Lead Opinion
Opinion
California statutory law prohibits employers from discriminating against older workers (statutorily defined as workers over the age of 40) because of their age. Specifically, the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) makes it “an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action.” (Id., § 12941, subd. (a).)
We conclude that, as applied to employers regularly employing five or more workers, the policy prohibiting employment discrimination against older workers satisfies each of the criteria this court has established as necessary to support a common law action for tortious wrongful discharge: The policy has been articulated in a statute (the FEHA), benefits society at large, is “substantial” and “fundamental,” and was well established at the time of the discharge here. We further conclude that, because the FEHA expressly does not preempt any common law tort claims, the FEHA’s age discrimination remedies are not exclusive and do not bar a tort claim for wrongful discharge in violation of the public policy against age discrimination.
I. Facts and Procedural History
Because this matter comes to us on demurrer, we take the facts from plaintiff’s complaint, the allegations of which are deemed true for the limited purpose of determining whether plaintiff has stated a viable cause of action. (Livitsanos v. Superior Court (1992)
When she was discharged at the age of 60, plaintiff Joan Stevenson (Stevenson) had worked as an employee of real party in interest Huntington Memorial Hospital (the Hospital) for over 30 years, performing her job competently and receiving commendations and pay increases. During 1992, shortly before her discharge, Stevenson had been on a medical leave of absence approved by the Hospital. According to the Hospital’s personnel policies and procedures manual, upon return from an approved medical leave of absence for occupational or nonoccupational injury or illness an employee
On November 6, 1992, the Hospital informed Stevenson that her right to reinstatement would be guaranteed until December 31, 1992. On an unspecified day during November 1992, Stevenson notified the Hospital that she was ready to return to work. At that time, the Hospital told Stevenson that she would not be allowed to return to her original job classification and shift, and it denied her reinstatement “to another job classification and shift with opportunity for later reassignment to her original job classification and shift.”
The Hospital terminated Stevenson’s employment “some time after December 31, 1992.” It did so “because of [Stevenson’s] age and to deny her the opportunity to obtain benefits to which she was entitled and eligible as a 30-year employee.”
On December 30, 1993, Stevenson filed a wrongful termination action against the Hospital. Her first amended complaint, which is the pleading at issue here, contains allegations grouped into four alleged causes of action: (1) breach of employment contract; (2) wrongful discharge in violation of a public policy against terminating an employee for taking an approved medical leave; (3) wrongful discharge in violation of a public policy against age discrimination; and (4) breach of the implied covenant of good faith and fair dealing.
The Hospital demurred to Stevenson’s first amended complaint in its entirety. Regarding the first and fourth causes of action (the contract claims), the Hospital asserted that Stevenson had not sufficiently alleged the existence of a written, oral, or implied contract. As to the second and third causes of action (the tort claims), the Hospital maintained that fundamental public policy was not violated by either age discrimination in employment or termination of employment for taking medical leave. These tort claims, according to the Hospital, were also barred because Stevenson had not exhausted her statutory remedies under the FEHA.
The trial court overruled the Hospital’s demurrer with respect to the contract claims. As to the tort claims for wrongful discharge in violation of
The Court of Appeal issued an alternative writ but ultimately denied Stevenson’s petition. The court devoted a large portion of its opinion to the central question of whether Stevenson’s wrongful discharge claim was supported by a fundamental public policy against age discrimination in employment. Although recognizing that we had expressly left this issue open in Jennings, supra,
II. Discussion
A. Origins of the Tortious Discharge Claim
In California, an employment relationship may generally be terminated by either party “at will.”
This court first addressed the tortious discharge claim in Tameny v. Atlantic Richfield Co. (1980)
B. Refining the Analysis of Tortious Discharge: Gantt v. Sentry Insurance
This court further defined the framework of the tortious discharge claim in Gantt v. Sentry Insurance (1992)
Citing Foley v. Interactive Data Corp. (1988)
Based upon a historical survey of tortious discharge decisions and this court’s reluctance to declare public policy without legislative guidance, this court observed: “A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public.” (Gantt, supra,
In this manner, this court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy
C. The FEHA and Tortious Discharge: Rojo v. Kliger and Jennings v. Marralle
Stevenson alleges that fundamental public policy prohibits age discrimination by employers who are subject to regulation under the FEHA. This court has previously discussed the interplay between the FEHA and common law claims, such as wrongful discharge in violation of public policy, in Rojo v. Kliger (1990)
Rojo, supra,
We began our analysis with a description of the “salient features” of the FEHA:
“The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab. Code, § 1410 et seq.) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq.) to form the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140 et
“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.’ ([Gov. Code,] § 12965, subd. (b); Dyna-Med, Inc. v. Fair Employment & Housing Com., supra,
“The broad goal of the FEHA is set forth at [Government Code] section 12920, which states in pertinent part: ‘It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex or age.’ ” (Rojo, supra,
Concluding that the Legislature had not made the FEHA’s employment discrimination remedies exclusive, we quoted an earlier decision of this court: “ ‘The FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination . . . . ([Gov. Code,] § 12993, subd. (a).)’ ” (Rojo, supra,
Holding that the plaintiffs in Rojo possessed a valid tortious discharge claim, we concluded that sexual harassment violates fundamental public policy. Citing Foley v. Interactive Data Corp., supra,
Because the California Constitution amply established the existence of a fundamental public policy against sex discrimination in employment, we did not consider whether the same public policy was also independently established by the FEHA’s prohibition against sex discrimination in employment. Thus, Rojo, supra, 52 Cal.3d 65, although it does define important aspects of the relationship between the FEHA and common law wrongful discharge claims, did not expressly decide whether the FEHA may itself be a source of fundamental public policy.
