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Court of Appeal, Second District, Division 6, California.

CITY OF MOORPARK et al., Petitioners, v. SUPERIOR COURT of the County of Ventura, Respondent, Theresa L. DILLON, Real Party in Interest.

No. B093952.

Decided: September 26, 1996

Cheryl J. Kane, City Attorney City of Moorpark;  and Burke, Williams & Sorensen, Harold A. Bridges, Los Angeles, and Heather C. Beatty, Los Angeles, for Petitioners. Armstrong & North, and William J. Armstrong, San Jose, as Amici Curiae on behalf of Petitioners. California Chamber of Commerce, and Dale R. Kuykendall, Modesto, as Amici Curiae on behalf on Petitioners. Maury Mills Jr., Ventura, for Real Party in Interest. Brad Seligman, Berkley, and Elaine Feingold, San Francisco;  Christopher Ho, San Francisco;  and Joseph Posner, Encino, as Amici Curiae on behalf of Real Party in Interest. No appearance for Respondent. Steven C. Owyang, Ann M. Noel, San Francisco, as Amici Curiae.


An employee is injured at work.   After recovering from her injury she is terminated from her employment.   May she sue her employer in court for discrimination because of her physical disability?   Yes.  Under Government Code section 12993, subdivision (a), she is not barred from doing so by the workers' compensation laws.

This matter comes to us by way of a writ petition filed in response to the superior court overruling a demurrer.


For the purpose of review, we look to the facts of the complaint.  (White v. Davis (1975) 13 Cal.3d 757, 765, 120 Cal.Rptr. 94, 533 P.2d 222 [demurrer admits all well-pled factual allegations contained in a complaint].)

Theresa Dillon worked for the City of Moorpark (City) as an administrative secretary.   She suffered a work-related injury to her knee and filed a workers' compensation claim.

After Dillon recovered from knee surgery, her doctor released her to return to work in February of 1994.   Dillon's supervisor, however, told her she had been terminated from employment.

In the middle of March of 1994, Dillon informed City that she would like her job back.   She told City she would be able to do her work if the City made certain accommodations.   Dillon's former supervisor wrote her and said City would not rehire her.

Dillon filed a charge of discrimination with the California Fair Employment and Housing Commission.   She received a letter from the Commission which authorized her to bring a civil lawsuit.  (Gov.Code, § 12965, subd. (a).)  Dillon filed an action against City and two former supervisors alleging discrimination because of her physical disability, wrongful termination, breach of implied-in-fact contract of employment and infliction of emotional distress.

City and the two supervisors filed demurrers to the complaint in which they argued that respondent superior court lacked jurisdiction to hear the matter because the workers' compensation laws are the exclusive remedy for such claims.  (See Lab.Code, §§ 132a, 3600, 3601, 3602.)   To support this contention, they stated that Dillon filed a workers' compensation petition that alleged her employer wrongfully fired her because she was injured on the job and that, therefore, her employer had unlawfully discriminated against her.1

Respondent superior court overruled the demurrers to the causes of action for discrimination and wrongful termination.   It sustained the demurrers to the cause of action for breach of contract without leave to amend.   It sustained, with leave to amend, the demurrers to the cause of action for infliction of emotional distress.   City sought relief by way of a petition for writ of mandate.


 Courts of Appeal do not normally grant hearings on petitions seeking extraordinary relief in matters which arise out of the overruling of a demurrer.  (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274, 258 Cal.Rptr. 66.)   The issues tendered here, however, are of such importance that they merit pre-trial review.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1037, 13 Cal.Rptr.2d 133.)   We have therefore stayed the proceedings pending review of the writ petition and have issued an order to show cause.

 City argues that Dillon's sole remedy under state law is found in Labor Code section 132a.2  City mentions the so-called “compensation bargain” of workers' compensation law which, it argues, governs Dillon's grievance.   Under the compensation bargain, an employer assumes absolute liability for an employee's claims for work-related injury, disability or death, without regard to fault.   In exchange, the employee accepts limits upon the amount of damages.  (E.g., see Shoemaker v. Myers (1990) 52 Cal.3d 1, 15–16, 276 Cal.Rptr. 303, 801 P.2d 1054;  Langridge v. Oakland Unified School Dist. (1994) 25 Cal.App.4th 664, 667, 31 Cal.Rptr.2d 34.)

