Rojo v. Kliger

Page 130

276 Cal.Rptr. 130

52 Cal.3d 65, 801 P.2d 373, 54 Fair Empl.Prac.Cas. (BNA) 1146,

55 Empl. Prac. Dec. P 40,480, 59 USLW 2463,

6 IER Cases 530

Emma ROJO et al., Plaintiffs and Appellants, v. Erwin H. KLIGER et al., Defendants and Respondents.

No. S010142.

Supreme Court of California In Bank.

Dec. 20, 1990.

Patten, Faith & Sandford and Lorraine Grindstaff, for plaintiffs and appellants.

Joseph Posner, David C. Anton, Margaret E. Roeckl, Bird, Marella, Boxer, Wolpert & Matz, Robert J. Rose, Mark T. Drooks, Julius LeVonne Chambers, Patrick O. Patterson, Bill Lann Lee, Theodore M. Shaw, Christine A. Littleton, Jon W. Davidson, John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston and Louis Verdugo, Jr., Deputy Attys. Gen., as amici curiae on behalf of plaintiffs and appellants.

Knapp, Petersen & Clarke, Andre E. Jardini, Alan C. Arnall, Thomas H. Ott, Bryan H. Baumeister and David J. Cohen, for defendants and respondents.

Paul, Hastings, Janofsky & Walker, Paul Grossman, Lawrence A. Michaels, Jennifer A. Glazer, Proskauer, Rose Getz & Mendelsohn, Jeffrey A. Berman and Steven G. Drapkin, as amici curiae on behalf of defendants and respondents.

PANELLI, Associate Justice.

We granted review in this case to determine whether the Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) ¹ (hereafter FEHA or act) provides the exclusive remedy for injuries relating to sex discrimination in employment; whether an employee must exhaust the administrative remedies under the FEHA as a prerequisite to pursuing a civil action; and whether sex discrimination in employment may give rise to a claim of wrongful discharge in contravention of public policy. We conclude that the FEHA does not supplant other state laws, including claims under the common law, relating to employment discrimination; that an employee need not exhaust the administrative process under the act before resort to judicial relief for nonstatutory causes of action; and that sex discrimination in employment may support a claim of tortious discharge in contravention of public policy.

I. FACTS

Plaintiffs Emma Rojo and Teresa Maloney were employed as assistants by defendants Erwin H. Kliger, a practicing physician, and Erwin H. Kliger, M.D., a medical corporation (hereafter referred to collectively as defendant). In August 1986, plaintiffs filed a complaint against defendant for violations of the FEHA and intentional infliction of emotional distress. Plaintiffs alleged that during the term of their employment they had been subjected by defendant to sexually harassing remarks and demands for sexual favors which had ultimately forced them to leave their employment. ²

Defendant answered, denied the allegations and asserted various affirmative defenses. He then moved for summary judgment on the grounds that the FEHA constituted plaintiffs' exclusive remedy and that plaintiffs had failed to exhaust their administrative remedies under the act. Plaintiffs opposed the motion, arguing that the FEHA does not supplant other state law remedies, including common law claims, relating to discrimination in employment, and that pursuit of the administrative remedy is not a condition precedent to judicial relief. They also requested leave to amend their complaint to assert causes of action for assault and battery and tortious discharge in contravention of public policy, among other causes of action. The trial court granted defendant's motion and entered summary judgment in his favor.

The Court of Appeal reversed. It held the FEHA does not preempt or preclude other state law claims relating to employment discrimination. It further held a victim of sex discrimination is not required to pursue the FEHA administrative remedy except with respect to claims under the act. Accordingly, the court concluded plaintiffs could proceed with their suit and seek recovery under any applicable theory independent of the FEHA, but could not state a cause of action under section 12940 because they did not exhaust their administrative remedies under the act. Finally, the court ruled that plaintiffs' allegations of sexual harassment and discrimination would support a claim of tortious discharge in contravention of public policy.