Jennings, supra,
Central in Jennings was the scope of the fundamental public policy exception to the “at will” employment rule. Citing Gantt, supra, 1 Cal.4th
We noted that the FEHA’s prohibition of employment discrimination against older workers was unambiguous: “The FEHA is a statute which clearly states a public policy against discrimination on the basis of age in employment.” (Jennings, supra,
Because the FEHA could not provide the necessary articulation of public policy against age discrimination by employers having fewer than five employees, we examined other possible legislative sources of this policy. As we observed in Jennings, the Legislature has broadly declared a public policy against age discrimination in the workplace in Unemployment Insurance Code section 2070, which provides: “It is the public policy of the State of California that manpower should be used to its fullest extent. . . . Accordingly, use by employers ... of arbitrary and unreasonable rules which bar or terminate employment on the grounds of age offend[s] the public policy of this State.” (See Jennings, supra,
Next, we observed that exclusion of small-scale employers from the ambit of the FEHA’s prohibitions serves two purposes: “ ‘relieving the administrative body of the burden of enforcement where few job opportunities are
We summarized our conclusions this way: “While the FEHA includes age among the categories protected by public policy against discrimination in employment, it does not make discrimination by an employer of less than five persons unlawful. Employers of four or fewer persons are exempt under the FEHA and no other law makes discrimination on the basis of age unlawful. It would be unreasonable to expect employers who are expressly exempted from the FEHA ban on age discrimination to nonetheless realize that they must comply with the law from which they are exempted under pain of possible tort liability. We do not ascribe such a purpose to the Legislature.” (Jennings, supra,
In drawing this conclusion, we explicitly left open the question of whether fundamental public policy generally prohibits age discrimination in employment: “Whether discrimination in employment on the basis of age violates a ‘fundamental’ public policy has not been resolved by this court. We need not decide that question here since the ‘public policy’ on which plaintiff relies is not applicable to defendant. He is not an ‘employer’ subject to the age discrimination provisions of the FEHA.” (Jennings, supra,
Viewing the FEHA provisions relating to age discrimination as a whole, we must now determine whether they support a common law tort action for wrongful discharge in violation of a fundamental public policy against age discrimination by employers who are not statutorily exempt under the FEHA.
D. Age Discrimination by Employers Subject to the FEHA
As discussed earlier, for a policy to support a wrongful discharge claim, it must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental. Three of these four requirements are not reasonably subject to dispute in this case.
Second, there can be little doubt that the FEHA’s express policy condemning employment discrimination against older workers is one that benefits the public at large. Because average life expectancy has risen to more than 80 years, most California residents either are now or will become over-40 employees,
Third, the FEHA’s policy against age discrimination in employment was well established when the Hospital discharged Stevenson. As noted earlier, the FEHA has protected older workers from employment discrimination since its enactment in 1980, and the statutory predecessors of its age discrimination provisions had previously been in effect continuously since 1961.
There remains only the question whether the FEHA’s express prohibition against age discrimination in employment is substantial and fundamental. This court has not articulated a test for determining when a public policy is sufficiently substantial and fundamental to support a cause of action for tortious wrongful discharge. In this case, however, we have identified certain considerations that lead us to conclude that the FEHA’s policy against age discrimination in employment is indeed fundamental.
The policy against age discrimination is similar in important ways to the policies against race and sex discrimination, policies that are unquestionably
In the FEHA, the Legislature has recognized that age discrimination in employment is comparable in important ways to sex and race discrimination by declaring all three to be against public policy and by encompassing all three within the same broad prohibition. Because the FEHA’s exception for employers having fewer than five workers applies not only to age discrimination but also to race and sex discrimination, the existence of this exception does not by itself prove that the policy against age discrimination is in any way less substantial and fundamental than the policies against race and sex discrimination.
As this court observed in Jennings, supra,
Further, we observe that the FEHA’s general prohibition against age discrimination in employment is a particular expression of a broader policy against age discrimination that the Legislature has articulated through a wide variety of California code provisions. Stevenson and her amici curiae list over 30 California code sections that prohibit age discrimination or implement a policy against age discrimination in specific areas such as education, health care, land use regulation, and state employment. (See, e.g., Civ. Code, § 51.2 [housing]; Gov. Code, § 11135 [state-funded programs]; id., § 65008 [land use regulation]; Health & Saf. Code §§ 1317, 1317.3, 1365.5 [health
Finally, additional assurance that the policy against age discrimination in employment is substantial and fundamental may be found in the laws of other jurisdictions. Age discrimination in employment has been considered a matter of sufficient gravity to warrant legislative action by the United States Congress through the federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.). And, as amicus curiae American Association of Retired Persons points out, laws against age discrimination in employment have been adopted in 45 other states and the District of Columbia. (See Alaska Stat. § 18.80.220(a)(1); Ariz. Rev. Stat. Ann. § 41-1463; Colo. Rev. Stat. § 8-2-116; Conn. Gen. Stat. § 46a-60(a)(1); Del. Code Ann. tit. 19, § 711(a); D.C. Code Ann. § 1-2512; Fla. Stat. Ann. §§ 760-10, 112.043; Ga. Code Ann. §§ 34-1-2(a), 45-19-20 et seq.; Haw. Rev. Stat. § 378-2; Idaho Code § 67-5909; 775 Ill. Comp. Stat. 5/1-103(Q), 5/2-102; Ind. Code § 22-9-2-2; Iowa Code § 216.6; Kan. Stat. Ann. § 44-1113; Ky. Rev. Stat. Ann. § 344.040; La. Rev. Stat. Ann. § 23:972; Me. Rev. Stat. Ann. tit. 5, § 4572; Md. Ann. Code of 1957, art. 49B, § 16(a); Mass. Gen. Laws Ann. ch. 151B, § 4; Mich. Comp. Laws § 37.2102; Minn. Stat. § 181.81; Mo. Rev. Stat. §213.055; Mont. Code Ann. § 49-2-303; Neb. Rev. Stat. §48-1004; Nev. Rev. Stat. § 613.330; N.H. Rev. Stat. Ann. § 354-A:7; N.J. Stat. Ann. §§ 10:3-1, 10:5-12; N.M. Stat. Ann. § 28-1-7; N.Y. Exec. Law § 296; N.C. Gen. Stat. §§ 126-36, 143-422.2; N.D. Cent. Code § 14-02.4-03; Ohio Rev. Code Ann. § 4112.02; Okla. Stat. tit. 25, § 1302; Or. Rev. Stat. § 659.030; 43 Pa. Cons. Stat. § 955; R.I. Gen. Laws § 28-5-7; S.C. Code Ann. § 1-13-80; Tenn. Code Ann. § 4-21-401; Tex. Lab. Code Ann. § 21.051; Utah Code Ann. § 34-35-6; Vt. Stat. Ann. tit. 21, § 495(c); Va. Code Ann. § 2.1-116.06; Wash. Rev. Code § 49.44.090; W. Va. Code §5-11-9; Wis. Stat. Ann. § 111.322; Wyo. Stat. Ann. § 27-9-105.)
