Stevenson v. Superior Court

Aug. S052588. [No. 1997.] Petitioner, STEVENSON,

JOAN COUNTY, OF LOS ANGELES Respondent; THE SUPERIOR COURT HOSPITAL, in Interest. Real Party HUNTINGTON MEMORIAL Counsel Voorhees, Lawson, Traber, & Bert Fernando Voorhees Olguin,

Antonio M. M. Petitioner. and Theresa Traber for Olguin M. Posner, Ventrell-Monsees, Laurie A. McCann and William C.

Joseph Cathy on behalf Petitioner. as Amici Curiae Quackenbush for Respondent. No appearance Garrard, Davis, Fonda,

Fonda, & Peter M. Laurie DeYoung, Hilberman Barrow, Robert M. & P. Todd E. Croutch and Brian O’Flaherty Belgum, for Real in Interest. Dato Party Cathcart,

Gibson, Crutcher, & Mark Dunn David A. Snyderman, Crosby, Martin, R. & C. Anna Masters and Ellen Segobia Roach James Heafey, May, Curiae behalf of Real Interest. Party Brostrom as Amici Opinion from discrim-

KENNARD, J. law prohibits employers California as workers over the age older workers defined inating against (statutorily Fair and Act 40) Housing because of their age. Specifically, Employment Code, “an (Gov. et makes it unlawful (FEHA) seq.) § dismiss, or to to or to for an refuse hire employ, discharge, employer practice reduce, demote, of 40 on the age ground or individual over the any suspend, or for such action.” in cases where the law compels provides of age, except (a).)1 The FEHA defines an as (Id., person subd. “employer” § (d).) (Id., five more subd. persons.” or employing “regularly full, provides: 1In Government Code section 12941 employ, “(a) employment practice employer an to to hire or or It unlawful for refuse is an dismiss, reduce, demote, any of 40 on the discharge, suspend, or individual over compels This age, except provides or for such action. ground of cases where law rejection or termination of shall not be construed make unlawful section requirements job or for applicant employee failed meet bona fide where individual held, changes pension sought require any or or or to bona fide retirement position or contract, or until existing collective-bargaining agreements during the life of the programs or first, 1, 1980, preclude physical such January whichever occurs nor shall this section have made to applicants employees employer may as an make or medical examinations position job sought or or fitness held. determine staff, hiring promotion existing experience within or “Promotions on the basis seniority hiring under training, rehiring prior employer, on the basis service (1994) 8 Cal.Rptr.2d v. Marralle Cal.4th Jennings In we held that an older worker who has been dis- (Jennings), P.2d 1074] (and an fewer than five workers having because of charged age by employer FEHA) may thus not to the subject prohibition in violation of But a tort claim for wrongful discharge public policy. bring whether an left for future determination the older question we specifically common assert such a law claim with five against employer worker (Id. or more workers. The issue we left we will Jennings open decide here. that,

We conclude five or applied employers regularly employing workers, the more policy prohibiting employment older workers satisfies each of the criteria this court has established as a common law action for tortious necessary support wrongful discharge: (the FEHA), has been articulated in a statute benefits society at “fundamental,” is “substantial” and large, and was well established at the that, time of the here. We further conclude because the claims, does not common expressly preempt any law tort the FEHA’s age discrimination remedies are not exclusive and do not bar a tort claim in violation of the wrongful discharge public policy against age discrimination. History

I. Facts and Procedural demurrer, Because this matter comes to us we take the facts from plaintiff’s of which are deemed true for the complaint, allegations limited purpose whether has stated a determining viable cause plaintiff (Livitsanos of action. Superior Court Cal.4th 747 [7 1195].) Cal.Rptr.2d P.2d 60,

When she was at the discharged Joan Stevenson age plaintiff (Stevenson) had worked as an of real employee party Huntington interest (the Memorial for over Hospital Hospital) her years, performing job 1992, and competently commendations and receiving increases. pay During before her shortly Stevenson had been on a discharge, medical leave of absence to the approved by Hospital. According Hospital’s personnel manual, and policies procedures return from an upon medical leave approved of absence for or or illness occupational an nonoccupational injury employee schools, universities, recruiting program high an established colleges, from and trade schools not, themselves, shall in and of constitute a violation of this section. “(b) right This section employer, employment agency, shall not limit the of an or labor union to select or refer the qualified person among better from all applicants job. for a The proving person claiming burden of a violation of upon persons this section be or shall the violation occurred.” The same classification and shift. job reinstatement to the is guaranteed “not to states that if it is for business reasons possible manual further shift, to the same classification an job employee reinstatement guarantee which, . . in the of the to . job judgment will be reinstated available is to and “will be perform” given hospital, employee qualified same and shift when job be to that classification reassigned opportunity next available.” 1992, 6, Stevenson that her right informed Hospital

On November unspec- be until December 1992. On an guaranteed reinstatement would that she November Stevenson notified Hospital ified day during time, told Stevenson that return to work. At that the Hospital was ready shift, to her classification and original she would not be allowed return job “to another classification and shift job and it denied her reinstatement her later classification job reassignment original opportunity shift.” “some De-

The terminated Stevenson’s time after Hospital her It did so “because of and to age deny cember 1992.” [Stevenson’s] entitled as a to obtain benefits to which she was and eligible opportunity 30-year employee.” filed termination action wrongful

On December Stevenson Her first amended which complaint, pleading Hospital. here, into four causes of action: allegations alleged issue contains grouped contract; (2) violation of a (1) breach of employment an med- terminating employee taking policy against approved leave; violation of a wrongful discharge public policy against ical discrimination; and fair good covenant of faith implied breach dealing. in its demurred to Stevenson’s first amended complaint Hospital claims), (the contract the first fourth causes of action

entirety. Regarding had not the exist- sufficiently alleged asserted that Stevenson Hospital written, oral, the second and third causes ence of a or contract. As to implied claims), maintained that fundamental (the of action tort the Hospital was not violated either claims, medical These tort termination of for leave. employment taking also had according to the were barred because Stevenson Hospital, under the exhausted her remedies FEHA. statutory The to the Hospital’s trial court overruled demurrer with respect contract claims. As to tort claims for in violation wrongful discharge the trial court sustained the fundamental demurrer without public policy, to amend. Stevenson the Court of petitioned leave for a writ of Appeal mandate to set aside this latter of the trial court’s order. part

The Court of issued an alternative writ but denied Appeal ultimately The Stevenson’s court devoted a of its to the petition. large portion opinion central of whether question wrongful Stevenson’s claim was discharge a fundamental in supported by public policy against age discrimination that we had left this employment. Although recognizing issue expressly open 8 Cal.4th Jennings, supra, the Court of nonetheless viewed Appeal as to the logic Jennings conclusion that leading ineluctably discrimination in does not violate fundamental public state, of this no matter how an many employees employer regularly The Court of ended its employs. Appeal opinion by “respectfiilly urg[ing] Court to further Supreme this area of the explore troubling law at its next We opportunity.” Stevenson’s for granted review.2 petition

II. Discussion

A. Origins Tortious Discharge Claim California,

In an employment be termi- relationship may generally that, nated either by otherwise, “at will.”3 party This means unless they agree either party may terminate the employer-employee without relationship Code, (Lab. 2922.) occasion, cause. On have abused the at employers will § relationship by discharging employees reasons contrary or expressed constitutional mandates. In courts have response, to, of, created an exception the at will qualification employment principle. is exception this: An employer may an at will discharge employee for a reason that violates fundamental This policy. exception enforced tort law through by permitting discharged assert employee a cause of employer action for wrongful discharge violation fundamental public policy. review, 2As petition stated in the the issue presented here is discrimi- “[w]hether nation violates a policy thereby permitting fundamental a common law cause of action for discharge.” tortious Stevenson has abandoned her second cause action—wrongful taking in retaliation for approved medical leave. 3Firmly law, entrenched in traditional American common the at will particular doctrine is a application general of the more doctrine of freedom to An put contract. 1877 law treatise it “ us, way: is, facie, ‘With general the rule is inflexible hiring prima that a or indefinite will; hiring at and if the seeks yearly hiring, servant to make it out a upon the burden is him by proof. to establish it hiring . . . indefinite ... is determinable at will [A]n either ” (Comment, Policy Exception Employment-at-Will The Public party.’ to the Doctrine: Its Application

Inconsistencies in 1583, 1586, Wood, 68 Tul. quoting L.Rev. A Treatise on the Law of Master Servant 888 to first California court decision a tortious dis- recognize

The appellate v. claim was Petermann International Brotherhood Teamsters charge Petermann, (Petermann). In (1959) 174 184 P.2d the Cal.App.2d [344 25] after he for to discharged refusing perjure sued his was plaintiff employer the an before trial during investigative hearing himself Legislature. based on summary court motion the granted employer’s judgment (Id. 187.) at will The Court Appeal employment relationship. parties’ reversed, be to the state “It would obnoxious interests of the stating: morality sound allow an contrary employer declined to an ... discharge ground employee employee (Id. 188-189.) The Petermann noted that Penal commit court perjury.” derives from the perjury, general principle Code section prohibiting interfere of false tends to testimony any proceeding presence “[t]he and the of justice.” administration affairs administration proper public (Petermann, supra, p.at Tameny

This court addressed the tortious claim in v. discharge first Co. 610 P.2d Atlantic [164 Richfield There, the filed a (Tameny). wrongful 9 A.L.R.4th plaintiff 314] action that his had fired for refusing him discharge alleging employer in an scheme to fix retail In his prices. complaint, participate illegal gasoline contract theories of discharge. both and tort plaintiff pleaded wrongful without as to After the trial court sustained demurrer leave to amend claims, tort dismissed the contract claim plaintiff remaining appealed Petermann, for the Citing from the defendant. resulting judgment reversed the that a dis- judgment, holding we Cal.App.2d We “an obligation claim sound in tort. declared that charge employer’s refuses to refrain from who to commit a criminal discharging employee ‘ set forth in any express “promise[s] act does depend upon implied ’ [citation], contract” but rather [employment] duty imposed by reflects policies all in order upon employers law implement fundamental 167, 176, (Tameny, supra, Cal.3d penal embodied the state’s statutes.” added.) removed doubt about the of a tortious italics Tameny propriety but claim on violations of fundamental it policy, based legal new left unanswered about the claim’s many questions scope requirements. Sentry v. Analysis Discharge: Tortious Gantt Refining

B. Insurance claim in the framework of the tortious discharge court further defined

This Insurance Cal.4th Sentry Cal.Rptr.2d Gantt There, the was (Gantt). discharged plaintiff constructively P.2d 680] of a co- the investigation to lie during pressures resisting employer’s excep- policy Recognizing public complaint. harassment sexual worker’s rule, of claims analyzed types court this “at will” the general tion to the principle its broad acceptance, “Yet despite exception: to this subject than stated applied. is more easily exception the public policy underlying the line how to draw course, where and in determining of lies difficulty, those and matters of public policy, involve claims that genuinely between This and employee. between employer ordinary disputes concern merely that is alleged the public policy on whether large part depends determination (Id. at remedy.” for such a potent to the basis clear sufficiently provide 1090.) (1988) 47 Cal.3d 669-670 [254 Data Corp. v. Interactive

Citing Foley 373], to a tort support this court that explained 765 P.2d must a matter “the involve policy question for wrongful discharge, action or proprietary rather than a purely personal that affects society large “fundamental” or and must be only interest of the employer,” plaintiff “substantial,” time of the discharge. “well established” at the but also 1090.) This court noted four categories 1 Cal.4th (Gantt, supra, a claim of wrongful discharge conduct under subject protection employee violate a statute “(1) refusing in violation of fundamental public policy: [citation]; (3) [citations]; (2) exercising a statutory obligation performing [citation]; violation an alleged or statutory right privilege reporting 1090-1091, (Id. fn. at pp. statute public importance [citations].” omitted.) decisions and this

Based a historical of tortious survey discharge upon court’s reluctance to declare without legislative guidance, to fundamental court observed: “A tethered policy exception carefully public strikes statutory provisions that are in constitutional or delineated policies balance the interests among employers, employees proper 1095; 1101-1104 (Gantt, but see also id. 1 Cal.4th public.” (c Kennard, J.).) of a tort claim for & In the context dis. opn. onc. constitutional discharge, tethering policy specific public interference with serves not to avoid only judicial statutory provisions domain, notice of but also to ensure that have adequate legislative employers to the they the conduct that will them to tort liability employees subject bound, minimum, the fundamental at a to know “The discharge: employer nation in their constitutions of the state and policies expressed statutes; limited, no impediment so policy exception presents (Id. at p. within the bounds of the law.” employers operate manner, this court established a set requirements In this First, the claim. policy must a tortious satisfy support Second, must be either constitutional or statutory provisions. supported in the sense that it “inures to the benefit of the must be “public” Third, the interests of the individual. rather than serving merely public” Fourth, have been articulated at the time of the discharge. must policy must be “fundamental” and “substantial.”4 The FEHA and Tortious v. and v. Discharge: Rojo Kliger Jennings C. Marralle