A. Exclusivity of Workers' Compensation.

Since its inception in 1913, the Workers' Compensation Act has afforded workers of this state a means to swiftly secure compensation for work-related injuries.  (Cal. Const., art. XIV, § 4.) “This system attempts to assure employees of an expeditious remedy both adequate and certain, independent of any fault on the part of the employees or employers.   At the same time, it provides the employer with a liability which is determinable within defined limits.”  (1 Herlick, Cal.Workers' Compensation Law Practice (4th ed. 1990) § 1.1, p. 3.)

Under the Workers' Compensation Act employees may seek compensatory damages for the diverse kinds of injuries which they may suffer at job sites.   (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1061, 40 Cal.Rptr.2d 116, 892 P.2d 150.)  “The Act is to be construed liberally ‘with the purpose of extending [its] benefits for the protection of persons injured in the course of their employment.’  (Lab.Code, § 3202.)”  (Waggener v. County of Los Angeles (1995) 39 Cal.App.4th 1078, 1080, 46 Cal.Rptr.2d 141.)

 The workers' compensation law is generally viewed by the Legislature and by the courts as the exclusive remedy for an employee who suffers injury that arises out of his or her employment.  (Lab.Code, §§ 3600, 3602;  Shoemaker v. Myers, supra, 52 Cal.3d at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054;  Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160, 233 Cal.Rptr. 308, 729 P.2d 743.)   The rule of liberal application is to be applied even where doing so would deny a party the right to seek a remedy at law.  (Arriaga v. County of Alameda, supra, 9 Cal.4th at p. 1065, 40 Cal.Rptr.2d 116, 892 P.2d 150.)

Section 132a of the Labor Code proclaims that it is the “policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.”   Courts have held that this provision of the Labor Code affords an employee a remedy for discrimination arising from, or attributable to, the occurrence of an industrial injury.   (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668, 150 Cal.Rptr. 250, 586 P.2d 564.)

Appellate courts have ruled that an employee's claim of disability discrimination, arising out of a work-related injury, is preempted by the exclusive remedy of workers' compensation law.  (E.g., see Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at p. 666, 31 Cal.Rptr.2d 34;  Angell v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981, 26 Cal.Rptr.2d 541;  Usher v. American Airlines, Inc. (1993) 20 Cal.App.4th 1520, 1526, 25 Cal.Rptr.2d 335.)

In Langridge, plaintiff attempted to sue her employer, a school district, under the Fair Employment Housing Act (FEHA).   She alleged the school district discriminated against her because of her physical disability.   (Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at pp. 666–667, 31 Cal.Rptr.2d 34.)   The Court of Appeal held that, because the employee's claim of discrimination arose out of a work-related injury, her claim was barred by the workers' compensation doctrine of exclusivity.  (Id. at p. 669, 31 Cal.Rptr.2d 34.)

B. Statutory Construction.

At the time of Langridge's claim of discrimination, Government Code section 12993, subdivision (a) read, in pertinent part:  “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 disability, mental disability, medical condition, marital status, sex, or age․”

The Legislature amended the statute in 1993, effective January 1, 1994, to include the following phrase:  “․ unless those provisions provide less protection to the enumerated classes of persons covered under this part.”   (Gov.Code, § 12993, subd. (a), emphasis added.)

Dillon and her amici argue that Langridge no longer applies.   It is their position that, under the 1993 amendment, persons who have become disabled at their place of employment may now seek redress under the FEHA.  (See Cal.Employment Law Reporter (January 1995, Issue No. 1) 1, 3–4.)

In response, City and its amici contend that when the Legislature drafted amendments to Government Code section 12993, it intended to amend only those laws that prohibited discrimination in housing.   They point out that the amendment was necessary to bring California's housing laws into conformance with federal laws.   California could thus continue to receive federal funds with which to enforce housing law violations.   City requests that we look behind the statute to determine the raison d'etre of section 12993.   It argues that legislative history shows the statute does not mean what it says.