For all these reasons, we are persuaded that the FEHA’s policy against age discrimination in employment is sufficiently substantial and fundamental to support a tort claim for wrongful discharge. We therefore conclude that the FEHA’s policy against age discrimination satisfies each of the four requirements that this court has established as essential to support a common law tort claim for wrongful discharge in violation of public policy.
We now consider certain arguments that the Hospital, those who have submitted briefs as amici curiae in support of the Hospital’s position, and the
The Hospital argues, first, that a common law wrongful termination claim may not be grounded on the FEHA’s prohibition against age discrimination in employment because the FEHA provides a comprehensive scheme for dealing with discrimination against older workers and therefore the Legislature must have intended that this comprehensive scheme would be exclusive and would preempt common law claims. The Hospital recognizes that this court has reached a contrary conclusion regarding claims based on sex discrimination (see Rojo, supra,
The Hospital’s argument fails for the reasons stated in this court’s opinion in Rojo. We there framed one of the issues for decision as “whether the FEHA provides the exclusive remedy for injuries arising from discrimination in employment.” (Rojo, supra,
Turning for guidance to the FEHA’s provisions, this court found that “[t]he meaning of the FEHA is clear in this regard.” (Rojo, supra,
We next turned our attention to subdivision (c) of Government Code section 12993, providing that “it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state . . . .” We concluded that this provision indicates “a legislative intent to preempt only local law” and “provides no support for the view that the FEHA was intended to displace state laws relating to employment discrimination.” (Rojo, supra, 52 Cal.3d 65, 78, italics in original.)
We did not alter these conclusions upon consideration of the general rule of statutory construction that “where a statute creates a right that did not
Finally, observing that the defendant in Rojo had relied on two lines of appellate decisions holding that the FEHA provides the exclusive remedy for injuries caused by employment discrimination, we explained why this reliance was unavailing. (Rojo, supra,
“Illustrative of a second line of cases is Strauss v. A. L. Randall Co. (1983)
“In determining legislative intent, however, Strauss and its progeny needlessly invoked the ‘new right—exclusive remedy’ doctrine of interpretation. Because the FEHA, like its predecessor the FEPA, expressly disclaims any intent to displace other relevant state laws, no resort to interpretative aids is required and the existence vel non of a preexisting cause of action for the particular discrimination is irrelevant. While the FEHA conferred certain new rights and created new remedies, its purpose was not to narrow, but to
Despite our clear holding that the FEHA does not preempt any state common law remedies for employment discrimination, whether preexisting or not, despite our express conclusion that the “new right—exclusive remedy” rule of statutory construction has no application to the FEHA, and despite our express disapproval of the Court of Appeal’s invocation of that rule in Strauss, supra,
The Hospital and its amici curiae supporters offer essentially two reasons for disregarding this court’s carefully considered and plainly articulated conclusion in Rojo, supra, 52 Cal.3d 65, that the FEHA does not preclude any common law tort remedies, whether preexisting or not. First, they point to the Rojo footnote declining to express any opinion concerning the result in Strauss, supra,
As we have fully explained above, a policy may support a wrongful discharge claim only if it satisfies four requirements. The policy must be (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the
In Rojo, this court devoted a separate part of the opinion, entitled “FEHA Preclusion of Common Law Claims,” to the question whether the FEHA preempted common law remedies for employment discrimination. (Rojo, supra, 52 Cal.3d 65, 73-82.) In that part of the opinion, we did not confine our discussion to claims of employment discrimination on the basis of sex. Rather, we considered the broader question of whether the FEHA preempted any common law tort claims for any employment discrimination. As noted above, we concluded that “the FEHA . . . expressly disclaims any intent to displace other relevant state laws,” that “the existence vel non of a preexisting cause of action for the particular discrimination is irrelevant,” and that “plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation.” (Id. at p. 82, italics in original.) Thus, our failure to expressly disapprove the result in Strauss, supra, 144 Cal.App.3d 514, in no way suggests that the FEHA may be interpreted as precluding or preempting an older worker’s common law cause of action for wrongful discharge in violation of the public policy against age discrimination.
