Friedman v. Southern Cal. Permanente Med.

125 Cal.Rptr.2d 663

102 Cal.App.4th 39

Jerold Daniel FRIEDMAN, Plaintiff and Apellant, v. SOUTHERN CALIFORNIA PERMNENTE MEDICAL GROUP et al., Defendants and Respondents.

No. B150017.

Court of Appeal, Second District, Division 5.

September 13, 2002.

Certified for Partial Publication.^*

As Modified September 24, 2002.

Rehearing Denied October 7, 2002.

Review Denied Nov. 26, 2002.^**

Myer Law Firm and Scott D. Myer, Los Angeles, for Plaintiff and Appellant.

Sefarth Shaw, F. Scott Page, Los Angeles, and Debbie L. Freedman, for Defendants and Respondents.

I TURNER, P.J.

I. INTRODUCTION

Jerold Daniel Friedman (plaintiff) appeals from a judgment entered after the general demurrers of Southern California Permanente Medical Group, Kaiser Foundation Hospitals, and Kaiser Foundation Health Plan, Inc. (defendants) were sustained without leave to amend. In the published portion of this opinion, we resolve the question of whether veganism is a "religious creed" within the meaning of the California Fair Employment and Housing Act (FEHA), Government Code¹ section 12940. We conclude veganism is not a "religious creed" within the meaning of the FEHA. Accordingly, we affirm the judgment.

II. DISCUSSION

A. Standard of Review

Our Supreme Court has set forth the standard of review we must apply on appeal from a judgment following an order sustaining a demurrer without leave to amend as follows: "On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed `if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal. Rptr.2d 92, 831 P.2d 317; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal.Rptr .2d 709, 45 P.3d 1171; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

B. The Complaint's Allegations of Religious Creed Discrimination

The trial court sustained defendants' demurrers without leave to amend to plaintiffs first through third causes of action of his original complaint for religious creed discrimination and retaliation in violation of the FEHA. The trial court concluded veganism was not a religious creed within the meaning of the FEHA. In his original complaint, plaintiff alleged as follows. He is a strict vegan. Further, he alleged: "As a strict Vegan, [plaintiff] fervently believes that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals, even for food, clothing and the testing of product safety for humans, and that such use is a violation of natural law and the personal religious tenets on which [plaintiff] bases his foundational creeds. He lives each aspect of his life in accordance with this system of spiritual beliefs. As a Vegan, and his beliefs [sic], [plaintiff] cannot eat meat, dairy, eggs, honey or any other food which contains ingredients derived from animals. Additionally, [plaintiff] cannot wear leather, silk or any other material which comes from animals, and cannot use any products such as household cleansers, soap or toothpaste which have been tested for human safety on animals or derive any of their ingredients from animals. This belief system[] guides the way that he lives his life. [Plaintiffs] beliefs are spiritual in nature and set a course for his entire way of life; he would disregard elementary self-interest in preference to transgressing these tenets. [Plaintiff] holds these beliefs with the strength of traditional religious views, and has lived in accordance with his beliefs for over nine (9) years. As an example of the religious conviction that [plaintiff] holds in his Vegan beliefs, [plaintiff] has even been arrested for civil disobedience actions at animal rights demonstrations. This Vegan belief system guides the way that [plaintiff] lives his life. These are sincere and meaningful beliefs which occupy a place in [plaintiffs] life parallel to that filled by God in traditionally religious individuals adhering to the Christian, Jewish or Muslim Faiths."

Plaintiff was hired by a temporary agency to work for defendants as a computer contractor. He worked at a pharmaceutical warehouse owned by defendants. He had no contact with any of defendants' patients. Plaintiff alleged it was not anticipated that he ever would have contact with any of defendants' patients. Defendants offered plaintiff a permanent position with Kaiser. A written contract was prepared. Subsequently, however, plaintiff was advised "that to finish the process of becoming an employee he would need [a] mumps vaccine." Plaintiff could not be vaccinated with the mumps vaccine because it is grown in chicken embryos. To be vaccinated, it was alleged, "would violate [plaintiffs] system of beliefs and would be considered immoral by [him]." When plaintiff refused to be vaccinated with the mumps vaccine, defendants withdrew the employment offer.

C. The FEHA and Differing Definitions of Religion

1. The FEHA

The elements of a religious creed discrimination claim are that: the plaintiff had a bona fide religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370, 58 Cal.Rptr.2d 747.) With respect to the first element, possession of a bona fide religious belief, section 12940, subdivision (a) states in part: "It shall be an unlawful employment practice ... [¶] (a) For an employer, because of the ... religious creed ... of any person, to refuse to hire or employ the person ... or to bar or to discharge the person from employment ... or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Further, section 12940, subdivision (I), states in part: "It shall be an unlawful employment practice ... [¶] ... [¶] (l) For an employer ... to refuse to hire or employ a person ... because of a conflict between the person's religious belief or observance and any employment requirement, unless the employer ... demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance ..., but is unable to reasonably accommodate the religious belief or observance without undue hardship...."

Definition of the terms "religious belief or observance" and "religious creed" are provided in a statute and in a regulation. Section 12940, subdivision (l) defines religious belief as follows: "Religious belief or observance, as used in [section 12940], includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance." Further description of the scope of the religious belief protection in the FEHA is found in section 12926, subdivision (o), which states: "As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context: [¶] ... [¶] (o) `Religious creed,' `religion,' `religious observance,' `religious belief,' and `creed' include all aspects of religious belief, observance, and practice." The administrative agency charged with enforcing the FEHA, the Fair Employment and Housing Commission, has also enacted a regulation defining "religious creed." California Code of Regulations, title 2, section 7293.1 (regulation 7293.1), defines "religious creed" as follows: "`Religious creed' includes any traditionally recognized religion as well as beliefs, observations, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions." Consistent with regulation 7293.1, plaintiff argues that his commitment to a vegan lifestyle occupies a place in his life parallel to that of traditionally recognized religions. Regulation 7293.1, by its express terms, reflects the notion that religious creed extends beyond traditionally recognized religions to encompass beliefs, observations, or practices occupying a parallel place of importance "to that of traditionally recognized religions" in an individual's life. As will be discussed later, that concept of religion originates from two United States Supreme Court cases involving conscientious objection to military service—United States v. Seeger (1965) 380 U.S. 163, 164-188, 85 S.Ct. 850, 13 L.Ed.2d 733, and Welsh v. United States (1970) 398 U.S. 333, 335-344, 90 S.Ct. 1792, 26 L.Ed.2d 308.

It is well settled that the interpretation of a statute by an agency charged with its administration is entitled to great weight. {Woods v. Superior Court (1981) 28 Cal.3d 668, 679, 170 Cal. Rptr. 484, 620 P.2d 1032; Morris v. Williams (1967) 67 Cal.2d 733, 748, 63 Cal.Rptr. 689, 433 P.2d 697.) The administrative interpretation must be consistent with the statute and not in conflict with it. (§ 11342.2; Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 269, 121 Cal.Rptr.2d 203, 47 P.3d 1069; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 82, 78 Cal.Rptr.2d 16, 960 P.2d 1046.) Judicial review is limited to whether the agency reasonably interpreted the legislative mandate and whether the regulation is reasonably necessary...