Stevenson that fundamental alleges public policy prohibits who are under the FEHA. subject regulation discrimination by employers This court has discussed the between the and previously interplay claims, in common law such as violation of wrongful discharge 130, 52 65 801 P.2d v. Cal.3d policy, Rojo Kliger Cal.Rptr. [276 Gantt, 8 121. Cal.4th (Rojo) Jennings, supra, Together supra, 373] 1083, 1 Cal.4th these decisions the basis for our here. analysis provide 52 Cal.3d which this court decided more than one Rojo, supra, year Gantt, 1 in which this before Cal.4th was the first decision court claim for addressed tortious discharge employment prohib ited the FEHA. The sued their former Rojo plaintiffs employer, claims, other tortious constructive discharge. They alleged asserting, among been leave their that had forced to their they escape employ er’s sexual harassment. The trial court for the summary judgment granted had action was barred because failed employer, ruling plaintiffs’ they exhaust their administrative remedies under the FEHA. Disagreeing, are we concluded that the FEHA’s remedies for claims, that a need not exclusive and do not common law supplant plaintiff not exhaust administrative remedies under the FEHA before asserting claim, common law and that the had a viable tortious plaintiffs pleaded funda claim because sexual harassment in the violates workplace 65, 70-71.) mental (Rojo, supra, public policy. our with a of the “salient features” of the

We began analysis description FEHA: (FEPA) enacted in

“The California Fair Practices Act was Employment Code, (former Lab. 1410 et and recodified conjunc- seq.) § Code, (former Health & Saf. tion with the Rumford Fair Act Housing 992, 4, (Stats. 3140 et to form FEHA. ch. 35700 et seq.) § § the terms “substantial” 4This court has not articulated distinction between context; constituting single accordingly, “fundamental” as used in this we treat them as requirement. on specified freedom from job The law establishes seq.) Code,] 12921.) ([Gov. It is a civil including age], right. sex grounds, [and § ([id.,] 12920) is that such discrimination declares § ([id.,] 12940). (Commodore Home Sys employment practice unlawful § tems, Cal.3d Court Superior Inc. 912].) Depart creates two administrative bodies: statute P.2d Code,] ([Gov. and Housing (Department) of Fair Employment

ment conciliate, redress is to seek investigate, whose function 12901), § and Hous 12930), Fair ([id.,] and the Employment claimed discrimination § 12903), (Commission) ([id.,] adjudica which performs Commission ing file ([id.,] 12935). An rulemaking aggrieved may functions person tory § ([id.,] 12960), which must promptly with the Department complaint § valid, If deems a claim it seeks ([id.,] 12963). the Department investigate § conference, conciliation, and per the matter—in confidence—by resolve ([Id.,] 12963.7.) If that fails the inappropriate, Depart or seems suasion. § ([Id.,] an to be the Commission. ment issue accusation heard may 12965, (a), 12969.) on the prosecutor subd. acts Department §§ the (Dy the case before Commission. argues complainant’s accusation 1379, na-Med, Inc. v. Fair & Com. 43 Cal.3d Housing Employment 67, 1323].) P.2d 1383-1384 Cal.Rptr. [241

“If within 150 the of a no accusation is issued after days filing complaint, or if the case and the earlier determines not to the Department prosecute resolved, is not must the give complainant matter otherwise Department to sue’ letter. then a civil suit ‘under this ‘right Only bring that person Code,] 12965, (b); ([Gov. subd. Inc. v. part.’ Employment Fair Dyna-Med, § Com., 1384; & Housing Systems, 43 Cal.3d at Commodore Home supra, 211, Court, 213-214.) Inc. v. 32 Cal.3d Superior supra, “The broad FEHA is set goal of the forth at section [Government Code] 12920, which states in ‘It is declared as the part: hereby pertinent public of this state it is policy necessary safeguard that protect right seek, obtain, of all and hold without persons opportunity employment race, creed, color, religious account of abridgement condition, national medical sta origin, ancestry, physical marital handicap, ” tus, 65, 72-73, omitted.) sex or fn. age.’ supra, Cal.3d (Rojo, that had not made FEHA’s Concluding employment exclusive, we an earlier decision of remedies quoted “ court: ‘The FEHA meant to or be supplement, supplant supplanted was remedies, antidiscrimination in order by, existing give employees maximum to vindicate their civil rights against opportunity ” ([Gov. Code,] (a).)’ Cal.3d (Rojo, supra, . . . subd. . §

74-75, & Employment Housing State Personnel Bd. Fair Com. quoting 354].) 703 P.2d We agreed 39 Cal.3d intent to “am- Legislature’s of the reflected wording clearly common law remedies relat- injuries not abrogate, employee’s plify, 65, 75.) 52 Cal.3d (Rojo, supra, discrimination.” ing a valid tortious dis Rojo possessed Holding plaintiffs claim, fundamental we concluded that sexual harassment violates charge Data Corp., supra, v. Interactive policy. Citing Foley public Const., I, declared a (Cal. 8) that the Constitution art. we found state (Rojo, sex discrimination fundamental public policy against 65, 89-90), “inured” and that this fundamental Cal.3d of the and was established at the time to the benefit large firmly 90-91). (id. at Because the importance plaintiffs’ sexual harassment served seemed interest that the we no detailed for our conclusion that provided support self-apparent, “No extensive discussion is needed to establish the is fundamental: interest in a free from the influ fundamental public workplace pernicious 90, omitted.) (Id. of italics ence sexism.” Because the California Constitution established the existence a amply we did fundamental sex discrimination employment, public policy against estab- whether the same was also not consider public policy independently sex discrimination in lished the FEHA’s against employment. by prohibition Thus, it define does Rojo, supra, although important aspects and common law between the FEHA wrongful discharge relationship claims, did not decide whether the FEHA itself be a source of expressly fundamental public policy. decision, a examined 8 Cal.4th -Gantt

Jennings, supra, post the FEHA’s discrimination in whether prohibition against age such discrimina established a fundamental sufficiently public policy against claim who tion for of a wrongful discharge against employer purposes There, an em from that same prohibition. was statutorily exempt terminated of her sued her age employer because allegedly ployee in violation of fundamental public policy. employee did not claim the FEHA because her employer had no under statutory Code, (d) subd. (See five or more workers. Gov. employ regularly or more as a five “regularly employing [defining “employer” person persons”].) of the fundamental public policy

Central in was the Jennings scope Gantt, 1 Cal.4th rule. to the “at will” employment Citing exception that, tortious wrongful discharge support affirmed this court either constitutional claim, grounded must be on policy a fundamental public 121, 130.) To determine 8 Cal.4th (Jennings, supra, provisions. discrimination age against a fundamental public policy this state has whether FEHA, references to prior statutory we in discrimination, considered employment, 130-135.) (Id. law. at case relevant discrimination of employment that the FEHA’s prohibition We noted is statute which “The FEHA a was unambiguous: older workers of age discrimination on basis public policy against states a clearly 121, 130.) But we observed also 8 Cal.4th (Jennings, supra, employment.” this all policy employers: had not extended public that the Legislature does not regularly no defendant remedy FEHA gives “The plaintiff (Ibid.) five or more persons.” employ articulation provide necessary public the FEHA could

Because fewer than five employers having against age by As sources this legislative policy. we examined other possible employees, has declared Jennings, broadly we observed Insur in the Unemployment policy against workplace “It of the State Code which provides: ance section . should be to its fullest extent. . . of California that used manpower and unreasonable rules use ... arbitrary Accordingly, by employers of age which bar or terminate the grounds offend[s] 121, 130-131.) (See State.” Cal.4th Jennings, supra, concluded, however, that Insurance Code section 2070 We Unemployment fundamental public policy against age could a sound basis provide been because it had originally small-scale employers an exclusion for em with enforcement that contained coupled provisions 121, Cal.4th (Jennings, fewer 8 supra, than six having employees.5 ployers discrim 132.) Nor we find other statutory against age could prohibition (Ibid.) the FEHA. ination outside Next, the ambit of small-scale from we observed that exclusion employers “ ‘relieving the administra- FEHA’s serves two prohibitions purposes: the are of enforcement where few job opportunities of the burden body

tive Jennings, Legislature Unemployment in enacted Insurance explained the 5As this court 1961, former section 2072 the same together with section 2071 and section 2070 Code 1, 1961, 1623, 3517.) discharge (Stats. 2072 made it unlawful ch. Former section code. § age, ages solely ground but section employee of 40 and an between 1972, Legislature In employers employees. with at least 6 prohibition this limited alterations, it, with minor as former section 1420.1 repealed section 2072 and reenacted Code, Code, time, limiting this of the Labor at the same in former section 1413 Labor while 1144, 1, 2211.) (Stats. ch. prohibition employers employees. more with five or provisions of by the current provisions repealed replaced Labor Code were in turn These (See 121, 131-132.) Jennings, supra, 8 Cal.4th FEHA. available, and . . . out of situations which discrimi keeping agency ” is too subtle or too to make personal nation effective solutions possible.’ 121, 132-133, 8 Cal.4th (Jennings, supra, Robinson v. Fair quoting Employ ment & Com. 2 Cal.4th Housing Cal.Rptr.2d 767], P.2d italics added We viewed these by Jennings.) as incon purposes sistent with intent an to establish or authorize a common by action, law cause of to be asserted both and small-scale large- in violation of a employers, wrongful discharge against age discrimination.

We summarized our conclusions this “While the FEHA includes way: age among discrimination categories protected by public policy against it not make employment, does discrimination of less than by employer five unlawful. persons four fewer are under Employers persons exempt FEHA and no other law makes discrimination on the basis of age unlawful. It would be unreasonable to who are expect employers expressly from ban on discrimination to exempted nonetheless realize age must with the law from which are they comply under they exempted tort We do not ascribe such a pain possible liability. to the purpose (Jennings, 135-136.) Cal.4th Legislature.” supra, conclusion, In we left of whether drawing explicitly open question fundamental discrimination in public policy generally age prohibits employ ment: “Whether discrimination on the basis of violates a age ‘fundamental’ has not been resolved this court. We need not by decide that here since the on which relies question ‘public policy’ plaintiff to defendant. He is applicable not an to the ‘employer’ subject of the FEHA.” provisions (Jennings, 8 Cal.4th the FEHA

Viewing provisions relating as a whole, we must now determine whether a common law tort they support action for wrongful in violation of a fundamental public policy who against age are not employers statutorily exempt under the FEHA.

D. Age Discrimination to the FEHA by Employers Subject earlier, claim, As discussed for a a it policy support (1) must be: (2) delineated in either constitutional or statutory provisions; in the sense that it “inures to the benefit of the than “public” rather public” individual; (3) the interests of the well established at the time serving merely substantial and fundamental. Three of these four discharge; are not requirements reasonably in this case. subject dispute delineated fully has been First, discrimination age against the policy discrimi- age policy against declares general The FEHA only statute. discrimination against also prohibits but expressly in nation employment, or five that regularly like the employ Hospital, workers by employers, older employees. more condemn-

Second, policy doubt that the FEHA’s express there can be little benefits one that older workers is discrimination ing against employment than to more life has risen average expectancy Because large. over-40 become either are now will California residents most years, victims broad class potential thus creating extraordinarily employees,6 of Moreover, effects in pernicious discrimination employment. age who are to the employees in are not confined employment age discrimination in has recognized Unemployment As the targets. its immediate workers violates discrimination older against Insurance Code section extent,” be its fullest should used to “manpower re- human of the benefit of valuable thereby society large depriving Comment, Theory (See the Hostile Environment sources. also Expanding Far Too Far? 23 Pepperdine How Is Age to Cover Discrimination: is harmful to society discrimination “age L.Rev. 570 [observing older workers from it millions of “prevents productive whole” because .”].) age . to the national . . economy Finally, practice contributing discrimination, discrimination, do- “foments other invidious forms like Code, 12920), (Gov. making mestic strife unrest” in workplace less work environment. ultimately a more stressful and productive Third, was the FEHA’s discrimination against age employment earlier, As noted well established when the Stevenson. Hospital discharged the FEHA has older workers from protected employment of its age its the statutory predecessors since enactment in effect since had been continuously discrimination provisions previously 1961. the FEHA’s express prohibition

There remains whether only question is and fundamental. discrimination in substantial age against when a determining This court has not articulated test action for a cause of substantial and fundamental sufficiently support case, however, we have identified certain In this tortious wrongful discharge. against age lead to conclude that the FEHA’s policy considerations that us is indeed fundamental. to the ways discrimination is similar against age important The policy discrimination, that are policies unquestionably race and sex policies employ- observed, applies only to prohibition FEHA’s 6As we have Code, (a).) (Gov. subd. ees “over the of 40.” § discrimination, fundamental. Like race and sex discrim age and substantial the basic that each should be on the person judged ination violates principle merit, rather than reference to by group stereotypes. Age, basis of individual sex, workings race and is the nature rather than the product like choice; free once the status of over 40 is as individual’s acquired, being attacks the and immutable as race or sex. discrimination Age permanent or sex much the same fashion as race sense of self-worth in individual’s Indeed, sometimes (or as it is discrimination age “ageism,” discrimination. “ and discrimina called) has been defined as systematic stereotyping ‘[a] old, accom sexism because are as racism and they just tion against people senile, Old are categorized this with skin color and gender. people plish ” manner, (Whit in in old-fashioned and skills.’ thought morality rigid 453, 456, ton, (1997) 46 DePaul L.Rev. Paternalism and Ageism: Prejudice Butler, Intervention Dispelling Ageism: Cross-Cutting quoting Sci., 138-139, Soc. fn. Annals Am. Acad. Pol. & FEHA, in has that discrimination In the Legislature recognized age in to sex and race discrimination is ways employment comparable important all all three to be against policy by encompassing by declaring the FEHA’s within the same broad Because exception three prohibition. five workers discrimi- only age fewer than employers having applies discrimination, exception the existence of this nation but also to race and sex in discrimination is age itself that the prove policy against does race and sex than the policies against less substantial and fundamental way discrimination. 121, 131-132, the 8 Cal.4th Jennings, supra,