Equally unpersuasive is the Hospital’s attempt to distinguish Rojo, supra, 52 Cal.3d 65, on the basis that the public policy at issue there was grounded
Similarly, nothing in the language of this court’s Rojo opinion supports the proposed distinction between public policies articulated within and outside the FEHA. To the contrary, we carefully explained that it is irrelevant whether a particular common law claim preexisted the FEHA and we excluded distinctions of the kind that the Hospital here suggests by stating that under the FEHA “plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation.” (Rojo, supra,
The Hospital’s remaining argument essentially is a variation on the first. The Hospital argues that even if, as we have concluded, an older worker may ground a common law wrongful termination claim in the FEHA’s prohibition against age discrimination in employment, Stevenson may not rely on the FEHA to support such a claim because she did not exhaust her administrative remedies under the FEHA. As the Hospital acknowledges, this court has rejected the contention that a plaintiff must exhaust administrative remedies under the FEHA to maintain a common law tort claim of wrongful discharge in violation of public policy. (Rojo, supra,
This argument ignores the logic of Jennings, supra,
Neither of these considerations applies here. Because the Hospital has more than four workers, the Legislature clearly intended the policy against age discrimination to apply to it, and therefore recognizing a common law cause of action would not be inconsistent with an implied legislative determination regarding the proper scope of liability. In addition, the Hospital may not reasonably claim lack of notice that age discrimination would result in liability, nor is it the beneficiary of any statutory grant of immunity. As an over-40 worker, Stevenson belongs to the class of persons for whom the Legislature intended to afford a remedy for age discrimination in employment. That she failed, for whatever reason, to avail herself of those remedies does not mean either that the policy against age discrimination in employment does not apply to her or that the Hospital did not engage in conduct prohibited by the FEHA when it terminated her employment because of her age. Because the FEHA’s policy against age discrimination in employment applies to both Stevenson and the Hospital, she may assert her common law wrongful termination claim without exhausting her administrative remedies under the FEHA. (Rojo, supra,
Stated more analytically and precisely, when a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition, but the common law claim is not subject to statutory procedural limitations affecting only the availability and scope of nonexclusive statutory remedies. Under the rule as thus stated, a common law tort claim for wrongful termination in violation of the public policy against age discrimination articulated in the FEHA is subject to the FEHA’s exemption for small-scale employers because that exemption is a limitation affecting the nature and scope of the age discrimination prohibition. Simply put,
By contrast, a common law tort claim for wrongful termination in violation of the public policy against age discrimination articulated in the FEHA is not subject to the FEHA’s requirement that an employee exhaust administrative remedies before seeking judicial relief because that requirement does not affect the nature and scope of the prohibition but only the availability and scope of the statutory remedies. An employee’s post-termination failure to exhaust administrative remedies has no bearing on whether the termination violated the public policy expressed through the statutory prohibition against age discrimination, and thus the employee’s post-termination administrative default does not preclude assertion of a nonstatutory tort claim for wrongful termination in violation of public policy. .
In her dissent, Justice Brown urges this court to adopt an entirely new and additional requirement for the tort of wrongful discharge in violation of public policy—that the wrongfully discharged employee have no judicial remedy under the FEHA or under any similar statutory scheme. The dissent argues that this additional requirement is necessary to prevent employees who are the victims of prohibited employment discrimination from bypassing the administrative procedures under the FEHA (or similar statutes) because, the dissent asserts, forcing discharged employees to subject their claims to the FEHA’s administrative process is essential to further the purposes of the FEHA and to maintain the proper balance between the interests of employers and employees.
As is evident from this summary of its position, the dissent’s real quarrel is not with our holding in this case, but with this court’s previous decision in Rojo, supra,
In Rojo, supra,
Although the dissent attempts to distinguish Rojo, supra,
In support of its position, the dissent cites what may seem to be an impressive number of decisions from other jurisdictions. But an examination of these decisions reveals that they provide little or no assistance on the narrow issue before us in this case. In declining to recognize common law actions for violations of statutory nondiscrimination policy, many of the courts authoring these decisions relied upon the same “new right—exclusive remedy” rule of statutory construction that this court has already found to be inapplicable to the FEHA. (Rojo, supra, 52 Cal.3d 65, 79-81.) In other decisions, the courts restricted the scope of the tort of wrongful discharge in violation of public policy in ways that this court has previously rejected. In none of these decisions did a court find that the antidiscrimination law under consideration contained language that, like subdivision (a) of Government Code section 12993, expressly preserved for the benefit of employees all preexisting or alternative common law claims.
When we held in Rojo, supra, 52 Cal.3d 65, that the FEHA’s employment discrimination remedies are to be in addition to, and not in lieu of, other
Since this court’s decision in Rojo, supra,
In addition to assaulting this court’s decision in Rojo, supra,
Our decision recognizing a tortious discharge claim for older workers discharged because of age imposes no new burdens on California employers because under the FEHA the victims of such discrimination may bring civil actions for compensatory and punitive damages after obtaining a right-to-sue letter. (See Commodore Home Systems, Inc. v. Superior Court (1982)
At bottom, the dissent appears to question the wisdom of any government policy to inhibit employment discrimination against older workers. But “[o]ur function is not to judge the wisdom of statutes.” (Wells Fargo Bank v. Superior Court (1991)
III. Conclusion
Aging is a highly complex and variable process. Chronological age alone is not a reliable measure of any individual’s vitality or ability, and many individuals remain robust and productive well past the normal retirement age. Nevertheless, some employers have discriminated against highly qualified older workers solely because of their age, either by not hiring them or by replacing them with younger persons.