II. DISCUSSION

A. The FEHA

As our resolution of the important questions raised in this case turns in large part on the language and purposes of the FEHA, we briefly review the salient features of that act.

The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab.Code, § 1410 et seq.) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq.) to form the FEHA. (Stats.1980, ch. 992, § 4, p. 3140 et seq.) The law establishes that freedom from job discrimination on specified grounds, including sex, is a civil right. (§ 12921.) It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940). (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213, 185 Cal.Rptr. 270, 649 P.2d 912.) The statute creates two administrative bodies: the Department of Fair Employment and Housing (Department) (§ 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination (§ 12930), and the Fair Employment and Housing Commission (Commission) (§ 12903), which performs adjudicatory and rulemaking functions (§ 12935). An aggrieved person may file a complaint with the Department (§ 12960), which must promptly investigate (§ 12963). If the Department deems a claim valid, it seeks to resolve the matter--in confidence--by conference, conciliation, and persuasion. (§ 12963.7.) If that fails or seems inappropriate, the Department may issue an accusation to be heard by the Commission. (§§ 12965, subd. (a), 12969.) The Department acts as prosecutor on the accusation and argues the complainant's case before the Commission. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383-1384, 241 Cal.Rptr. 67, 743 P.2d 1323.)

If no accusation is issued within 150 days after the filing of a complaint, or if the Department earlier determines not to prosecute the case and the matter is not otherwise resolved, the Department must give the complainant a "right to sue" letter. Only then may that person bring a civil suit "under this part." ³ (§ 12965, subd. (b); Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1384, 241 Cal.Rptr. 67, 743 P.2d 1323; Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 213-214, 185 Cal.Rptr. 270, 649 P.2d 912.)

The broad goal of the FEHA is set forth at section 12920, which states in pertinent part: "It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex or age."

B. FEHA Preclusion of Common Law Claims

The first question we address is whether the FEHA provides the exclusive remedy for injuries arising from discrimination in employment. ⁴ In addressing this issue we begin, as always, with the language of the statute itself. "[A] court is to construe a statute so as to effectuate the purpose of the law." (White v. County of Sacramento (1982) 31 Cal.3d 676, 681, 183 Cal.Rptr. 520, 646 P.2d 191 [internal quotation marks omitted].) However, "[w]hen statutory language is ... clear and unambiguous there is no need for construction, and courts should not indulge in it." (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)

The meaning of the FEHA is clear in this regard. The act expressly disclaims any intent to repeal other state laws relating to employment discrimination. Subdivision (a) of section 12993 provides: "The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age." (Italics added.)

It is settled that the "law" of this state includes the common law as well as the Constitution and the codes. (Code Civ.Proc., §§ 1895, 1899; Victory Oil Co. v. Hancock Oil Co. (1954) 125 Cal.App.2d 222, 229, 270 P.2d 604.) " 'The code establishes the law of this state respecting the subjects to which it relates'; but this ... does not mean that there is no law with respect to such subjects except that embodied in the code.... [W]here the code is silent, the common law governs." (Estate of Apple (1885) 66 Cal. 432, 434, 6 P. 7; accord, Estate of Elizalde (1920) 182 Cal. 427, 432-433, 188 P. 560; Cole v. Rush (1955) 45 Cal.2d 345, 356, 289 P.2d 450; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 815, 119 Cal.Rptr. 858, 532 P.2d 1226.)

It is equally settled that the common law of this state provides any number of remedial theories to compensate for injuries "relating to discrimination" (§ 12993, subd. (a) ). Brown v. Superior Court (1984) 37 Cal.3d 477, 208 Cal.Rptr. 724, 691 P.2d 272 is illustrative. There the plaintiff filed a civil suit alleging a statutory cause of action for discharge on grounds of race and common law causes of action for emotional distress and wrongful discharge. Each of the three claims was based on the same factual allegations regarding liability and damages. "[E]mployment discrimination cases," we observed, "by their very nature, involve several causes of action arising from the same set of facts. A responsible attorney handling an employment discrimination case must plead a variety of statutory, tort and...