As this court observed five or having by persons discrimination against age policy than thirty-five been the law of this state for more more has employees reaffirmed it at least twice by which time the has years, during it From this it. embody history, reenacting provisions have substantial infer that the has proven reasonable to value. enduring

Further, observe that the FEHA’s general prohibition we a broader policy expression is a particular a wide has articulated through discrimination that the Legislature against age list and her amici curiae Stevenson of California code provisions. variety or imple- 30 California code sections prohibit over education, such as areas specific ment a against age Code, (See, Civ. care, state e.g., use employment. health land regulation, id., Code, programs]; 51.2 Gov. [housing]; [state-funded § § 1317.3, 1365.5 [health & Saf. Code use Health regulation]; [land §§

897 262.1, 262.2, 66030, [education]; Gov. 260, 262, 69535 Code, care]; Ed. §§ Code, service]; 19706, 18932, 19700, Lab. 1777.6 Code, § [civil §§ Code, contracts]; et seq. [employment Ins. Unemp. works [public § evidence that further workers].) These laws provide older training as important discrimination the policy against regards law. rooted in California is now firmly that this policy in discrimination additional assurance Finally, the laws be found in and fundamental may is substantial considered a has been in employment Age other jurisdictions. United States action to warrant of sufficient gravity legislative matter (29 Act Employment federal Discrimination Age through Congress And, Association amicus curiae American et seq.). U.S.C. § out, in employment against age Persons laws points Retired (See of Columbia. other states and the District been adopted have 41-1463; Ariz. Ann. Colo. Rev. 18.80.220(a)(1); Rev. Stat. Alaska Stat. § § 8-2-116; 46a-60(a)(1); Del. Code Ann. tit. Conn. Gen. Stat. Stat. § § 760-10, 112.043; 1-2512; Ga. 711(a); Ann. Fla. Stat. Ann. D.C. Code §§ § § 378-2; Idaho 34-1-2(a), et Stat. 45-19-20 Haw. Rev. seq.; Code Ann. § §§ 5/2-102; 67-5909; Code 22- 5/1-103(Q), Ill. Stat. Ind. Code Comp. § § 44-1113; 9-2-2; 216.6; Rev. Stat. Ann. Ky. Code Kan. Stat. Ann. Iowa § § 4572; 344.040; 23:972; tit. Ann. Me. Rev. Stat. Ann. La. Rev. Stat. § § § 151B, 49B, Laws Ann. ch. 16(a); Code of art. Mass. Gen. Md. Ann. § 181.81; 37.2102; 4; Minn. Mo. Rev. Stat. Mich. Laws Stat. Comp. § § § 49-2-303; §48-1004; Rev. Nev. §213.055; Mont. Code Ann. Neb. Stat. § 354-A:7; 613.330; N.J. Stat. Ann. Rev. Stat. Ann. Rev. Stat. N.H. § § 28-1-7; 296; 10:3-1, 10:5-12; Stat. Ann. N.Y. Exec. Law N.C. N.M. § § §§ 14-02.4-03; 126-36, 143-422.2; Stat. N.D. Code Ohio Rev. Gen. Cent. § §§ 1302; 659.030; 4112.02; Or. Rev. Stat. Ann. Okla. Stat. tit. Code § § § 28-5-7; 955; S.C. Code Ann. 1-13- 43 Pa. Cons. R.I. Gen. Laws Stat. § § § 21.051; 80; 4-21-401; Code Tex. Lab. Code Ann. Utah Tenn. Code Ann. § § 34-35-6; 2.1-116.06; 495(c); tit. Va. Code Ann. Ann. Vt. Stat. Ann. § § § 49.44.090; §5-11-9; W. Va. Code Wis. Stat. Ann. Wash. Rev. Code § 111.322; 27-9-105.) Ann. Stat. Wyo. § reasons, that the FEHA’s policy against age For all these we are persuaded and fundamental substantial sufficiently that the We therefore conclude a tort claim for wrongful discharge. support four require- each of the discrimination satisfies FEHA’s against age law common has ments that this court established as essential support in violation of public policy. tort claim for wrongful have those who that the We now consider certain arguments Hospital, position, of the Hospital’s submitted briefs as amici curiae support have raised the conclusion that Stevenson against may dissenting opinion in termination violation the FEHA’s wrongful sue the Hospital in employment.7 discrimination against age first, law termination claim

The that a common argues, wrongful Hospital on the FEHA’s discrimination against age not be grounded prohibition in FEHA scheme because the employment provides comprehensive workers and therefore the Legisla- with discrimination older dealing exclusive this scheme would be ture must have intended that comprehensive this The would common law claims. Hospital recognizes preempt on sex conclusion claims based regarding court has reached a contrary 65, 73-82), 52 Cal.3d but it (see Rojo, supra, argues discrimination are because the claims based on sex or race distinguishable discrimination had been articulated in the such policy against clearly enacted, state Constitution when the FEHA was whereas public policy agree public policy he does not that a concurring opinion, 7In his Justice Baxter states that wrongful may supply public policy in FEHA element of a common law articulated Rojo Kliger recognition our in discharge claim because this “view is inconsistent with 65, 79, 373]) that the FEHA was not 52 Cal.3d 81-82 P.2d FEHA, structure of the but does intended to create new common law remedies outside the 910.) (Conc, post, opn., p. at preserve preexisting all common law remedies.” Rojo preserves preexisting in FEHA all Justice Baxter is correct that this court held that the preserved only “preex- remedies that were common law remedies. But we stated that it 65, 80) (Rojo, supra, and that under isting” but also those that were “alternative” injuries arising from discrimination in “plaintiffs the FEHA are free to seek relief for law, (id. italics). original in any state without limitation” Nowhere under Rojo the FEHA “was not intended to create new common law did this court state that event, point, in because common law remedies.” Such an observation would be beside decision, by by The common law claim for remedies are established court statute. having wrongful discharge public policy exception, violation of is no been established requirements previously opinion. in this One of the the court decisions we have described in a statute or a constitutional cause action is a that has been articulated 1083, 1095.) (Gantt, relationship supra, 1 The between a statute articulat- provision. Cal.4th relationship, to the ing claim is similar public policy and a common law Code, 669), (see articulating between a statute negligence per under the se doctrine Evid. instances, In the statute is used to negligence claim. both standard of care and a common law claim, purposes underlying the statute are and in both instances the establish the common law relevant, common law claim that the statute “created” the but in neither instance can it be said is essential or even relevant. legislative to “create” a common law claim or that a intention course, establishing common abrogate judicial decisions Legislature, remains free to defining law claims or their elements. because a “fundamental judgment in the here Justice Baxter states that he concurs age independent of the has on the basis of policy against discrimination (Conc, post, opn., since . . . .” Insurance Code section 2070 Unemployment existed unclear, however, tracing advantage perceives Justice Baxter what It is in the statutory antecedents to the FEHA’s 1961 public policy against Code, Legislature’s how the explain since Justice Baxter does not Unemployment Insurance law a common provisions any more or enacting intent in those was less consistent enacting intent in wrongful discharge claim than its FEHA. in the FEHA only articulated clearly has been against age anti- the FEHA’s to the Hospital, According predecessors. its only construed reasonably applying are most preemption provisions are indepen- enactment and before FEHA’s claims that existed law common claims, issue one at like the to common law its and not dent of provisions itself. here, in the FEHA that are grounded this court’s opinion stated in fails for the reasons argument

The Hospital’s as “whether decision of the issues for We there framed one in Rojo. from for injuries arising the exclusive remedy FEHA provides we 65, 73, omitted.) Notably, 52 Cal.3d fn. supra, (Rojo, in employment.” FEHA for decision to whether the provided did limit the issue sex, even discrimination because for remedy employment exclusive of Rather, we addressed of sex discrimination. concerned a claim Rojo though discrimination claims issue in relation to remedy employment the exclusive generally. this found that to the FEHA’s court provisions, for

Turning guidance clear in this Cal.3d regard.” (Rojo, supra, of the FEHA is meaning “[t]he 65, (a): 73.) Government Code section subdivision We quoted “ be deemed to of repeal any contained in this shall ‘Nothing part to Law or of other law this state any relating of the Civil Rights provisions of color, race, creed, ances- origin, discrimination because of national religious ” condition, status, sex, or age.’ medical marital try, physical handicap, 73; here.) first second italics added (Rojo, supra, p. Rojo, at italics added “ We law and that the noted that the ‘law’ of this state” includes common (Id. for common law various remedies discrimination. provides employment 74.) to at “the has an intent We concluded that manifested p. common law remedies abrogate, employee’s injuries amplify, (Id. 75.) to discrimination.” relating employment (c) next Code We turned our attention to subdivision of Government to occupy section that “it is the intention the Legislature providing encom- housing the field of discrimination regulation employment banning other laws of this exclusive all passed by provisions part, county, housing any city, city employment . . .” We concluded or other subdivision of the state . county, political law” and “a local only this indicates intent to legislative preempt provision no for the view that the FEHA was intended displace “provides support 52 Cal.3d (Rojo, state laws relating discrimination.” 65, 78, italics in original.) rule did the general

We not alter these consideration conclusions upon did not construction statute creates that “where a right remedial and detailed law provides comprehensive at common exist enforcement, (Rojo, supra, exclusive.” statutory remedy for its scheme Rather, because rule inapplicable we found general 52 Cal.3d relating other state laws intent to repeal FEHA disclaims “expressly discrimination, (ibid.), right because or otherwise” legislative law, existed at common invidious employment freedom from to infer a necessary “lacks the comprehensiveness the FEHA and because remedies for or alternative all intent displace preexisting legislative added). (id. italics discrimination” relied on two lines had Rojo that the defendant Finally, observing the exclusive remedy that the provides decisions holding appellate discrimination, this reli- we explained why caused by employment injuries 65, 81-82.) We rejected (Rojo, supra, ance was unavailing. had erred these decisions because the courts authoring line of authority first as evidenc- (c) Government section 12993 subdivision misconstruing by discrimination local not only intent preempt ing legislative because laws, line of authority We the second but also state laws. rejected invoked the “new had erroneously these decisions the courts authoring construction, does not which rule of statutory remedy” right—exclusive Law California Employment FEHA. Because amicus curiae to the apply line of misunderstood of this second our discussion has evidently Council in full: that discussion we authority, quote A. L. Randall Co. is Strauss v. a second line of cases

“Illustrative of Strauss, an discrimination In age 520]. Cal.App.3d [194 law cause of action case, a common filed a civil suit alleging the employee Court of The Appeal in violation of public policy. for wrongful defend sustaining an order following of dismissal affirmed the judgment for discrimina common law remedy that no Asserting ant’s demurrer. FEPA, creating concluded that the Legislature, the court tion predated (Id. at p. to be exclusive. statutory remedy intended the a new right, ‘ statute, aggrieved the party is created 520.) by “Where a new right . . . .” if one is provided statutory remedy to the its violation is confined by 518-519.) (Id. at pp. [Citations.]’ intent, however, its Strauss and progeny

“In determining legislative doctrine interpre remedy’ the ‘new invoked right—exclusive needlessly FEPA, disclaims FEHA, expressly like its predecessor Because the tation. laws, aids interpretative resort to relevant state no other displace intent any action cause vel non preexisting and the existence is required certain FEHA conferred While is irrelevant. particular narrow, but to remedies, its was and created new purpose new rights ([Gov. of discrimination. to victims available and remedies rights expand act, to seek are Code,] 12920.) plaintiffs Under the §§ free relief law, state under any in arising injuries from 65, 81-82, added, fn. italics 52 Cal.3d (Rojo, supra, without limitation.” footnote, concerning omitted.) any opinion we declined express In a (1983) 144 Cal.App.3d L. Randall Co. Strauss A. result in cause of action because the (Strauss), “age Cal.Rptr. 520] 65, 82, fn. us. (Rojo, supra, not before in that case was pleaded” state FEHA does preempt our clear holding Despite discrimination, whether preexisting law remedies for employment common not, rem- right—exclusive conclusion that the “new our despite express FEHA, to the construction has no application rule of edy” invocation of the Court Appeal’s our despite express disapproval Strauss, Em- amicus curiae California rule in Cal.App.3d its in reliance on reason- Law Council has fashioned argument ployment its of the “new right— of Strauss and in application ing particular exclusive rule of construction a claim for wrongful discharge remedy” argument discrimination. The same violation public policy against amicus curiae The by Group. echoed Hospital Employers two reasons essentially amici curiae offer its Hospital supporters articulated considered carefully plainly court’s disregarding in 52 Cal.3d the FEHA does not preclude conclusion that Rojo, supra, First, remedies, they common law tort whether not. preexisting point any in to the result concerning to the footnote Rojo declining express any opinion Strauss, in Because the Court of Strauss 514. supra, Cal.App.3d Appeal in discharge declined to a common law tort claim for wrongful recognize discrimination, of the argues violation against age Hospital policy of about the validity that our failure to that result doubts disapprove implies FEHA’s a law claim wrongful discharge policy common grounded Second, because the Rojo discrimination. they distinguish in the state grounded issue was sex discrimination at there policy against Constitution, is discrimination whereas the public policy against withstands in of these reasons grounded proffered itself. Neither scrutiny. above, a wrongful may support