To remedy this injustice, the Legislature has afforded displaced older workers statutory remedies under the FEHA. In so doing, the Legislature has expressly declared that the FEHA’s remedies shall be cumulative to all other state law remedies. Those remedies include common law tort claims such as a claim for wrongful discharge in violation of public policy.
We conclude that Stevenson has successfully pleaded a claim for tortious wrongful discharge grounded in the FEHA’s provisions prohibiting discrimination against older workers because of their age. The policy against age discrimination in employment, as applied to over-40 workers and to employers who regularly employ more than 4 workers, is delineated by statute, benefits the public at large, and is substantial and fundamental. Furthermore, this public policy was well established at the time of Stevenson’s discharge. Because the Legislature has expressly declared that the FEHA’s statutory remedies are cumulative rather than exclusive, assertion of a common law tort claim for wrongful discharge in violation of the public policy against age discrimination as articulated in the FEHA is consistent with the legislative intent underlying the FEHA.
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court with directions to issue a writ of mandate commanding the superior court to vacate its order insofar as it sustains the Hospital’s
George, C. J., Mosk, J., Werdegar, J., and Chin, J., concurred.
Notes
In full, Government Code section 12941 provides:
“(a) It is an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action. This section shall not be construed to make unlawful the rejection or termination of employment where the individual applicant or employee failed to meet bona fide requirements for the job or position sought or held, or to require any changes in any bona fide retirement or pension programs or existing collective-bargaining agreements during the life of the contract, or until January 1, 1980, whichever occurs first, nor shall this section preclude such physical and medical examinations of applicants and employees as an employer may make or have made to determine fitness for the job or position sought or held.
“Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under
“(b) This section shall not limit the right of an employer, employment agency, or labor union to select or refer the better qualified person from among all applicants for a job. The burden of proving a violation of this section shall be upon the person or persons claiming that the violation occurred.”
As stated in the petition for review, the issue presented here is “[w]hether age discrimination in employment violates a fundamental public policy thereby permitting a common law cause of action for tortious wrongful discharge.” Stevenson has abandoned her second cause of action—wrongful discharge in retaliation for taking an approved medical leave.
Firmly entrenched in traditional American common law, the at will doctrine is a particular application of the more general doctrine of freedom to contract. An 1877 law treatise put it this way: “ ‘With us, the rule is inflexible that a general or indefinite hiring is, prima facie, a hiring at will; and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. . . . [A]n indefinite hiring ... is determinable at will by either party.’ ” (Comment, The Public Policy Exception to the Employment-at-Will Doctrine: Its Inconsistencies in Application (1994) 68 Tul. L.Rev. 1583, 1586, quoting Wood, A Treatise on the Law of Master and Servant (1877) § 134, p. 272.)
This court has not articulated any distinction between the terms “substantial” and “fundamental” as used in this context; accordingly, we treat them as constituting a single requirement.
As this court explained in Jennings, the Legislature enacted Unemployment Insurance Code section 2070 in 1961, together with section 2071 and former section 2072 of the same code. (Stats. 1961, ch. 1623, § 1, p. 3517.) Former section 2072 made it unlawful to discharge an employee between the ages of 40 and 64 solely on the ground of age, but section 2071 limited this prohibition to employers with at least 6 employees. In 1972, the Legislature repealed section 2072 and reenacted it, with minor alterations, as former section 1420.1 of the Labor Code, while at the same time, in former section 1413 of the Labor Code, limiting this prohibition to employers with five or more employees. (Stats. 1972, ch. 1144, § 1, p. 2211.) These Labor Code provisions were in turn repealed and replaced by the current provisions of the FEHA. (See Jennings, supra,
As we have observed, the FEHA’s age discrimination prohibition applies only to employees “over the age of 40.” (Gov. Code, § 12941, subd. (a).)
In his concurring opinion, Justice Baxter states that he does not agree that a public policy articulated in the FEHA may supply the public policy element of a common law wrongful discharge claim because this “view is inconsistent with our recognition in Rojo v. Kliger (1990)
Justice Baxter is correct that in Rojo this court held that the FEHA preserves all preexisting common law remedies. But we stated that it preserved not only remedies that were “preexisting” but also those that were “alternative” (Rojo, supra,
Justice Baxter states that he concurs in the judgment here because a “fundamental public policy against discrimination in employment on the basis of age independent of the FEHA has existed in Unemployment Insurance Code section 2070 since 1961 . . . .” (Conc, opn., post, at p. 910.) It is unclear, however, what advantage Justice Baxter perceives in tracing the public policy against age discrimination to the FEHA’s 1961 statutory antecedents in the Unemployment Insurance Code, since Justice Baxter does not explain how the Legislature’s intent in enacting those provisions was any more or less consistent with a common law wrongful discharge claim than its intent in enacting the FEHA.
The dissent is wrong in its assertion that recognizing a common law claim for wrongful discharge in violation of a public policy articulated in the FEHA “effectively forecloses any possibility of ‘conference, conciliation, [or] persuasion’ to resolve the dispute or rectify the discriminatory practice (§ 12931).” (Dis. opn., post, at p. 916.) The FEHA’s administrative process and administrative remedies remain available to any employment discrimination claimant who elects to invoke them; such a claimant is not forced to choose between the common law claim and the FEHA’s administrative remedies.