 This argument ignores the hoary maxim that the plain language of a statute proscribes its interpretation by the courts.  (Code Civ.Proc., § 1858;  Frankfurter, Some Reflections on the Reading of Statutes (1947) 47 Col.L.Rev. 527 (hereafter Reading of Statutes ).)  “When statutory language is clear and unambiguous, there is no need for construction and [the] courts should not indulge in it.”  (People v. Overstreet (1986) 42 Cal.3d 891, 895–896, 231 Cal.Rptr. 213, 726 P.2d 1288.)

 “To determine what a statute means, ‘we first consult the words themselves, giving them their usual and ordinary meaning.’   [Citation.]”  (Smith v. Fair Employment and Housing Commission (1996) 12 Cal.4th 1143, 1155, 51 Cal.Rptr.2d 700, 913 P.2d 909.)  “ ‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute)․’ ”  (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934, citing Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

 When a statute is unambiguous on its face, we are obliged to take the statute as we find it and not embark upon a quest to determine the legislative intent.  (Morse v. Municipal Court (1974) 13 Cal.3d 149, 155–156, 118 Cal.Rptr. 14, 529 P.2d 46;  Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424, 433–434, 38 Cal.Rptr.2d 521.)

Here, for a refreshing change, is a statute that is clear and intelligible.   Its words do not beg to be understood, nor do they defy comprehension.  (E.g., see People v. Holt (1991) 226 Cal.App.3d 962, 965, 277 Cal.Rptr. 323;  Granberry v. Islay Investments (1984) 161 Cal.App.3d 382, 388, 207 Cal.Rptr. 652.)

The plain meaning of Government Code section 12993 is simply this:  should any provision of state law offer less protection than does the FEHA, then such provision is inoperable and effectively preempted by the FEHA.

 If the Legislature intended to say something other than what it said, then it, not this court, should change the statute.   Courts “are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation.   They are under the constraints imposed by the judicial function in our democratic society.   As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature.   To go beyond it is to usurp a power which our democracy has lodged in its elected legislature.   The great judges have constantly admonished their brethren of the need for discipline in observing the limitations.   A judge must not rewrite a statute, neither to enlarge nor to contract it.   Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration.   He must not read in by way of creation.   He must not read out except to avoid patent nonsense or internal contradiction.  ‘If there is no meaning in it,’ said Alice's King, ‘that saves a world of trouble, you know, as we needn't try to find any.’   Legislative words presumably have meaning and so we must try to find it.  [¶] This duty of restraint, this humility of function as merely the translator of another's command, is a constant theme of our Justices.”   (Reading of Statutes, supra, at pp. 533–534, emphasis added.)

 City claims that because the term “less protection” is reasonably susceptible to various meanings, Government Code section 12993 is ambiguous.   Although one may argue whether a given statute or its provisions offer less protection than does section 12993, the term “less protection” is not ambiguous.

We disagree with the recent decision of this district, Cammack v. GTE California Inc. (1996) 48 Cal.App.4th 207, 55 Cal.Rptr.2d 837.   The Cammack court concluded that a plaintiff's FEHA discrimination claim arising out of a work-related injury was preempted by the California Workers' Compensation Act, and Government Code section 12993 did not change the law.   The court arrived at its conclusion through a painstaking review of legislative committee reports prepared for the adoption of the amendments to section 12993.   (Id. at pp. 226–228, 55 Cal.Rptr.2d 837.)   Because the extensive committee reports and the FEHA did not mention the California Workers' Compensation Act, the court concluded there was no implied repeal of Labor Code section 132a.

The exhaustive review by the Cammack court was unnecessary because section 12993, subdivision (a) is clear on its face.   The statute expressly repeals those provisions of law that offer less protection.   The Legislature need not have enumerated all laws and provisions that offer less protection.   Even if it could have accomplished this onerous task, such an inventory would only indicate the state of pertinent law at the time that Government Code section 12993 was amended in 1993.   The law, like the society if reflects, is not static.  (E.g., see Trop v. Dulles (1956) 356 U.S. 86, 100–101, 78 S.Ct. 590, 597–598, 2 L.Ed.2d 630, 642;  Pac. Tel. & Tel. Co. v. City & County of S.F. (1959) 51 Cal.2d 766, 771, 336 P.2d 514;  Soldano v. O'Daniels (1983) 141 Cal.App.3d 443, 454–455, 190 Cal.Rptr. 310.)