As we have fully policy explained (1) must be satisfies four requirements. claim if it only (2) in “public” in or statutory provisions; delineated either constitutional merely serving rather than it to the benefit of public” sense that “inures individual; at the time of of the well established the interests In “fundamental.” that Rojo, “substantial” discharge; their relied common law support wrongful discharge the plaintiffs upon sex discrimination in To deter- claim was the policy against employment. claim, considered, we other things, mine of that whether among the validity sex discrimination in was sub- employment sufficiently the policy against In a entitled the claim. of the part opinion stantial and public support this court concluded it was. Discharge Policy,” “Tortious Public Against 65, 88-91.) was limited 52 Cal.3d That our (Rojo, supra, part analysis We have discrimination on basis of sex. did not occasion employment consider, consider, forms and did not whether other prohibited employ- discrimination, on the also age, ment such as discrimination basis would claim. forms of a common law Because different support wrongful discharge different reasons and discrimination be employment prohibited because the different vary strength, policies underlying prohibitions may of one form of conclusion prohibition employment will a common law claim does wrongful discharge necessarily support form of mean that a of a different prohibition employment Strauss, result will likewise. In on the declining express any opinion do 514, we this fact. Our merely were supra, Cal.App.3d recognizing decision in makes this We said that we no Rojo plain. expressed opinion the result in Strauss because the discrimination cause “age concerning action before us.” Cal.3d (Rojo, supra, pleaded th[at] case[] [not] fn. In of the entitled “FEHA Rojo, separate part opinion, this court devoted Claims,” to the whether the FEHA Preclusion Common Law question (Rojo, common law remedies for discrimination. preempted 65, 73-82.) In that we did not confine opinion, part on the of sex. our discussion claims of basis Rather, broader of whether the FEHA question we considered the preempted As noted common law tort claims for discrimination. any employment above, intent to concluded that “the FEHA . . . disclaims any we expressly laws,” non of “the existence vel a preexist- other relevant state that displace irrelevant,” that action discrimination is cause of for the ing particular in free to relief for from discrimination injuries arising are seek “plaintiffs law, in (Id. at italics under limitation.” state without employment any Strauss, Thus, result in our to the disapprove failure original.) expressly be in no that the FEHA suggests may 144 Cal.App.3d way common law an older worker’s interpreted precluding preempting in violation of the of action for discharge cause wrongful discrimination. against age to distinguish Rojo, supra, is the Hospital’s attempt

Equally unpersuasive there was grounded on the basis that the at issue 52 Cal.3d in the FEHA itself. Our conclusion that rather than Constitution state common not abrogate, employee’s intended “to amplify, the FEHA was (id. discrimination” to relating law remedies injuries Government Code section on the 75) language based primarily was be contained in this shall (a), that stating “[njothing part subdivision of this state relating . other law any deemed to . repeal. in this statutory language [among things]

because of other age.” Nothing artic- based on between common law claims policies a distinction supports articu- law claims based on policies ulated outside FEHA common tous would require itself. The argument lated within FEHA Hospital’s not see did this clear read into language qualification We to do fit to include. decline so. Rojo in the of this court’s opinion supports

Similarly, nothing language articulated within and distinction between public policies proposed it is we irrele- outside the FEHA. To contrary, carefully explained we law the FEHA and vant whether a common claim particular preexisted here by stating excluded distinctions of the kind that the suggests Hospital free to relief for arising that under the FEHA are seek injuries “plaintiffs law, without limitation.” from discrimination in under state 65, 82, added, omitted.) original 52 Cal.3d new italics italics (Rojo, supra, The is a on the first. variation remaining argument essentially Hospital’s if, concluded, that even as we have an older worker may Hospital argues in the FEHA’s prohibi- a common law termination claim ground tion Stevenson not against age employment, may rely her the FEHA to such a because did not exhaust admin- support claim she this court istrative remedies under the FEHA. As the acknowledges, Hospital administrative has contention that a must exhaust rejected plaintiff under the tort claim of wrongful remedies FEHA maintain a common law 65, 88.) But (Rojo, supra, violation of public policy. here because it was contends that this does not control holding Hospital discrimination and the policy against made in the of a claim of sex context Constitution, Stevenson sex discrimination embodied in the state whereas against age FEHA the public policy relies on the as the source of exclusively to the Stevenson According Hospital, employment. her claim unless support on the FEHA’s rely public policy provisions her, asserts that Hospital she establishes that the FEHA applies who do not exhaust its administrative does persons apply this from this remedies. The to draw for Hospital attempts argument support 121, in held that the court’s in 8 Cal.4th which we reasoning Jennings, supra, not the FEHA’s could articulation of a rely public policy against plaintiff did the age plaintiff’s discrimination because not to apply for the who statutory exemption employers who under qualified employer, fewer than five workers. regularly employed There, of 121. Jennings, the Cal.4th ignores logic This argument discrimination age this a common law tort action for court declined to permit because to be an with fewer than five against employees asserted employer only articulated effectively the discrimination was policy against such FEHA, for employers in the was with an exemption and there it coupled exemption, of statutory fewer than five workers. Because having to that the intended the public policy court was unable conclude Legislature to of employ- in this group discrimination against age apply Also, notice with fewer than five workers lacked reasonable ers. employers that their conduct could them subject liability. Because the has Hospital of these considerations here. applies

Neither workers, intended the Legislature policy against more than four clearly it, common law and therefore a recognizing discrimination to age apply deter- with an cause of action would be inconsistent implied legislative addition, In of Hospital mination regarding scope liability. proper would result of notice that discrimination reasonably age claim lack may As it of grant immunity. nor is of beneficiary any statutory liability, worker, for whom the Stevenson to the class persons over-40 belongs for discrimination remedy employ- intended to afford age failed, reason, of those remedies for whatever to avail herself ment. That she employ- does not mean either that the policy against age did not in conduct to her or that the Hospital engage ment does not apply it because her the FEHA when terminated her employment prohibited FEHA’s age Because the age. policy against common law she assert her to both Stevenson and Hospital, applies remedies without her administrative exhausting termination claim wrongful 65, 88.) under the FEHA. (Rojo, supra, relies upon when a plaintiff Stated more analytically precisely, law of action wrongful common cause statutory prohibition support subject common law claim policy, termination in violation the statutory prohibi- the nature and scope limitations affecting tion, procedural is not to statutory but the common law claim subject statu- nonexclusive scope only availability limitations affecting stated, law tort a common rule thus Under the remedies. tory in violation claim for termination exemption to the FEHA’s subject the FEHA is

discrimination articulated in is a limitation affecting exemption because small-scale employers put, Simply prohibition. nature scope five cannot violate the fewer than persons regularly employing employers discrimination in because that employment against age FEHA’s prohibition too, the a worker must be “over to them. So apply does not prohibition the FEHA’s rely upon the time of the discrimination alleged of 40” at in because the over-40 limi- discrimination employment policy against age Code, 12941, (a)) subd. is a limitation (Gov. statutory the tation of of the statutory prohibition. nature affecting scope contrast, tort claim for termination viola- wrongful a common law By in the FEHA articulated tion of the against age an admin- FEHA’s that exhaust requirement employee is not to the subject relief because that requirement istrative remedies before seeking judicial but the avail- does affect nature and of the scope only not prohibition An post-termination of the remedies. scope statutory employee’s ability remedies has no on whether the bearing failure to exhaust administrative through statutory prohi- termination violated public policy expressed discrimination, and thus the post-termination bition against age employee’s not assertion of a tort nonstatutory administrative default does preclude . claim for termination violation public policy. dissent, new

In Justice this court her Brown urges adopt entirely tort in violation of wrongful discharge additional requirement have no wrongfully discharged judicial public policy—that employee under The dissent the FEHA or under similar scheme. any remedy this additional is argues necessary prevent employees requirement who discrimination from bypass- are victims prohibited employment (or statutes) the FEHA similar the administrative under ing procedures because, asserts, their dissent forcing discharged employees subject claims to the FEHA’s administrative is essential to further the process of the FEHA balance between the and maintain purposes proper interests employers employees.

As is evident from this the dissent’s real quarrel its summary position, case, with our but with this court’s decision in this holding previous 65, and, Rojo, Legisla- even more fundamentally, Cal.3d ture itself. court, examination

In after careful Rojo, supra, FEHA a its administrative scheme for processing as whole and particular held the FEHA complaints, unanimously does law claims for common preempt FEHA’s and that a need not exhaust the discharged employee wrongfully bringing administrative remedies before non-FEHA wrongful the dissent refuses against employer. accept, scarcely action of Rojo. these acknowledges, holdings the 52 Cal.3d on distinguish Rojo, supra, dissent

Although attempts discrimination, that claim of sex not discrimi- the it involved a ground 923), the does not (dis. at the of dissent’s opn., p. logic argument nation post, If and statu- distinction these lines. common law parallel permit any along discrimination or do on race sex for account of tory employment remedies FEHA, then parallel not intent the legislative underlying undermine the will do so either. remedies for discrimination older workers not if, asserts, the the FEHA’s “carefully dissent Conversely, repeatedly be if an is permit- crafted scheme” will claimant “upset” ted for without first a FEHA adminis- wrongful discharge submitting to sue (dis. 916),8 then it be if a post, trative claim must opn., equally “upset” race or sex claimant does not initiate the FEHA’s administra- Thus, tive of the dissent’s this would acceptance argument require process. assertion of court to overrule Cal.3d the Rojo, supra, preclude discrimi- common law tort claim for from any injuries arising employment FEHA. nation under the prohibited

In its cites what seem be an of dissent support position, number of from other But an examination decisions impressive jurisdictions. no they of these reveals that little or assistance provide decisions us in case. In common law recognize narrow issue before declining for statutory policy, many actions violations nondiscrimination “new right—exclusive courts these decisions relied same authoring upon that this court has found to be already rule construction remedy” 65, 79-81.) In other to the FEHA. 52 Cal.3d (Rojo, supra, inapplicable decisions, discharge the courts restricted the tort scope wrongful In court has rejected. violation of that this public policy ways previously law under none of these did a court find that antidiscrimination decisions that, (a) like of Government consideration contained subdivision language all for the benefit of employees Code section expressly preserved or claims. alternative common law preexisting the FEHA’s Rojo, When we held in of, to, other be addition in lieu remedies are to recognizing wrong in its a common law claim is assertion 8The dissent any “effectively in the forecloses articulated in violation of conciliation, rectify ‘conference, dispute persuasion’ to resolve possibility [or] opn., post, 12931).” (Dis. The FEHA’s administrative (§ discriminatory practice employment discrimination remain available to process and administrative remedies them; between the to choose forced who elects to invoke such claimant claimant law claim and FEHA’s administrative remedies. common discrimination, so because we we did law remedies state through this result had intended required the concluded that dates from That language Code section 12993. of Government language 1980, the we that in enacting in and may presume the FEHA’s enactment Tameny, then-recent decision in of our the was aware Legislature 167, violation of in the tort Cal.3d recognizing Thus, 121, 132, we 8 Cal.4th fn. (See Jennings, supra, of public policy. it understood that the public policies that the Legislature may presume FEHA, dis- prohibiting employment in the the including policy articulated workers, this older could claims under trigger newly crimination against so, the Legislature it has the to do Although surely power tort. recognized then, since, at acted to make the FEHA remedies did nor has it time any not of for older workers exclusive Tameny discrimination against employment the the assertion it is that determines whether Ultimately, Legislature claims. claims for is inconsistent non-FEHA employment FEHA. disruptive 65,

Since this court’s in 52 Cal.3d Rojo, supra, decision construing (a) all subdivision of Government Code section 12993 as preex- preserving discrimination, or alternative for the Legislature remedies isting has amended that times without the we provision altering language three 1993, 25; 1277, 15; 1992, 913, (Stats. construed. ch. Stats. ch. Stats. § § construction, 912, 8.) ch. Under rule of an established virtue of its action in Legislature presumed, by amending previously construed, statute without construed that was have changing portion (In and ratified the re Malinda S. prior construction. accepted judicial Therefore, 1244].) Cal.3d 795 P.2d Government recent amendments of Code section have removed this court that doubt that that as one makes interpreted provision correctly not, the FEHA’s and as the discrimination remedies cumulative dissent would exclusive. prefer,

In addition to assaulting this court’s decision Rojo, supra, based, and the the dissent on which that decision was legislative judgments asserts the state’s that discrimination should support policy against tortious that no benefit claim because wrongful discharge policy provides but is interest for the benefit of large, legislation public merely special older workers. In of its does not discharged assertion that support public benefit when from older employers are prevented discriminating against workers, the dissent creates discharging job observes that older workers workers, for openings younger that the number is finite even jobs and expanding economy, older workers to sue their discharged allowing employers age discrimination a financial burden businesses. imposes (Dis. opn., post, 925-926.) too, Legislature, only the dissent engages second-guessing