Concurrence Opinion
I concur in the judgment of the court, but believe that the result can be supported on the narrow ground that a fundamental public policy against discrimination on the basis of age exists independent of the Fair Employment and Housing Act. Because an independent statutory expression of that policy exists the court need not address any broader question. Moreover, I do not agree with the conclusion of the majority that the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) itself may be the basis for finding a public policy that will support a common law tort action for wrongful termination in violation of public policy. That view is inconsistent with our recognition in Rojo v. Kliger (1990)
A firmly established, fundamental public policy against discrimination in employment on the basis of age independent of the FEHA has existed in Unemployment Insurance Code section 2070 since 1961 (Stats. 1961, ch. 1623, § 1, p. 3517), however. As we noted in Jennings v. Marralle (1994)
This policy has been continuously recognized and enforced.
Since discrimination against older workers by other employers does violate a fundamental public policy of this state which was firmly established at the time plaintiff was discharged, I agree that defendant’s demurrer to plaintiff’s cause of action for wrongful termination in violation of a public policy against age discrimination should have been overruled.
I therefore concur in the judgment.
As is presently the case, the Legislature excluded small employers from compliance with this policy by excluding employers of less than six persons from the definition of “employer.” (Unemp. Ins. Code, § 2071.) No common law action would lie against a small employer for violation of the public policy expressed in Unemployment Insurance Code section 2070, therefore. (See Jennings v. Maralle, supra, 8 Cal.4th at pp. 135-136.)
Former section 2072 of the Unemployment Insurance Code provided: “It is unlawful for an employer to refuse to hire or employ; or to discharge, dismiss, reduce, suspend, or demote any individual between the ages of 40 and 64 solely on the ground of age, except in cases where the law compels or provides for such action. This section shall not be construed to make unlawful the rejection or termination of employment where the individual applicant or employee failed to meet bona fide requirements for the job or position sought or held, or to affect bona fide retirement or pension programs; nor shall this section preclude such physical and medical examinations of applicants and employees as an employer may make or have made to determine fitness for the job or position sought or held.
"Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities and trade schools shall not, in and of themselves, constitute a violation of this chapter.
“This section shall not limit the right of an employer, employment agency, or labor union to select or refer the better qualified person from among all applicants for a job. The burden of proving a violation of this section shall be upon the person or persons claiming that the violation occurred.” (Stats. 1961, ch. 1623, § 1, p. 3518.)
Dissenting Opinion
I dissent.
Reflecting on the tradition of the common law, Llewellyn commends the “wisdom and value of moving into any new development with canny caution” and respect for the difficulties that can “grow out of letting a concept’s seeming corollaries take over without reference to the sense of the situation.” (Llewellyn, The Common Law Tradition, Deciding Appeals (1960) p. 281.)
FEHA is a comprehensive statute that carefully balances complementary administrative and judicial remedies not only to make whole victims of discrimination in the workplace, but also to penalize these unlawful business practices and prevent their recurrence. Permitting a parallel common law tort claim puts courts in the untenable position of using a legislative declaration of public policy as a touchstone to justify duplicative remedies that ultimately can serve only to frustrate legislative intent. In addition, recognizing a FEHA-based cause of action for wrongful discharge in violation of public policy contradicts the rationale of this exception to the at-will employment doctrine. When the Legislature has provided an adequate statutory remedy to fully protect the interests of both the employee and the public, the courts have neither reason nor need to intercede. The employee is not without redress and the public policy can be vindicated through the statute. Finally, even without adding this qualification to the Tameny doctrine, I would deny plaintiff relief because she has failed to establish the public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial.”
I.
A FEHA-based Tameny claim duplicates remedies currently available to victims of employment discrimination while defeating the goals of FEHA by circumventing legislatively designed procedures for achieving its broad public policy “to protect and safeguard the right and opportunity of all persons” to be free from discrimination in the workplace. (§ 12920.)
“[A] primary purpose of the alternative systems of redress for employment discrimination is to permit efficient and prompt administrative disposition— without cost to the victim—of claims that are amenable to conciliation or to corrective equitable remedies, and thus do not warrant a full-scale judicial proceeding with its attendant expense and delay [citation], while reserving to the judicial system, with its attendant constitutional and statutory safeguards, those statutory claims that seek significant nonquantifiable monetary recompense or that the complainant wishes to join with nonstatutory causes of action.” (Peralta, supra,
“[T]he compliance structure of the FEHA encourages cooperation in the administrative process.” (Commodore Home Systems, Inc. v. Superior Court (1982)
As an alternative to the administrative process, a complainant may seek judicial relief upon the issuance of a right-to-sue letter. In that event, “[t]he same remedies, along with [unlimited] compensatory and punitive damages, may be awarded by a superior court in a private enforcement action under the FEHA . . . .” (State Personnel Bd., supra,
The director has nonetheless also informed the court in the past that “if a complainant requests a right-to-sue letter in order to bring a civil suit, current Department policy is to issue the letter only after the Department has invited the respondent to make settlement offers and settlement is not achieved.” (Rojo, supra,
In sum, a complainant ultimately has the option to seek redress under the more streamlined, informal, and cost-effective administrative procedures or to pursue litigation. With its broad remedial and oversight authority, the Commission can fully realize the “vital policy interests embodied in FEHA, i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation. [Citations.]” (Yurick v. Superior Court (1989)
The Legislature has expressly declared, “It is the existing policy of the State of California . . . that procedures be established by which allegations of prohibited harassment and discrimination may be filed, timely and efficiently investigated, and fairly adjudicated, and that agencies and employers be required to establish affirmative programs which include prompt and remedial internal procedures and monitoring so that worksites will be maintained free from prohibited harassment and discrimination .... To further this intent, the Legislature enacts [FEHA].” (Stats. 1984, ch. 1754, § 1, pp.