C. Workers' Compensation Provides Less Protection than the FEHA.

 City argues that, in many respects, workers' compensation laws provide more protection to workers than does the FEHA.   From a comparison of the FEHA and workers' compensation laws, we conclude that the FEHA laws offer more protection.

The manifest purpose of the FEHA is “to provide effective remedies which will eliminate ․ discriminatory practices.”  (Gov.Code, § 12920.)   A party seeking to enforce a claim of discrimination before the court, or before the Fair Employment and Housing Commission, has the following remedies:  a cease and desist order, actual damages (including back pay and emotional distress), punitive damages, an order for reasonable accommodations, and attorney's fees.  (Gov.Code, § 12970;  Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 214–215, 185 Cal.Rptr. 270, 649 P.2d 912.)

In a court action, the employee may also pursue other appropriate causes of action sounding in tort and contract.   Civil damages are intended to make whole those persons who have suffered “detriment from the unlawful act or omission of another.”  (Civ.Code, §§ 3281, 3333;  6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1319.)   Civil damages may include amounts for pain and suffering, loss of consortium, and lost earnings.

The FEHA provides remedies to eliminate discriminatory practices (Gov.Code, § 12920), and a civil action seeks to make the victim whole.  (Solari v. Atlas–Universal Service, Inc. (1963) 215 Cal.App.2d 587, 599–600, 30 Cal.Rptr. 407.)   The purpose of workers' compensation law, on the other hand, is that of rehabilitation.  (Ibid.;  see also Consani v. Workers' Comp. Appeals Bd. (1991) 227 Cal.App.3d 12, 23, 277 Cal.Rptr. 619;  Bussear v. Workers' Comp. Appeals Bd. (1986) 181 Cal.App.3d 186, 189, 226 Cal.Rptr. 242.)

In judicial proceedings, parties have the right to a jury trial.  (Cal. Const., art. I, § 16;  Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 282 Cal.Rptr. 349.)   In workers' compensation proceedings, no such option exists.

 Judicial proceedings also offer parties the right to an appeal.   (Code Civ.Proc., § 904.1.)   It is true that an injured worker in a workers' compensation case has the right to review by the Workers' Compensation Appeals Board, but review by a court of law of the board's decision is discretionary.   (U.S. Auto Stores v. Workmen's Comp.App. Bd. (1971) 4 Cal.3d 469, 476–477, 93 Cal.Rptr. 575, 482 P.2d 199.)   In fact, “[S]ummary denial is the fate of most petitions for writ of review.”  (2 Hanna, Cal.Law of Employee Injuries and Workers' Compensation (rev. 2d 1992) § 34.21[1].)

Workers' compensation benefits provide significantly smaller monetary awards than do civil lawsuits.   Under the workers' compensation law, injured employees are provided with the following benefits:  (1) medical treatment (Lab.Code, § 3209.5);  (2) temporary disability (Lab.Code, § 4650);  (3) permanent disability (Lab.Code, § 4650);  and (4) death benefits (Lab.Code, § 4701).

The amount of workers' compensation benefits, other than medical expenses, is determined as a percentage of the worker's earnings.   In this manner, an injured worker receives less than the total of actual lost wages.   Nothing is paid to compensate the worker for pain and suffering.  (Solari v. Atlas–Universal Service, Inc., supra, 215 Cal.App.2d at p. 600, 30 Cal.Rptr. 407, 1 Hanna, Cal.Law of Employee Injuries and Workers' Compensation (rev. 2d ed. 1993) § 4.01[1].)   Nor does this scheme of compensation permit a worker to obtain punitive damages.  (Johns–Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 478, 165 Cal.Rptr. 858, 612 P.2d 948.)

Workers' compensation law allows for reinstatement of the worker as well as for the imposition of monetary and criminal sanctions against “[a]ny employer who discharges, or threatens to discharge, or in any manner discriminates against, any employee because he or she has filed or has made known his or her intention to file a claim for compensation ․”  (Lab.Code, § 132a, subd. (1), emphasis added.)

Workers' compensation law further provides that, in the event of such discrimination, the employer will be assessed with a 50 percent increase in the amount of award of compensation (up to $10,000), lost wages, along with an award of costs and expenses of up to $250.  (Lab.Code, § 132a;  see also Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at p. 667, 31 Cal.Rptr.2d 34.)