Here benefits the generally, policy against public as to whether discrimination is a and whether the sound but also state to On both these points, this adopt. beneficial in Government Code section clearly declaring, has Legislature spoken. By “that the discrimi- practice denying employment opportunity on enumerated age, in the terms employment” grounds, including nating the interest of affects “substantially adversely employees, employers, added), (italics has made finding general” with, of, our benefit is consistent supportive general And, by including age similar determination in case. discrimination, has deter- Legislature forms among prohibited or on employers younger that whatever burdens this policy imposes mined older is the benefits of a labor market in which workers outweighed by abilities, on age. workers are their not their judged a claim for older workers discharge Our decision tortious recognizing no on California because of new burdens imposes employers discharged civil the victims of such discrimination may bring under the FEHA because obtaining right-to-sue for and after punitive damages actions compensatory Court (See Home Inc. Systems, Superior letter. Commodore 912].) to a P.2d As compared Cal.3d Cal.Rptr. [185 action, common law claim FEHA cause of statutory conduct, nor it expand not does scope prohibited does broaden discrimination; it merely for of available remedies prohibited array remedies which legal theory employees may pursue another provides to them under to those available respects already all relevant comparable Thus, of civil litigation liability the FEHA. to whatever extent the threat “an older em- serve from discourage firing damages may employers 925), this (dis. at p. post, who no longer performs satisfactorily” opn., ployee our here. is no way amplified by holding exists already threat Likewise, it or any expanded penalties because does not afford different FEHA, our under the those available already conduct discriminatory beyond achieved” has balance Legislature decision does not “careful upset any (dis. 919) business environment” (dis. at or create a “hostile post, opn., 917). opn., post, bottom, of any government the wisdom

At the dissent appears question But older workers. against to inhibit employment Bank v. (WellsFargo the wisdom of statutes.” function is to judge “[o]ur 811 P.2d Court Superior Indeed, policies those 1025].) only when this court established could been in a constitutional or provision that had articulated claim, was “that one reason this court gave a wrongful discharge support all, area, care and due into this if at with great should venture courts branch, ‘lest mistake their they to the judgment legislative deference deserves at law.’ which recognition own predilections 1083, 1095.) Because no issue has been (Gantt, 1 Cal.4th [Citation.]” when it enacted exceeded its constitutional raised that the powers FEHA, older workers when it included among discrimination, FEHA’s when it made the forms prohibited exclusive, cumulative rather than or remedies for discrimination benefits the when it declared that the policy against age and to recognize implement, our function here is large, simply considered judgments. not to question, Legislature’s

III. Conclusion alone Chronological age variable Aging highly complex process. is not a reliable measure of individual’s vitality ability, many individuals remain robust and well the normal retirement productive past Nevertheless, have some discriminated age. employers against highly qual- ified older workers because of their either them or hiring solely age, them with by younger replacing persons.

To this has afforded older remedy injustice, Legislature displaced workers remedies under the FEHA. In so has statutory doing, Legislature declared that the FEHA’s remedies shall be cumulative to all other expressly state law as remedies. Those remedies include common law tort claims such a claim for in violation of wrongful discharge policy. public

We conclude that Stevenson has claim for tortious successfully pleaded discrim- in the FEHA’s wrongful discharge grounded prohibiting provisions ination older workers because of their The against age. policy against age discrimination in to over-40 workers and to employ- employment, applied statute, workers, ers who more than 4 is delineated regularly employ Furthermore, benefits the and is substantial and fundamental. public large, time of Stevenson’s was well established at the public discharge. policy Because the that the FEHA’s statutory has declared expressly exclusive, are of a common law remedies cumulative rather than assertion tort claim for in violation of the policy against age wrongful discharge public in FEHA with the legislative discrimination as articulated is consistent intent the FEHA. underlying reversed, matter is Court of and the judgment Appeal of mandate command-

remanded to that court with directions to issue a writ court to vacate its order it sustains the Hospital’s insofar as ing superior violation wrongful discharge to Stevenson’s claim

demurrer and to enter a new public policy against as to that claim. the demurrer overruling order Mosk, J., Chin, J., J., J., concurred. C. Werdegar, George, court, that the BAXTER, but believe I concurin judgment J. a fundamental ground on the narrow can be supported result of the on the basis of exists independent policy against ex Act. Because Housing independent Fair Employment ques exists the court need address broader of that pression Moreover, that the the conclusion of majority I do not with agree tion. Code, et (FEHA) (Gov. seq.) Act Housing Fair Employment § that will common basis for finding support itself be the That in violation of public policy. termination law tort action v. Rojo Kliger recognition view is our inconsistent 65, 79, 801 P.2d that the was 81-82 373] the structure of the law remedies outside intended to create .new common Code, FEHA, (Gov. common law remedies. does all preserve preexisting but (a).) subd. § established,

A fundamental firmly the FEHA existed in has on the basis age independent 1961, ch. (Stats. since Insurance Code section 2070 Unemployment 1623, 1, 3517), Jennings noted in Marralle however. As we 1074], section 2070 876 P.2d Cal.Rptr.2d Cal.4th 130-131 [32 “It Code states: is the public policy Insurance Unemployment to its extent. This should be used fullest manpower State of California that human seek- further conclusion that beings statement of the policy compels thereof, and without fairly should be judged or retention ing employment, significant disqualify and unsound rules that rigid operate resort to Accord- from and useful employment. of the population gainful portions of labor organizations agencies, use ingly, by employers, employment on the rules which bar or terminate and unreasonable arbitrary of this State.” of the public policy offend ground Former and enforced.1 continuously recognized This has been policy discrimina- made age-based Code Unemployment 2072 of the of the section case, compliance Legislature employers from with excluded presently the small 1As is “employer.” persons the definition by excluding employers of less than six from policy this Code, 2071.) against employer for lie a small common law action would (Unemp. No Ins. § section Insurance Code expressed Unemployment in violation 135-136.) Maralle, (See Jennings supra, v. Cal.4th at therefore. an unlawful When that section was in employment practice.2 tion repealed discrimination was made an unlawful age-based employment practice 1144, 1, (Stats. of the Labor former section 1420.1 Code ch. by 2211), now it has been into FEHA Government Code incorporated section 12941. While the discrimination statutory proscription age-based FEHA, now subsumed did intend thereby The common law Court of supplant any existing remedy. reading Appeal, Marralle, statements Cal.4th at more Jennings page warrants, than their context concluded that broadly expressed Code section 2070 not be the for a law Unemployment basis common tort action for age against any discrimination That ad- employer. opinion dressed only age-based small by employers Legis- whom the lature has from excluded the reach consistently public policy against discrimination, however.

Since older workers other does employers vio- late a fundamental state which was established firmly the time I was plaintiff discharged, agree defendant’s demurrer to cause of action termination in plaintiff’s violation of a public policy against age should have been overruled.

I therefore concur in the judgment.

BROWN, I dissent. J. law, tradition of

Reflecting the common commends Llewellyn “wisdom and value of into new moving development canny cau- tion” and for the respect difficulties that can “grow out letting concept’s corollaries take over seeming without reference the sense of the situation.” Tradition, (Llewellyn, Common Law Deciding Appeals 2Former section Unemployment provided: Insurance Code “It is unlawful for employer dismiss, reduce, employ; refuse to hire to discharge, or or suspend, or demote any individual ages between the of 40 64 solely ground on the of age, except in cases compels where law or provides for such This action. section shall not be construed rejection make unlawful the or of employment termination where the applicant individual or employee held, failed requirements to meet bona fide job for the or position sought or to bona affect fide pension programs; preclude retirement or nor physical shall this section such and applicants medical examinations employees of and as employer may an make or have to job made position determine fitness for the or or sought held. staff, "Promotions existing hiring within the promotion experience or on basis the of and training, rehiring seniority prior employer, hiring basis of and service with the or under recruiting program schools, an established high colleges, from universities trade and schools not, themselves, shall in and of a chapter. constitute violation of this “This right section employer, employment agency, shall limit of an or labor union to or select refer the better qualified person among from all applicants job. for a The burden proving a persons violation of section be upon person claiming this shall that the (Stats. 1961, 3518.) violation occurred.” ch. § of first whether to extend the impression: This an issue presents case in violation of public policy law tort ap common Co. 27 Cal.3d 167 v. Atlantic Tameny proved Richfield (Tameny) 610 P.2d A.L.R.4th to circumstances 314] articulated a scheme that statutory in which the public policy provides both to redress the and to aggrieved employee remedies comprehensive As underlying policy. Llewellyn’s observations imply, vindicate must after considered delib in the common law proceed only development Mosk, The Law and (See to and effect. also Common eration as its purpose Pol’y J.L. & Pub. Decision-making Process Harv. the Judicial alert to law flourish if remain of the common can the courts vitality [“The it reason and and have the to when opportunity change their obligation Code, follow, demand.”]; I 3510.) Civ. For the reasons that so cf. equity § nor employ neither the rationale of Tameny public policy against believe Housing Fair Act ment discrimination articulated and Employment Code, of this cause of (FEHA) (Gov. 12900 et warrants seq.)1 enlargement action. carefully complementary

FEHA is a statute that balances comprehensive to victims of remedies not make whole judicial only administrative but also these unlawful business discrimination in workplace, penalize law their common tort Permitting recurrence. prevent parallel practices declaration courts in the untenable position using legislative claim puts remedies that ulti- touchstone duplicative public policy justify addition, to frustrate intent. In only legislative recognizing can serve mately public action for violation of wrongful discharge a FEHA-based cause of the rationale of this the at-will exception contradicts statutory remedy When the has provided adequate doctrine. of both the and the courts public, the interests fully protect employee nor need to intercede. The is not without have neither reason employee be the statute. through Finally, and the can vindicated redress doctrine, to the I would Tameny without adding qualification deny even she has failed to establish the policy against relief because plaintiff or is “fundamental “inures to the benefit the public” and substantial.”

I. available to remedies claim Tameny duplicates currently A FEHA-based goals while defeating of victims its broad for achieving designed circumventing legislatively procedures of all safeguard right opportunity “to protect (§ in the be workplace. free from persons” the Government Code. unspecified references are to 1Further

913 occasions, FEHA is on numerous explained compre As this court has will eliminate “to effective remedies which provide scheme hensive character based on practices” protected . . discriminatory . end, creates two statute (§ To this istics including age. “[t]he and Housing Fair bodies: Department Employment [of administrative conciliate, and seek whose function is to (the investigate, Department)], 12901, 12930), for claimed discrimination and (§§ Employ redress [Fair Commission)], Commission [(the ment and which performs adju Housing] 12903, 12935). and functions rulemaking (§§ An dicatory aggrieved person 12960), (§ file a with the which must complaint Department promptly 12963). (§ If deems a claim valid it seeks to investigate Department conference, conciliation, resolve the matter—in confidence—by persua 12963.7.) that fails or (§ sion. If seems inappropriate, Department may 12965, (a), to be heard (§§ issue accusation the Commission. subd. 12969.)” (Peralta Dist. v. Fair & Community College Employment Housing 40, 114, (1990) (Peralta).) Com. 52 Cal.3d 45 801 Cal.Rptr. P.2d [276 357] If the fails to act within after Department days filing 150 a complaint action, or earlier determines to take administrative it issues right-to-sue 12965, letter authorizing private (b).) lawsuit. subd. (§ right-to-sue is a 65, letter (1990) action. 52 prerequisite judicial (Rojo Cal.3d Kliger 130, 801 P.2d Cal.Rptr. (Rojo).) [276 373] primary purpose systems “[A] alternative of redress for employment discrimination is to efficient permit administrative prompt disposition— without cost to the victim—of claims that are amenable to conciliation or to remedies, corrective do equitable thus not warrant a full-scale judicial [citation], with its attendant proceeding while expense delay reserving judicial with its system, attendant constitutional and statutory safeguards, those statutory claims that seek significant nonquantifiable recom- monetary or that the pense complainant to join wishes with nonstatutory causes of (Peralta, 55, action.” omitted; supra, Cal.3d at fn. Rojo, Cal.3d at pp. 83-84.) structure of compliance

“[T]he in the encourages cooperation (Commodore administrative process.” Systems, Home v. Superior Inc. Court 211, (1982) 32 Cal.3d (Commodore).) 649 P.2d [185 Cal.Rptr. 912] also It affords both Department and the Commission an initial opportu nity utilize their respective eliminate “a expertise unlawful particular and to practice its recurrence.” Inc. prevent (Dyna-Med, v. Fair Employment & Housing Com. 43 Cal.3d Cal.Rptr. [241 1323], 743 P.2d italics added see State Personnel Bd. v. (Dyna-Med); Fair Employment & Housing Com. (State 703 P.2d Bd.).) Personnel As complainant, 354] to the individual