Transmuting a FEHA complaint into a Tameny claim upsets this carefully crafted statutory scheme by enabling the employee to seek the same judicial redress but entirely bypass the administrative review normally a prerequisite to such an action. Such bypass effectively forecloses any likelihood of “conference, conciliation, [or] persuasion” to resolve the dispute or rectify the discriminatory practice (§ 12931), compromising the Legislature’s ameliorative purpose with no perceptible advantage to the employee, who simply gains a duplicative judicial remedy limited to tort damages. (See Shaner, supra,
Judicial interference with legislative prerogatives is particularly unwarranted where, as here, the Legislature continues to develop the statutory scheme in response to changing needs of employees, employers, and the public. For example, in the wake of this court’s decisions in Dyna-Med and Peralta, FEHA was amended to authorize the Commission to seek “actual damages” for “emotional injury” up to $50,000 (in combination with administrative fines) and up to $150,000 for violations of Civil Code section 51.7.
Even this limited example highlights the necessary balance of interests the Legislature strives to maintain in executing the collective public policy undergirding FEHA: employees must be protected from discrimination and recompensed for violations of their rights; employers must rectify unlawful practices and maintain compliance without undue economic burden; the public must remain confident that antidiscrimination policies are enforced without resulting in a hostile business environment.
The United States Supreme Court’s analysis in Bush v. Lucas (1983)
The court summarized the relevance of these circumstances as follows: “Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. . . . The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy
In my view, the court’s intercession will likely upset the careful balance the Legislature has achieved after more than 35 years of fine-tuning FEHA. (Cf. Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988)
II.
I would deny plaintiff’s Tameny claim for an additional reason related to the concern for its disruptive impact on FEHA.
For the first time, this court squarely confronts a case in which a common law action for wrongful discharge in violation of public policy derives solely from a comprehensive remedial statute specifically intended to vindicate the predicate public policy. On careful scrutiny, such an action is inconsistent with the rationale of Tameny and its seminal antecedent, Petermann v. International Brotherhood of Teamsters (1954)
The reasoning of the Maryland Supreme Court in Makovi, supra,
The Makovi court also considered similar development in the common law of other jurisdictions and noted, “The general theme running through the wrongful discharge ‘first round’ decisions of other courts is the absence of any other remedy for the employee discharged in contravention of public policy. The tort was created so that the prospect of a remediless employee would not undercut the policies and goals that other laws sought to further. Consequently, a majority of courts faced with the issue before us has held that the tort does not lie for a discharge allegedly motivated by some discrimination which is prohibited by statute where that statute confers a remedy.” (Makovi, supra, 316 Md. at pp. 612-613 [
The Supreme Court of Hawaii applied the same reasoning in rejecting a Tameny-type claim predicated on that state’s antidiscrimination law, Hawaii Revised Statutes section 378. “A Parnar claim [Parnar v. Americana Hotels, Inc. (1982)
In reaching their conclusions, these courts and many others have understood that Tameny-type claims are premised on closing a gap that would otherwise leave public policy vulnerable to employers that could flout it with impunity through their hapless employees. (See Rest.2d Torts, § 874A, com. h.) “Confronted with this ‘right without a remedy’ scenario, courts recognized a common law action in order to fill the legislative gap. [Citation.] When a statutory remedy is available, there is no gap and the justification for judicial creativity is absent. [Citation.]” (Crews v. Memorex Corp. (D.Mass. 1984)
When an employer jeopardizes a fundamental public policy such as the administration of justice, the right to discharge may be limited both “by statute” and “by considerations of public policy.” (Petermann, supra,
As previously noted, “FEHA establishes a comprehensive scheme for combating employment discrimination. [Citations.] As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. [Citation.]” (Brown v. Superior Court, supra,
Applying such a limitation to these claims does not raise a question of FEHA preemption or exclusivity. The court’s task is to define the parameters of a common law tort action for wrongful discharge in violation of public policy, not to interpret FEHA qua a statutory scheme “to provide effective remedies which will eliminate . . . discriminatory practices [in employment].” (§ 12920; cf. Rojo, supra,
This restriction also does not contravene the construction of FEHA articulated in Rojo, supra,
This proposed limitation is quite narrow and would apply only when, as here, adequate statutory remedies are available. When necessary to fill legislative gaps and to effectuate public policy, Tameny claims would still be available consistent with their rationale. The intensity of the majority’s animosity toward such a modest proposal is indeed curious for by definition there is nothing inexorable about the development of the common law. The court created the tort of wrongful discharge in violation of public policy; the court has in the past demarcated its scope; the court may further delimit its application as “reason and equity so demand.” (Mosk, The Common Law and the Judicial Decision-making Process, supra, 11 Harv. J.L. & Pub. Pol’y at p. 36.) In expanding the public policy exception to cases in which the statutory predicate incorporates a comprehensive remedial scheme, the majority cite no unmet need, articulate no injustice lacking redress. Rather, they ironically seek to justify an expansion of court-made law by claiming—to paraphrase Flip Wilson—“the [Legislature] made [us] do it.” The Legislature’s failure to make FEHA exclusive does not compel this court to create duplicative remedies. This is not an issue of legislative intent or acquiescence, but of common law evolution consistent with statutory policy.
A clear majority of courts faced with precisely the same opportunity for expansion of the common law have prudently declined the temptation and have refused to recognize Tameny-type claims when “the same statute that enunciates the public policy . . . also provides the structure for pursuing a claim for [wrongful discharge] in contravention of its terms.” (Grzyb v. Evans, supra,
III.
