judicial review of the (§ administrative 19630 et Code Civ. proceeding seq.; Proc., 1094.5). If claims of discrimination or waiver were not tendered Board, accordance with the rules of before the have practice applicants no justiciable which, cause to of denial of substantive complain rights given failed opportunity, they to avail themselves. [Fn. omitted.] “Appellants contend are they to exercise certain uniquely empowered remedial powers which are not upon finding given the Board. Specifically can an ‘to appellants offending require employer cease and desist from ... and to take such ac- discriminatory] practice [a tion, to, but not limited including, reinstatement hiring, upgrading commission, with or employees, without back in the as pay, judgment will effect the ....’(§ It cannot be seri- purposes [the FEHA] contended, however, ously that the Board in the circumstances lacks present under the authority Civil Service Act to to refrain compel employer from discriminatory and to cause the of a employment practices hiring par- ticular applicant under circumstances. appropriate
“Undaunted, direct our attention to the of a appellants availability right action private to an FEHA subd. aggrieved under the person (b)), out there is no pointing under the Civil Service cognate judicial remedy However, Act. fail to mention appellants that the judicial remedy pro- vided by the FEHA is in default of action where the permitted only agency Board, not file an Department does accusation. In it before the proceedings is the not the aggrieved who must initiate formal person, agency, proceed- (Cal. Code, ings by 547.1). a written Admin. filing complaint tit. §§ Thus of a in the availability judicial remedy first instance is not un- only stage would such relief at that proceedings it be useless since necessary, of administrative would be exhaustion requiring precluded by principle remedies as a review. prerequisite judicial *25 Civil under the
“We conclude
available
procedures
the administrative
em-
individual
challenge
Act
fair
guarantee
opportunity
Service
full and
handicapped.
decisions
to the
or
with
ployment
respect
medically
physically
insist,
claim-
however,
afforded
that the
Appellants
procedural protections
infor-
more
to the relatively
ants under the FEHA are qualitatively superior
be, we shall not speculate
mal
of
However that may
the Board.
procedures
of
that those
given
as to the ‘better’ of
administrative
the two
procedures
French
of law.
the Board
with the
of due
comport
process
requirements
477,
(1953)
26];
40
Kremer v. Chemical
v. Rishell
Cal.2d
481
P.2d
[254
279-280,
262,
Construction
L.Ed.2d
Corp. (1982)
“Appellants legislative of risdiction with because regard controversy to the the subject present FEHA, Board, as an within the requirement scope employer one year maintain and files for a preserve period personnel application (§ 12946) and and ethnic plans submit to the Commission affirmative action however, relates 19702.5.) statistical data. Neither specifically duty, fact information section 19702.5 regarding physically handicapped. sex, refers data mention relative to and ethnic without age, origin express alone, standing These physical handicap. record-keeping requirements, do not reflect a over em- intent to Board’s legislative jurisdiction dilute the discrimination ployment against physically handicapped. here argue that their concurrent
“Appellants jurisdiction supported sub the Board’s own Although admissions and past practice. omitted.] [Fn. v. Court (Burris be ject-matter jurisdiction Superior never waived (1974) 530, 898]; In 43 Unruh v. Truck Cal.App.3d 537 Cal.Rptr. [117 616, 815, P.2d 498 Exchange (1972) surance 7 Cal.3d Cal.Rptr. 622 [102 1063]) law rests of the although final for the responsibility interpretation courts, interpreta with past contemporaneous pronouncements authority constitutional tions officials of their by administrative legislative 669, (1971) Pickett 4 Cal.3d are accorded considerable v. weight. (Mooney v. Public 1231]; Angeles P.2d Los Cal.Rptr. City [94 779, 542 P.2d Cal.Rptr. Utilities Com. 15 Cal.3d 696 [125 1371]; 191-192 see also Foundation v. Brown 624 P.2d 1215].) [(1981)] 29 Cal.3d Nonetheless, these [168] statements and prior of the Board are of the practices not conclusive juris- dictional controversy. The testimony of Board members indicates deposition effort, at most a joint to the 20-year predecessor since adoption FEHA, of to utilize all the state’s resources to appellants eradicate discrimination in Over the Board employment. years, gener- ally has with the Commission and cases cooperated involving Department allegations discrimination in state service and has viewed the Department’s activities as to its investigatory supplementary own. Yet the Board never to con- any regard has expressed position current area of jurisdiction specific physi- cally the fact that a such discrimi- handicapped despite prohibition against nation (Stats. 1973, was added by statute in Further- 1973. ch. *26 more, in has in that it practice, Department discovery admitted has never served the Board with of accusations to employment prior discrimination the three accusations filed on behalf of the herein. Nor have applicants ever issued appellants that the in discrimi- any engaged Board has finding nation.