914 whole the context of is “make the aggrieved employee to the goal 1387); and 43 Cal.3d at the Commission p. (Dyna-Med, supra, employment” reinstatement, and as well as limited backpay hiring, promotion, order may 12970, (a).) “on subd. More (§ generally, finding damages. compensatory the will order such corrective Commission harassment [or discrimination] others, the that the including measures as will benefit both and complainant manner of and desist the the report compliance, cease and practice, employer addition, In the Commission will action as take other remedial appropriate. the to a compliance direct thereafter conduct Department conduct] [or 12973.) the order. Hence obeying (§ to see the fully review that employer of effec serves the purpose providing the administrative procedure its will eliminate the and discriminatory practice prevent tive remedies that recurrence, victim, as the immediate but to all employees, just 53, 12920.)” (Peralta, 52 at fns. (§ supra, p. and Cal.3d future. present Bd., 429, 432; omitted; see Cal.3d at supra, pp. Rojo, State Personnel 39 83; Shaner 116 N.J. Bancorp. 52 Cal.3d at cf. v. p. supra, Horizon 1130, (Shaner) similar [discussing 436-438 A.2d 1131-1132] [561 Law remedial scheme of New Jersey’s Against comprehensive aspects In 8 Cal.4th 121 Discrimination].) Marralle Jennings the court (Jennings), recognized signif 876 P.2d Cal.Rptr.2d 1074] of goals of broader effectuating icance this remediation authority so much to redress each discrete FEHA: The “aim was not Legislature’s of as to eliminate the egregious instance individual discrimination discriminatory practices economically powerful organizations.” continued (Id. 134.) at p. may seek complainant an alternative to the administrative process,

As event, In relief letter. right-to-sue issuance judicial upon “[t]he remedies, and punitive damages, same along compensatory [unlimited] action under be awarded court in a enforcement private by superior Bd., 434; (State at Commo FEHA . . .” Personnel Cal.3d supra, p. . 39 dore, statute a right supra, Although by private at p. decision not action is the Department’s prosecute, contingent counsel (b)), subd. “the Director (§ general lapse days that right-to-sue the court] the Department previously] advise[d [have rule, is able rarely letters are because exception, Department conciliation, issue accusations within complete investigations, pursue issued, reason, letter is even in For a right-to-sue 150-day period. he states that wants writing who advance 150 days, any person (Commodore, supra, his file a civil action.” withdraw complaint 8; Bd., at Cal.3d p. State supra, fn. see Personnel Cal.3d 54; Peralta, 43 Cal.3d at 11; Dyna-Med, supra, Cal.3d fn. 916, 923; 1985) 1401-1402; F.2d (9th Cir. King Carter v. Smith Food Frankfurt, and A Gelb & Fair Act: Employment Housing see also California’s (1983) 34 L.J. Employment State Discrimination Remedy Hastings Viable 1055, 1066, 87.) fn. court in The director has nonetheless also informed the the that “if a past suit, to a bring letter order civil requests right-to-sue complainant is to issue the after the has current letter Department policy only Department make the settlement offers and settlement is not invited respondent 84, Cal.3d at 11 from the of achieved.” fn. director (Rojo, supra, p. [letter 9, the to the Chief Justice of the Court dated June Department Supreme 1989]; Commodore, 32 Cal.3d 218.) at Such is consistent supra, policy p. FEHA[, “the of with structure compliance encourages coopera which] in the tion administrative . . . That deter of ‘hold strategies process. helps Further, out’ for court cases. ing damages inappropriate possibility an action that lead to enhance the might punitive damages may willingness violations to offer fair settlements persons charged during 218, (Commodore, conciliation at omitted.) fn. process.” supra, p. Administrative also allow a procedures compliant employer dis rectify and criminatory practices without thus costly protracted litigation, benefiting all employees. sum,

In has the to seek complainant ultimately redress under option streamlined, informal, more and cost-effective administrative procedures With its broad pursue litigation. remedial and oversight authority, FEHA, Commission can realize “vital fully interests embodied in policy i.e., the resolution of and elimination unlawful disputes by (Yurick conciliation. practices Superior v. Court [Citations.]” 1116, 1123 665]; Shaner, Cal.App.3d cf. 116 N.J. at supra, p. [257 time, A.2d 1132].) At the p. same the statutory recog [561 scheme that circumstances, nizes be judicial relief under appropriate particular as long has the Department opportunity “determinen has claimant satisfied all FEHA’s and is entitled to requirements bring a civil action against the offending organization.” (Carter individual or v. Food King, Smith F.2d at supra, 765 p. declared,

The Legislature has “It is the expressly existing State of California . . . that be established which procedures allegations filed, and be prohibited harassment discrimination may and effi timely ciently investigated, fairly adjudicated, and that agencies employers be required establish affirmative which include programs prompt remedial internal procedures so worksites will be main monitoring tained free from prohibited harassment and discrimination .... To further intent, 1984, 1754, 1, the Legislature enacts ch. (Stats. [FEHA].” §

6403-6404; (a) ch. subd. [“primary public also Stats. see and elimination of unlawful the prevention [FEHA] states, Thus, in other “the remedies as with statutes FEHA-type practices”].) discrimination form of the anti-dis part to eliminate prohibited provided (Makovi 316 Md. Sherwin-Williams Co. crimination policy.” Shaner, (Makovi); 116 N.J. at A.2d 188] [561 . statute . . substantive “encompasses A.2d [antidiscrimination 1140] to broader that are further uniquely designed and procedures standards Moreover, Jennings as the rationale of and legislative goals”].) constitutional “the clear, courts must consider to fulfill FEHA’s makes . . . (Jennings, reflected in various .” provisions intent legislative [its] 124; Brown Court Superior see also v. p. 8 Cal.4th supra, 724, 477, 691 P.2d choice venue “impor 486 [wide [208 272] filing prosecuting barrier to removing tant consideration” Makovi, actions]; A.2d at p. [judicial 316 Md. at 623 supra, p. [561 189] based on whether to tort of abusive discharge determination recognize from the legislative remedy statute “does not isolate the antidiscrimination vacuum”].) and does not consider the latter in a goal into a this complaint Tameny upsets carefully a FEHA claim Transmuting seek the same judicial scheme to by enabling employee crafted statutory normally but the administrative review entirely prerequisite redress bypass Such forecloses likelihood bypass effectively such action. conciliation, “conference, or to resolve the persuasion” rectify dispute [or] 12931), ame (§ Legislature’s discriminatory practice compromising to the who employee, simply liorative with no perceptible advantage purpose Shaner, (See to tort damages. limited gains duplicative judicial remedy 1141]; v. Wyman- A.2d at see also Green N.J. [561 808, 551, 813]; Co. 422 Mass. Clay Gordon N.E.2d [664 917, 86, 920]; (1989) 522 Pa. A.2d Advanced Computer Applications 910, Communications, 919.) (3d 1982) Inc. Cir. F.2d v. Warner Bruffett or theoretical of a claim is an abstract Determining Tameny the viability reference to the court looks no further than a statutory which process by it gives it from the context that very “public policy,” thereby disassociating substance. unwar- with legislative prerogatives particularly interference

Judicial where, here, develop continues to Legislature ranted and needs of employees, employers, scheme response changing Dyna-Med of this For in the wake court’s decisions example, public. Peralta, Commission to seek “actual FEHA was amended to authorize the $50,000 admin- (in for “emotional combination injury” up damages” $150,000 fines) 51.7. for violations of Civil Code section up istrative 12970, 1992, 911, 1, (4); (a)(3) subd. & see Stats. ch. (§ At the same §§ time, the Commission to “an Legislature requires prove aggrieved person actual and has set forth the has sustained criteria for injury” making 12970, (b).) (§ determination. subd. the Commission Although may (d)), (§ award subd. it assess administrative punitive damages may limits “to fines vindicate the specified policies up purposes fraud, when it finds the “has been or part” respondent guilty oppression, malice”; outlines the statute also such a making the “relevant evidence” (c) for emotional (§ (d).) subds. & If the accusation finding. prays fines, to “transfer administrative elect injury damages respondent to a court in lieu of a . . . .” subd. (§ proceedings hearing amendments, (c)(1).) As of these that the directed part “how Department report many respondents elected to transfer the proceed- to court” and that the ings Commission determine “the adequacy amount available to compensate victims discrimination and administrative fines” under section permitted (a)(3). (Stats. subdivision ch. 911, 9.) By monitoring the process Legislature can determine whether § of these impact with changes comports the decision to override Dyna- Med and Peralta.

Even this limited example highlights balance of interests the necessary Legislature strives to maintain in the collective executing undergirding FEHA: must be employees from protected discrimination and for violations of their recompensed rights; must unlawful employers rectify and maintain practices burden; without undue compliance economic must remain confident that antidiscrimination are enforced policies without in a resulting (Cf. hostile business environment.2 Gantt v. Sentry 1083, Insurance 874, 1 Cal.4th 824 P.2d Cal.Rptr.2d [4 680] 2As another example Legislature’s of the balancing concern for the respective interests FEHA, implicated in incorporate provisions 1992 amendments of the Americans with (ADA) (42 Disabilities Act of 1990 seq.) purpose “strengthen- U.S.C. 12101 et for the § [ing] California law in areas [including where it is weaker than the reasonable [ADA] employees accommodation of with mental and to retain California disabilities] law when it provides protection (Stats. 1992, more for individuals with disabilities than the ch. [ADA].” 1.) The applies only employers ADA to employees, with 25 or more § which was the initial threshold number in FEHA respect with to individuals with mental disabilities. (§ (0(1).) subd. application Broader to employers having all 15 or more employees phased (§ (0(1); was within 18 (d)(2).) months. subd. see subd. time, At the same Legislature directing agencies enacted section 12940.3 various to costs, study undertake “a survey including litigation and reasonable accommodation expenses impacts and other employers on California employees, resulting of 15 or more from compliance with study . . .” The part “provide [the . is in a ADA] basis for a recommen- dation and the concerning Governor hardships imposed upon whether the outweigh businesses persons the benefits to requirements with disabilities when the of [the are extended to employers employees” ADA] California of 5 “by amending . . . people to include with mental protected designated [FEHA] disabilities as a class.” The or statutory provisions claims on constitutional

(Gantt) Tameny [Basing employees the interests among employers, balance proper strikes “the suited achieve The uniquely legislative process public.”].) interests. When remedies accommodation of competing present appropriate the courts should act to redress adequate employee complaints, are deemed restraint. particular in Bush Lucas Court’s United States Supreme analysis case, In that 76 L.Ed.2d is instructive. U.S. 367 S.Ct. 648] [103 “to damages remedy asked the court authorize new nonstatutory petitioner violated their rights whose First Amendment are by for federal employees 2406].) arose at Because the violation (Id. p. at S.Ct. superiors.” p. [103 relationship comprehensive procedural in an “governed by remedies,” the court deter- meaningful high substantive provisions giving scheme ... that regulatory mined “it would be inappropriate supplement (Ibid.) had not Acknowledging Congress judicial remedy.” with a new it recognized its the court also the exercise of remedial authority, prohibited “ ” in deciding into considerations’ ‘range take account must 2410].) (Id. at at Of create new S.Ct. remedy. whether to [103 over the the court noted dramatic increase years particular significance, and other federal civil servants termination in the afforded protection (Id. their association free speech rights. pp. retaliation exercising 2413-2416].) had culminated development This 381-386 S.Ct. by as an which process well administrative job protection substantial (Id. at adverse actions their superiors. can employees challenge aggrieved 2415-2417].) 386-388 S.Ct. pp. pp. [103 of as follows: the relevance these circumstances

The court summarized remedies and the of the of civil service development “Given the history available, it is clear that the of the remedies currently nature comprehensive issue is different from the remedial today we confront question quite typical is not what remedy a court. confronted common-law by question It is unredressed. for a that would otherwise go court should provide wrong that been constructed step step, elaborate remedial has by whether an system considerations, should aug- be with attention to conflicting policy careful for the constitutional remedy of a new judicial mented creation by should informed by . The be judgment violation at issue. . . and the respec- structure understanding existing regulatory thorough of another remedy result from the addition tive costs and benefits that would being consequences of requirements agencies to “consider whether the additional are employers of 5 to impose significant hardship subject requirements will to the additional 12940.3.) significant hardship, “legislation study If no employees.” (§ 14 . discloses . . employees 5 and are covered require employers with between 14 introduced to should be (Ibid.) study, Legislature intends Pending the requirements of ADA].” [the (Ibid.) altering existing provisions. “voluntary compliance” without

919 Lucas, (Bush of First violations Amendment employees’ rights.” 2416-2417].) 462 U.S. at 388 S.Ct. at After p. identifying various [103 concluded, the court advantages disadvantages, is in a far “Congress better than a court to evaluate the of a new position impact species between federal on the litigation the civil service. employees efficiency Not has considerable only Congress developed familiarity balancing ánd the governmental but it also efficiency rights employees, inform itself through such as are factfinding procedures hearings that not available (Id. 2417].) to the courts.” S.Ct. at [103 view, In my court’s intercession will likely the careful upset balance has achieved after more than 35 years FEHA. fine-tuning (Cf. Moradi-Shalal (1988) v. Fireman’s Fund Companies Ins. 46 Cal.3d 301-303 758 P.2d Cal.Rptr. (Moradi-Shalal); [250 Hedlund v. 58] Court Superior P.2d [194 1063].) Court, A.L.R.4th Like the United States we Supreme should be a common wary law interposing remedy substantially displaces scheme to eliminate forged discrimination in the workplace— little, when the especially court-created claim affords if any, additional benefit to the victim and its benefit to the presumed entirely speculative.

II.