Even without rejecting her Tameny claim because the statutory remedy adequately protects and vindicates the public policy at issue, I find plaintiff has failed to meet at least two of its criteria: that the public policy against age discrimination articulated in FEHA “inures to the benefit of the public at large” and that it is “fundamental.” (Foley, supra, 47 Cal.3d at p. 669.)
With respect to the “public benefit,” the majority conclude “there can be little doubt” this element is satisfied in part because “most California residents either are now or will become over-40 employees, thus creating an extraordinarily broad class of potential victims of age discrimination in employment.” (Maj. opn., ante, at p. 895, fn. omitted.) Granted. But “public” policy adequate to support a Tameny claim is not a matter of demographics; even a majority of the populace could not, simply by virtue of their numbers, establish the requisite societal benefit.
Nor does invoking FEHA’s general policy statement suffice. (§ 12920.) As previously discussed, the statutory scheme implicates a broader array of
In gauging whether a particular policy is “public” in this context, our discussion in Foley offers considerable guidance. The plaintiff alleged he was wrongfully terminated because he reported to his employer that his immediate supervisor was suspected of embezzlement at another job. (See Lab. Code, § 1102.5.) The court rejected his Tameny claim because “the duty of an employee to disclose information to his employer serves only the [latter’s] private interest.” (Foley, supra,
An agreement requiring the employee to retire at some designated age over 40 would not contravene any societal interest; thus, the policy against age discrimination does not meet this element of a Tameny claim. (Cf. Rittenband v. Cory (1984)
The fact the Legislature has recognized the “opportunity to seek, obtain and hold employment without discrimination because of’ age as a “civil right” (§ 12921) further suggests the employee’s policy interest in FEHA is substantially personal. As a general rule, civil rights are those guaranteed to the individual by constitution or statute. (See Black’s Law Dict. (4th ed. 1968) p. 1487, col. 2; Webster’s New World Dict. (3d college ed. 1988) p. 257.) The public’s interest incorporates, but also transcends, the employee’s because it extends to an overarching concern for a vigorous state economy as well.
I also disagree with the majority’s conclusion the policy against age discrimination is fundamental in the sense required to establish a Tameny claim. (See Sands Regent v. Valgardson, supra, 105 Nev. at pp. 439-440 [
The United States Supreme Court pointedly drew the distinction in Massachusetts Bd. of Retirement v. Murgia, supra,
FEHA itself reflects a recognition that some age-based distinctions are acceptable. (See §§ 12941, 12942; see also §§ 75075-75079; cf. Civ. Code, §§ 51.2, 51.3 [authorizing age discrimination in housing “to meet the physical and social needs of senior citizens”].) Furthermore, the legislative response to age discrimination in employment and elsewhere has resulted primarily from changing demographics. (See Schuck, supra, 89 Yale L.J. at pp. 40-41.) The California Constitution prohibited sex discrimination as early as 1879 (Cal. Const., art. XX, former § 18); race and several other characteristics were added in 1974 (Cal. Const., art. I, § 8), but age remains conspicuously absent from the list. On the other hand, a substantial number of the statutes cited by the majority protecting against age discrimination (maj. opn., ante, at pp. 896-897) were enacted much more recently.
IV.
To deny plaintiff a FEHA-based Tameny claim is not to condone or countenance discrimination in employment because of age or on any other
The peripatetic development of the common law tort action for wrongful discharge in violation of public policy has until now proceeded with a measure of judicial caution. (See Jennings, supra,
I would affirm the judgment of the Court of Appeal.
Further unspecified statutory references are to the Government Code.
As another example of the Legislature’s concern for balancing the respective interests implicated in FEHA, the 1992 amendments incorporate provisions of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) for the purpose of “strengthen[ing] California law in areas where it is weaker than the [ADA] [including reasonable accommodation of employees with mental disabilities] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].” (Stats. 1992, ch. 913, § 1.) The ADA applies only to employers with 25 or more employees, which was the initial threshold number in FEHA with respect to individuals with mental disabilities. (§ 12940, subd. (0(1).) Broader application to all employers having 15 or more employees was phased in within 18 months. (§ 12940, subd. (0(1); see § 12926, subd. (d)(2).)
At the same time, the Legislature enacted section 12940.3 directing various agencies to undertake “a study or survey of the costs, including litigation and reasonable accommodation expenses and other impacts on California employers of 15 or more employees, resulting from compliance with [the ADA] . . . .” The study is in part to “provide a basis for a recommendation to the Legislature and the Governor concerning whether the hardships imposed upon businesses outweigh the benefits to persons with disabilities when the requirements of [the ADA] are extended to California employers of 5 to 14 . . . employees” “by amending [FEHA] to include people with mental disabilities as a protected class.” The designated
Accord, Walt v. State (Alaska 1988)
See, e.g., Corbin v. Sinclair Marketing, Inc., supra,
See Mein v. Masonite Corp., supra,
See, e.g., Civil Code section 51.2 (1984); Education Code sections 260 (1982), 262 (1982), 262.1 (1988), 262.2 (1988), 66030 (1991), 69535 (1976); Government Code sections 19793 (1977); Health and Safety Code sections 1317.3 (1987), 1365.5 (1990); Unemployment Insurance Code section 16000 et seq. (1983).
In support of their conclusion that plaintiff has identified a fundamental public policy, the majority also cite statutes similar to FEHA in numerous other jurisdictions. (Maj. opn., ante, at p. 897.) As noted, at least seven courts have rejected Tameny-type claims predicated on statutory prohibitions against age discrimination in employment. (Ante, at p. 925, fn. 5.)
Some Fruits of Solitude.