“We are satisfied that the has the with Board to greater respect expertise determination whether a is related or job condition disqualifying physical whether an individual can the duties of a satisfactorily perform particular job notwithstanding otherwise rela- disqualifying physical disability. tion to appellants, Board’s across the entire extends superior expertise realm of civil service classifications of including position specifically traffic officer. Virtually some minimum standard of every job requires phys- or, ical fitness in stated another level of way, absence of that physical which would of the work. While incapacity preclude adequate performance standards employment not take into account individual char- may lawfully race, color, acteristics such as or national establishment of a certain origin, minimum level in physical essential the formulation capacity legit- context, imate job standards. In the occurs when only latter fide disqualifying job (a condition is related bona physical occupational and therefore unable qualification) would not render an to perform applicant the duties of the test for discrimi- position Thus the adequately safely. nation in- physically exclusively handicapped inherently volved with the to minimum standards of setting perform capacity to These ability actually in classifications. mat- perform job particular ters are within not of the of the Board and uniquely appel- competence lants. to the to assess the Specifically has the point, expertise officer, duties of a traffic state the minimum required prescribe qualifications safely and to so to effectively ability those duties and determine perform nor perform individual cases. The have neither appellants responsibility area. in this expertise all classify positions obligation
“In order to its constitutional discharge VII, 3, Const., art. (Cal. in the civil § service according comparability of and (a)), responsibilities subd. the Board must evaluate the duties class of in each determine the levels of necessary fitness performance standards minimum (§§ 18801); the Board must establish position 18931). In order to insure (§ of fitness and for each qualification position examine Board must are the merit governed appointments principle, ability perform fitness and to determine their applicants qualifications, VII, (art. subd. of the duties class which seek they § 18930). test the (b); physical The examination where may, appropriate, {ibid.) certify ap- refuse to fitness and the Board applicant be rendered unfit to anyone perform who is so disabled as to pointment (c)). the class to which he seeks subd. appointment of an appli standards and assessment “Development job performance cant’s the Constitution ex ability a civil service are under perform job inter within the are clusively inextricably of the Board. They province twined with the to prescribe Board’s exclusive constitutional prerogative (Stockton classifications 25 Cal.2d v. Department Employment (1941) 45 741]; v. Finance Department Noce *27 over 716]) Cal.App.2d authority ap P.2d and its constitutional [113 constitutional examination all of which are at the heart of its pointment Foundation, supra, administer the merit power (Pacific Legal principle 183-184, 187, at 192-195). of these is powers Eminently part to determine whether an minimum authority physical applicant possesses either by to the demands of the capacity necessary employment, particular test standards of individualized application general by physical fitness ing against job performance requirements. on a Foundation v. “Relying Legal hypothetical example Pacific
Brown, 29 Cal.3d at claim that the Board’s supra, page appellants constitutional confined to the merit jurisdiction solely vindicating princi- narrow, as ple against unduly influence. Such a construction political merit also principle against corruption, vindication necessarily contemplates subversion, and indol- disloyalty, inefficiency, and commonplace ineptitude Foundation, (See ence in the at supra, classified service. Pacific cannot be Whatever the of the merit it p. scope precise principle, standard, i.e., from defined in terms of a freedom simply negative political influences, criteria. The if it is to be administered other than subjective its merit is the antithesis of influence and to administer political principle from po- constitutional insulate state acknowledged powers influence, must devise a criteria which are litical the Board set of objective related, thus content to defining substantive intrinsically job giving to per- Standards of fitness and ability physically merit principle. physical ob- criteria as just form formulation of such objective are essential race, color, officials consanguinity high affiliation or viously party to the physically are not. standards Imposition appellants’ applicable extent, would, the uniform to that undermine inevitably handicapped the stew- the merit in state employment, objective application principle Board. the Constitution to the of which is confided ardship exclusively by the same jurisdictional space “The Board and seek to occupy appellants to ‘ex claim the right the context of a concrete controversy. Appellants Board to determine set amine the qualifications employment] [for fide, applicants op whether are bona and then they give handicapped ’ The fide bona ability requirements. demonstrate portunity perform total these matters poses present assertion of over appellants’ jurisdiction classification, and fatal conflict with the Board’s constitutional powers Foundation, 181). supra, (Pacific Legal examination and appointment exists, of the Board derived constitutionally power Where such a conflict 1,11 (1974) 12 Cal.3d Co. must Waters v. prevail. Telephone 1161].)” 523 P.2d from further prosecuting I would affirm judgment enjoining appellants the accusations filed real parties.
MOSK, J. dissent. I are suffering in interest
Since I do not believe these three real parties of Gov- meaning within the discrimination on the basis of handicap physical 12940,1 majority to which ernment Code section do not reach the issue *28 devote their lengthy discussion. National Ins. American
Without dissent in my repeating analysis 603, 611 32 Cal.3d Co. v. Fair & Com. Employment Housing therein 1151], expressed. P.2d I adhere to the views instant case qual- for in the None the three state applicants Legislature. as defined ifies as person “physical handicap” claim of Code, merit to their (h).) there was no (Gov. subd. Thus their claim has Because virtue of the so-called handicap. and the Fair between the State Personnel no the conflict validity, contention Commission over their employment and Housing Employment illusory. purely two state unseemly it to me editorializing, appears unduly
Without system the entire litigation judicial through agencies engage protracted has enough legit- over or extension of turf. each Certainly their protection arm- into an entering without imate with which be concerned problems In a well-ordered with another over wrestling jurisdiction. contest agency would be settled administrative this organization, type controversy mutual agreement. given.
I not for the reasons would affirm judgment, though 19, 1985, to read On was modified as printed September judgment above.