I would deny plaintiff’s Tameny claim for an additional reason related to the concern for its on FEHA. disruptive impact time,

For the first this court squarely confronts a case in which a common law action for wrongful in violation of derives solely from a comprehensive remedial statute intended to vindicate the specifically On predicate public careful policy. such an action is scrutiny, inconsistent with the antecedent, rationale of and its Tameny seminal Petermann v. International Brotherhood Teamsters Cal.App.2d P.2d (Petermann). This conclusion 25] finds in the decisions of support numerous sister-state jurisdictions and federal courts that have determined an additional wrongful cause of action is discharge an unwarranted excep- tion to the at-will doctrine. of the Makovi, reasoning Maryland Court in Supreme 316 Md. supra, 179], case, A.2d is particularly [561 In that the discerning. plaintiff a common

brought law claim for abusive in violation discharge of the public sex discrimination policy against in the Fair promulgated Maryland Employ ment (See 49B, Practices Law. Md. Ann. Code art. (1986).) 14-18 Like §§ FEHA, the statute does not other causes of action for preempt discrimination. (Ma kovi, supra, Md. at pp. 181-182].) 608-609 A.2d at pp. [561 for its for a abusive originally granting remedy reasons recapitulating

After not the concluded that the antidiscrimination statute would court discharge, “ ‘ Court was on what it to be sustain such relief: focusing perceived “[This] directly a in the law—a some discharge expressly precluded by void some other statute but which nevertheless contravened general specific an of If there were alternative already adequate statement public policy. existence, the that the Court interest legitimate employee remedy that of would indeed have attained identified as being deserving recognition common be created law would unneces and the remedy recognition, newly new of This the notion that the cause to assure its sary suggests protection. remedies, at least not existing statutory action was not intended to supplant for remedy crafted and effective provide adequate those specifically ’ 183].) (Id. at the unlawful act.” 611-612 A.2d pp. [561 [Citation.]” also in the common law The Makovi court considered similar development noted, of “The theme general running through other jurisdictions ‘first of absence of round’ decisions other courts is the discharge wrongful discharged other in contravention remedy employee so that of a remediless The tort was created the prospect employee policy. that other laws further. policies sought would undercut goals courts issue us has held a faced before majority Consequently, that tort not lie for a motivated some discharge allegedly by does a which is statute where that statute confers prohibited 183].) (Makovi, Md. 612-613 A.2d at remedy.” [561 a Court of Hawaii same reasoning rejecting The Supreme applied law, on that state’s antidiscrimination Hawaii claim Tameny-type predicated Hotels, “A claim v. Americana Revised Statutes section 378. Parnar [Parnar 625], Tameny] Hawaii’s equivalent Inc. Hawaii 370 P.2d “narrow class of cases” where the wrongful was ‘intended to to a apply seen to effectuate the at stake. necessary action is discharge If, however, which evidence regulatory provisions for the provision themselves provide remedy wrongful discharge, If the are unnecessary. further under the remedy public policy exception has on the legislature discharge policies considered the effect are the courts of further remedy goes which they promoting, provision by necessary what itself was to effectuate legislature thought beyond of an making employee . . .By public policy.’ [Citations.] [¶ [citation], unlawful characteristic or ‘because protected [a status]’ practice, discriminatory employment remedial scheme providing has the means for enforcing public policy itself legislature provided words, his In other to vindicate Parnar claim. through seeks [plaintiff] decided, done what a even was had legislature already before Parnar

921 do, is, Parnar claim is at-will designed modify employment (Ross Hotel Co. doctrine to further an v. important public policy.” Stouffer 454, 1037, (Hawai’i) Ltd. (1994) 1047].) 76 Hawaii 464 P.2d [879 conclusions, In their these courts and others have under reaching many stood that claims are on that would Tameny-type premised closing gap otherwise leave vulnerable to that could flout it with public policy employers Torts, 874A, (See their Rest.2d impunity through com. hapless employees. scenario, h.) “Confronted with this without a courts ‘right remedy’ recog nized a common law action order to fill the legislative gap. [Citation.] available, When a is there is no and the statutory remedy gap justification (Crews v. Memorex is judicial (D.Mass. absent. Corp. creativity [Citation.]” 27, 1984) sum, 588 In “the whole rationale F.Supp. undergirding is the vindication public policy exception or the protection certain strong If these policies are community. policies goals other preserved by remedies, (Wehr then the is Burroughs served.” v. sufficiently 1052, Corp. (E.D.Pa. 1977) 1055; 438 Melley Gillette Corp. v. F.Supp. 511, (1985) 1227, 1228], 19 511-512 Mass.App.Ct. (1986) N.E.2d affd. [475 Mass. 397 1004 N.E.2d [rejecting [491 claim based on Tameny-type 252] discrimination]; Shaner, statutory prohibition against age supra, 116 N.J. at 453-454 1140-1141].)3 A.2d at pp. [561 3Accord, (Alaska 1345, 1988) 1353, 16; Walt v. State 751 P.2d Corbin v. Sinclair footnote Marketing, 1984) 265, (Colo.Ct.App. Inc. (“public policy 684 P.2d 266 exception ... is not available when provides employee [the] statute at issue wrongful discharge [the] Atkins v. remedy”); Bridgeport Hydraulic (1985) 643, 1223, Conn.App. Co. 5 648 A.2d [501 (declining permit Tameny-type statute); 1226] claim based on Nolting (D.C. Capital Group, 1993) 1387, 1389; v. National Inc. 621 A.2d Ross s. Stouffer Ltd., (Hawai’i) Hotel supra, Co. page 1047]; 76 Hawaii page 464 Mein v. P.2d at [879 Corp. (1984) 617, 154, Masonite Ill.App.3d 1137, 124 1139], 619 Ill.Dec. 464 N.E.2d [80 (1985) 501, affirmed 109 Ill.2d 1 Ill.Dec. (rejecting [92 485 N.E.2d Tameny-type claim 312] based statutory prohibition discrimination; against age comprehensive law “contains a series of stated”); remedies for violations of the v. Evans Grzyb 1985) therein (Ky. 700 399, S.W.2d (rejecting 401 Tameny-type claim based on discrimination statute: “Where the statute both declares the specifies unlawful act and remedy the civil available to aggrieved party, aggrieved party remedy provided limited to the by the statute. Makovi, [Citations.]”); page 190]; 316 Md. at 626 v. page A.2d at [561 Dudewicz Norris-Schmid, 68, (1993) 645, 650]; Inc. 443 Mich. v. Regent N.W.2d [503 Sands Valgardson (1989) 436, 898, 105 Nev. (“Legislature P.2d [777 has 900] addressed the gravity violating Nevada’s policy against age by defining the extent remedy parties injured by discrimination.”); available to such Howard v. Dorr Woolen (1980) 295, Co. 120 N.H. A.2d (rejecting Tameny-type [414 claim 1274] based on statutory prohibition against discrimination); Provens v. Stark Cty. Bd. Mental Ret. (1992) 64 Ohio.St.3d (same; 255-261 N.E.2d [594 no need for courts to 961-965] void”); “fill Mfg. (Okla. 1996) 1011, 1015 List v. (no Anchor Paint Co. 910 P.2d common law action for violation statutory prohibition against age discrimination); Walsh v. Con Freightways, solidated Inc. 278 Or. 1208-1209]; Cross P.2d [563 Eastlund Or.App. P.2d (declining permit Tameny-type 1214] claim

922 violation of wrongful discharge public law claims common

Limiting has not in which the afforded comprehensive cases to policy Petermann. reasoning Tameny the fully relief comports cases, or faced Hobson’s choice termination In both employee his felonious . . commission contingent upon employment. “continued (Petermann, his . . . act the instance of employer other at illegal] [or 189; 174.) The Cal.3d at Tameny, supra, p. at 27 Cal.App.2d p. 174 supra, threat of criminal acknowledged prosecution court “[t]he Petermann would, cases, suborning committing be a sufficient deterrent in many [to However, to .... in order both the and employee employer perjury] upon civil declared perjury, effectuate the state’s policy against more fully law, too, discharge unlimited right his deny generally must employer for the dismissal the employ- . . . when reason employee [at-will] (Petermann, at 174 supra, p. ee’s to commit Cal.App.2d refusal perjury.” 189.) as the a fundamental such

When an employer jeopardizes “by be limited both right justice, administration (Petermann, 174 supra, of public policy.” statute” and considerations “by 654, 188; (1988) Data 47 Cal.3d at v. Interactive Foley Corp. p. Cal.App.2d 211, Cal.3d at P.2d 27 (Foley); Tameny, supra, 668 765 [254 373] 172.) Tameny, Petermann and no statute protected employee In p. welfare; to contravene the public from the attempts employer’s therefore, had to (Tameny, courts invoke considerations. perforce 1090; 177; Gantt, 1 at Foley, at see also Cal.4th supra, p. supra, p. that an 670.) at to this rationale is corollary Cal.3d supra, implicit 47 interests at stake to the task of defending existing remedy adequate Moradi-Shalal, 46 (Cf. supra, the need further protection. obviates also underscores the deference priorities Cal.3d at This legislative statute); Clay Computer Applications, v. employment discrimination Advanced based on County (same); Epps at v. Clarendon supra, pages A.2d 919-921] 522 Pa. at 90-95 [559 386, 424, 387]; Hosp. 145 Bourque v. Center 426 S.E.2d Wausau 304 S.C. [405 433, on 589, (rejecting Tameny-type claim based Wis.2d N.W.2d 436-437] 597-599 277, 1985) statute); (Wyo. P.2d Safeway Allen Stores Inc. 699 employment discrimination Co., 413, 1996) (1st (applying (same); 76 F.3d 428-429 v. F.W. Morse & Inc. Cir. 284 Smith based declining Tameny-type claim permit Maine law in 1990) (same, statute); (10th applying Kansas v. Davis Cir. 895 F.2d 709-710 Polson Const., (D.Vt. 1992) on other law); vacated F.Supp. Inc. v. Earth Fellows Parts, law); Factory Inc. (same, Prewitt v. Motor grounds F.Supp. applying Vermont law); Northwest (W.D.Mo. 1990) Missouri Steinbach v. (applying 565-566 F.Supp. (D.Minn. 1989) law (applying Minnesota F.Supp. Co. ern Nat. Ins. Life statutory prohibition Tameny-type claim for violation declining permit Makovi, A.2d discrimination); page 617 [561 cases cited in 316 Md. see also federal page 186]. Gantt, or statutory provision makes a constitutional which of reasoning 1095.) (Gantt, 1 Cal.4th at p. supra, of policy. source public requisite scheme for noted, “FEHA establishes a comprehensive As previously of As a matter public discrimination. [Citations.] combating employment and right to and safeguard FEHA the need protect recognizes policy, free from discrim- hold of to seek and all persons opportunity Court, 485.) 37 Cal.3d at (Brown supra, p. v. Superior ination. [Citation.]” end, judicial of administrative for a broad array To that it provides indeed, reflects; it vindicate the policies remedies intended adequate (Stats. ch. its remedies are integral accomplishing goals. fill, As the no 6403.) gap. is no void for this court legislative There p. it, state would not “be of this court would see Petermann a FEHA-based claim. Tameny if were denied seriously impaired” employees 189; cf. 8 Cal.4th Jennings, supra, at (Petermann, p. Cal.App.2d 136.) at p. such a to these claims does not raise a question limitation

Applying The court’s task is to define the FEHA or exclusivity. parameters preemption common law tort action for in violation wrongful discharge of a effective not to FEHA scheme “to qua statutory provide policy, interpret which will eliminate . . . remedies discriminatory practices employ- [in 12920; is thus the cf. The focus (§ Rojo, supra, proper ment].” law, common not the contours of the evolving scope predicate tethered claims to Tameny Just as this court has in decisions legislation. past in a statute or the fundamental and well-established public grounded policies now Constitution and intended to inure to the benefit of the it should public, refine that there be no further its criteria require competing comprehen- sive the interests of the remedial scheme already protecting aggrieved This is a restraint statutory employee society. question judicial construction.

This restriction also does not contravene the construction of FEHA artic- There, ulated in 52 Cal.3d 65. the court held that exhaustion of Rojo, supra, administrative remedies was a under the litigation prerequisite only statute, which causes action and remedies that are “does not displace (Id. omitted.) fn. In addition to otherwise available to at plaintiffs.” claims, FEHA asserted their had vio- Rojo their the plaintiffs employer discrimination; because this lated the constitutional sex prohibition FEHA, court allowed them to cause of action was independent (Id. remedies. under without administrative Tameny exhausting proceed however, circumstance, 89-91.) In is not one of the present question have but of precluded displacement duplication. from whether this claims but that is a different inquiry FEHA-based Tameny a common law on the same basis. Plaintiff’s remedy should afford court (id. 81); the ambit of claim is not “outside protection” Tameny as its source it derivative of wholly dependent statute or (See 8 Cal.4th at other supra, Jennings, [“no policy. discrimination”]; Assn. v. Law Students bars Gay constitutional provision (1979) Tel. & Tel. Co. 490 Pacific Act) “in (Fair Practices antecedent FEPA Employment P.2d 592] [FEHA’s ex doctrine”].) As we common law no sense preexisting declaratory new rights to create section “reflects an intent Jennings, in plained intact, not rights scheme while leaving existing within the FEHA statutory 8 Cal.4th at p. (Jennings, supra, new common law rights.” intent to create be no more 135.) claim can Tameny FEHA-based Rojo notwithstanding, than its predicate. expansive when, as and would only limitation is narrow apply

This proposed quite to fill here, are available. When necessary remedies statutory adequate would still be Tameny to effectuate claims public policy, legislative gaps their rationale. The intensity majority’s available consistent with indeed curious for definition toward such a modest is proposal animosity law. The inexorable about the of the common development there is nothing violation of public policy; court created the tort of wrongful discharge further delimit its demarcated its the court scope; court has the past (Mosk, The CommonLaw as “reason and so demand.” equity application Process, 11 Harv. J.L. & Pub. Pol’y Decision-making supra, the Judicial 36.) statutory to cases which exception In expanding public policy scheme, cite the majority remedial comprehensive incorporates predicate Rather, need, ironically redress. they articulate no injustice lacking no unmet claiming—to paraphrase of court-made law by seek to justify expansion failure do The Legislature’s made it.” Wilson—“the [Legislature] [us] Flip this court to create duplicative make FEHA exclusive does compel but of intent or acquiescence, This is not an issue legislative remedies. evolution consistent with statutory policy. common law for the same opportunity A of courts faced with precisely clear majority the temptation law have declined prudently of the common expansion when “the same statute claims Tameny-type have refused to recognize . the structure pursuing . . also provides enunciates (Grzyb of its terms.” contravention [wrongful discharge] claim for 401; ante, is refusal Evans, Although see fn. S.W.2d at p. intent, consistently recog- also courts have legislative sometimes based on not extend to does exception rationale of the public policy nized that the common law no for the there simply inequity such cases because in the context of these decisions arose many Significantly, mitigate.4 discrimination, and several spe- prohibiting schemes cases articulate a discrimination.5 These of claims concerned cifically law invoke a common excep- when to determining framework principled doctrine; lies not in their their persuasiveness to the at-will tion logic. the force of their but in numbers

III. statutory remedy because the Tameny her claim Even without rejecting issue, I find plaintiff and vindicates public policy adequately protects of its to meet at least two criteria: has failed of the at in FEHA “inures to benefit public articulated

age 47 at it is “fundamental.” Cal.3d (Foley, supra, p. and that large” benefit,” conclude “there can be With to the “public majority respect “most is satisfied in because California part little doubt” element now become thus an residents either are or will over-40 employees, creating discrimination in broad class of victims potential extraordinarily ante, omitted.) But at fn. Granted. (Maj. “public” employment.” opn., p. is not a matter of support Tameny demographics; claim policy adequate numbers, not, could virtue of their simply by even a majority populace benefit. establish the societal requisite (§ 12920.)

Nor statement suffice. invoking general does FEHA’s policy discussed, As scheme a broader previously statutory implicates array 267; 4See, Inc., e.g., Marketing, supra, page Corbin v. 684 P.2d at Atkins v. Sinclair Co., 1226]; Bridgeport Hydraulic supra, Conn.App. page 5 648 A.2d at Ross v. [501 at Makovi, 1047]; Ltd., (Hawai’i) supra, page 76 464 at [879 Hotel Co. Hawaii at P.2d Stouffer 183-188]; Shaner, supra, supra, pages pages 316 A.2d at 116 Md. at 612-621 N.J. [561 1140-1141]; Ret., Cty. supra, pages pp. 453-454 A.2d at Provens v. Stark Bd. Mental [561 Co., 961-962; supra, pages Mfg. Anchor 594 N.E.2d at List v. Paint 910 P.2d 1013- Inc., 1014; Freightways, supra, pages Or. at 351-352 P.2d at Walsh v. Consolidated 278 [563 Inc., 284; Lucas, 1208-1209]; pp. Safeway supra, page v. P.2d at Bush Allen Stores 699 v. Communication, 2416-2417]; supra, 462 page U.S. at 388 S.Ct at v. Warner [103 Bruffett Inc., law); supra, page (applying Pennsylvania Factory F.2d at Prewitt v. Motor 692 919 Parts, Inc., 565-566; supra, Corp., supra, F.Supp. pages Crews v. Memorex 588 747 F.Supp. at page 29. Corp., supra, Ill.App.3d 124 464 N.E.2d [80 5See Mein v. Masonite 619 Ill.Dec. (statute judicial as limited provided “comprehensive series of remedies” as well 1139] 1227]; review); Melley supra, Corp., Mass.App.Ct. v. Gillette 19 511 N.E.2d Sands [475 Co., 898]; Regent supra, Valgardson, v. 436 v. Dorr Woolen [777 105 Nev. P.2d Howard Shaner, 1273]; 1130]; supra, v. supra, 116 N.J. 433 A.2d List N.H. 295 A.2d [414 [561 Co., Co., 1011; supra, Mfg. P.2d Nat. Ins. Anchor Paint Steinbach Northwestern Life law); Hardy (applying Minnesota Bennett v. 113 Wn.2d F.Supp. cf. (Tameny-type action claim of discrimination because P.2d allowed for 1258] provided right remedy). but statute no an considerations. older who no Retaining employee longer performs be for fear can to the work satisfactorily costly litigation disruptive In environment as a its own discriminatory discharge. respect, hiring advancement of workers serves the interest as younger as the fully older, retention of more workers. More to the even experienced point, the number of available in the expanding economy positions workplace Thus, remains finite. older workers and although retaining promoting ones are not exclusive the inherent younger mutually goals, competition market creates an inevitable Perfect will tension. accommodation job however, elusive; remain FEHA is a reasonable effort to undoubtedly protect both the individual’s interest discrimination-free and the broader interest in while vindicating maintaining healthy business climate in California. The scheme also reflects a legisla- tive these preference achieving policies initiating process redress with conciliation and mediation rather than hit-and-miss litigation. context,

In whether a in this our gauging particular policy “public” discussion in offers considerable Foley he guidance. plaintiff alleged was terminated because he to his that his wrongfully reported employer (See immediate was of embezzlement at another supervisor suspected job. Code, 1102.5.) Lab. The court his claim because “the rejected Tameny duty of an to disclose information to his serves the employee employer only 671.) interest.” 47 Cal.3d at “The private (Foley, supra, absence p. [latter’s] of a interest in this case is when we distinctly ‘public’ apparent consider that if an were that the has employer employee expressly agree employee to, not, no and should inform of adverse obligation employer any information the learns about a fellow employee employee’s background, in the state’s would render such an void. nothing agreement By contrast, in the cases a in violation of previous asserting [, Petermann], Tameny and interest at stake was policy e.g., one which could not be circumvented of invariably properly by agreement 670, 12; Gantt, (Id. fn. see also 1 Cal.4th at parties.” p. p. 1090.)

An to retire at some agreement requiring employee designated age thus, interest; 40 would contravene over societal policy not meet of a (Cf. discrimination does this element claim. age Tameny (1984) Cory Rittenband v. 159 410 Cal.App.3d Cal.Rptr. [uphold [205 576] of benefit reduction of ing constitutionality aged-based provisions Judges’ Law]; 939, Retirement Vance v. 440 U.S. 93 S.Ct. Bradley [99 L.Ed.2d of retirement of for constitutionality compulsory [upholding 171] 60]; service officers at Massachusetts Bd. Retirement v. eign age Murgia of (1976) 427 U.S. 307 S.Ct. L.Ed.2d constitu [upholding 520] [96 50].) officers at Such age retirement of tionality compulsory police for a of an contract in effect be the equivalent would agreement age. to the according employee’s term calculated specified seek, obtain has recognized “opportunity The the fact of’ as a “civil because without discrimination and hold in FEHA is 12921) interest (§ suggests employee’s further right” rule, are those civil general rights guaranteed As personal. substantially (4th ed. (See Dict. Black’s Law constitution statute. the individual 1988) 2; (3d p. ed. 1968) col. Webster’s New World Dict. college p. transcends, the but also employee’s The interest incorporates, public’s state economy extends to an concern for a overarching vigorous because it well. against age

I conclusion the disagree majority’s also Tameny discrimination is fundamental the sense establish required (See v. 105 Nev. at 439-440 Valgardson, supra, claim. Sands Regent [777 900].) certain considerations” P.2d at Because “have identified they ante, 895), the relevant analysis majority presumably (maj. opn., failure to find this element satisfied their notwithstanding acknowledged based articulate a test determination. Discrimination making not, however, It does mark its victim like race and sex discrimination. Inn, (Sail’er with a Inc. inferiority citizenship” second class “stigma 1, 19 485 P.2d 46 A.L.R.3d Kirby (1971) Cal.3d (See 351]); it is the unavoidable universal leveler: time. consequence Schuck, Age Civil Law: The Discrimination Act Graying Rights (Schuck).) Yale L.J. 33-34 The United States drew the distinction in Mas Court Supreme pointedly 307, case sachusetts Bd. Retirement v. 427 U.S. Murgia, supra, challeng a retirement of of Massachusetts statute ing constitutionality mandating at “While in this Nation has aged officers 50. the treatment of police age discrimination, unlike, not been free of such those who wholly say, persons, have been basis or have origin, discriminated on the of race national against not of treatment’ or been sub experienced ‘history purposeful unequal on of disabilities the basis characteristics jected unique stereotyped 2567]; (427 indicative of their abilities.” U.S. 313 S.Ct. at truly at p. [96 Schmidt v. Court 389 769 Superior Cal.Rptr. [256 classifications]; P.2d strict [declining apply scrutiny aged-based 932] see also v. 40 Koire Metro Car Wash Cal.3d 37-38 Cal.Rptr. [219 irreversible; 195].) 707 P.2d is definition but aging process by age sex, i.e.; “a is not an “immutable” characteristic race and comparable of birth.” status into which the class members are locked accident by Inn, of (Sail’er Inc. v. “While the each age 5 Cal.3d at Kirby, supra, birth, of at time is the certain result of the date our of us any particular is to which life a natural through stages simply process progression result, age one us is As no member of an labors group every subject. encountered other member of any every society under disability by In cannot be race ... or in time. regard, equated some point age (Kubik (1981) Scripps College sex.” Cal.App.3d 539].) are reflects that some distinctions recognition age-based itself Code, 75075-75079; 12941, 12942; Civ. (See see also cf. acceptable. §§ §§ 51.2, in “to meet the phys- discrimination age housing 51.3 [authorizing §§ Furthermore, citizens”].) needs senior the legislative ical and social resulted in and elsewhere has response age Schuck, Yale L.J. at (See from changing demographics. primarily as 40-41.) The California Constitution sex discrimination prohibited pp. Const., XX, 18); race and several other (Cal. as art. former early § Const., I, 8), (Cal. were in 1974 art. but remains age characteristics added § hand, the list. other a substantial number absent from On the conspicuously cited against age statutes the majority protecting ante, 896-897) more Tech- recently.6 were enacted much (maj. opn., rather than fundamental social nological workplace policies changes In Training also of this enacting have influenced some legislation. for Older Act of 1983 Ins. (Unemp. Californians Employment Programs Code, noted that the decline 16000 et seq.), Legislature specifically § to 64 was aged part civilian force labor participation persons have made individuals’ skills job attributable to which technologies, “[n]ew Thus, sex, (Id., 16001.) unlike race and the various prohibitions obsolete.” character, but discrimination arise not from fundamental age any needs from the realization more and more of the such population protection.7 older, solicitous our as reality, becoming In boomers baby grow society as we once were fascinated beauty. by youth

IV. or is not to condone Tameny To a FEHA-based claim deny plaintiff other because of countenance (1982), 6See, (1984); sections e.g., 51.2 Education Code Civil Code section (1976); (1988), (1991), sections (1982), (1988), Government Code 262.1 262.2 (1990); (1987), Unemployment (1977); 1365.5 Safety Code sections 1317.3 Health (1983). seq. Insurance Code section 16000 et public policy, the a fundamental support plaintiff 7In has identified of their conclusion ante, (Maj. opn., jurisdictions. FEHA in other majority statutes similar to numerous also cite noted, 897.) Tameny-type predicated on rejected claims p. at least seven courts have at As (Ante, p. employment. fn. statutory prohibitions against age that the has contrary, it recognizes basis. On invidious and provided com- underlying defended the vigorously The rectify question violations. only to redress and remedies prehensive court in displacing other considerations justify us is whether before efforts. these legislative of common law tort action for development peripatetic with a until now proceeded has violation Gantt, 121; (See 8 Cal.4th Jennings, supra, caution. judicial

measure 1083; 654.) This restraint 47 Cal.3d supra, see also Foley, 1 Cal.4th supra, the public both an protecting employees has reflected appreciation “[tjhe tort remedies understanding expansion interest and stability has enormous consequences context potentially Gantt, 699; see community.” (Foley, supra, business 1095.) The majority’s departs dramatically 1 Cal.4th at holding from Tameny untethers claims path, substantially from this circumspect I the words of William their Before such a would heed taking step, rationale. where there is more sail than ballast.”8 Penn: “Have care therefore I would affirm the the Court of judgment Appeal.

8Some Fruits Solitude.

Case Details

Case Name: Stevenson v. Superior Court

Court Name: California Supreme Court

Date Published: Aug 27, 1997

Citation: 941 P.2d 1157

Docket Number: S052588

Court Abbreviation: Cal.