In contrast, the FEHA specifically allows for remedies to eliminate discriminatory practices.   For example, the court may order injunctive relief to effect physical changes in the workplace to accommodate a handicapped person.  (Gov.Code, § 12920;  Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 605–606, 40 Cal.Rptr.2d 350.)   The workers' compensation scheme provides no such remedies to the victim of discrimination.

Moreover, the FEHA provides far more remuneration to the victim of discrimination than does workers' compensation laws.   As noted, the Fair Employment and Housing Commission is empowered to award compensatory damages and an administrative fine for a combined ceiling of $50,000 per person.  (Gov.Code, § 12970, subds.(a)(3) & (c).)   In a court action, an employee may recover full compensatory and punitive damages.  (Gov.Code, § 12970, subd. (a)(3).)   The employer may be liable for attorney fees and costs that go well beyond the $250 workers' compensation maximum.  (Gov.Code, § 12965, subd. (b).)

The potential for a larger award of monetary damages means greater protection of victims' rights.  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683, 254 Cal.Rptr. 211, 765 P.2d 373 [“tort law is primarily designed to vindicate ‘social policy’ ”];  People v. Goss (1980) 109 Cal.App.3d 443, 460, 167 Cal.Rptr. 224 [restitution serves to rehabilitate the offender and to deter future criminal conduct];  see also Prosser & Keeton, Torts (5th ed. 1984) § 4, p. 25 [damages awarded in a tort action has “the ‘prophylactic’ factor of preventing future harm”].)

In short, City's contention that Labor Code section 132a provides more protection than the FEHA is belied by its wish to limit Dillon's claim by consigning it to the workers' compensation forum.   That is the forum where it faces less exposure to damages than in a civil lawsuit.

D. Labor Code Section 132a is Still a Remedy.

 City argues that if the FEHA offers more protection, Labor Code section 132a is superfluous.  Government Code section 12993 repeals only the exclusivity provision of worker's compensation law as it applies to workers, such as Dillon, who claim discrimination because of disability.   It does not prevent an employee, who so chooses, to pursue a claim of discrimination before the Workers' Compensation Appeals Board.   There is nothing inherently unusual in the availability of alternative mechanisms for resolving civil disputes.   (See e.g., Lab.Code, § 3602, subd. (b);  Johns–Manville Products Corp. v. Superior Court, supra, 27 Cal.3d at pp. 478–479, 165 Cal.Rptr. 858, 612 P.2d 948.)

Moreover, the anti-discriminatory protections of Labor Code section 132a remain available to those workers whose claims fall outside the ambit of the FEHA.  (Judson Steel Corp. v. Workers' Comp. Appeals Board, supra, 22 Cal.3d at p. 667, 150 Cal.Rptr. 250, 586 P.2d 564.)

E. Wrongful Termination.

In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, our Supreme Court upheld a remedy in tort for the termination of an employee who refused an employer's order to engage in activities which were violations of the antitrust law.   In subsequent cases, the court has upheld a discharged employee's right to sue in tort where the termination has been contrary to a fundamental public policy.  (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1089–1090, 4 Cal.Rptr.2d 874, 824 P.2d 680;  Rojo v. Kliger (1990) 52 Cal.3d 65, 88–89, 276 Cal.Rptr. 130, 801 P.2d 373.)

City, relying upon Jennings v. Marralle (1994) 8 Cal.4th 121, 130, 32 Cal.Rptr.2d 275, 876 P.2d 1074, and Angell v. Peterson Tractor, Inc., supra, 21 Cal.App.4th 981, 26 Cal.Rptr.2d 541, contends that discrimination against a disabled party will not support a Tameny common law claim for wrongful termination.   It asserts that a common law action must be based upon some fundamental policy, as expressed in either a statute or in a constitutional provision, and that the present statutory scheme fails to do this.

Jennings involved a claim of age discrimination against an employer who had fewer than five employees and was thus specifically excluded from the FEHA.   The Jennings court said that this exception was one of the reasons to preclude a tort action for wrongful termination.   The court held that a tort action for wrongful termination must be “ ‘carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions․' ”  (Jennings v. Marralle, supra, 8 Cal.4th at p. 135, 32 Cal.Rptr.2d 275, 876 P.2d 1074.)

The court decided that it would be unreasonable to allow an employee to proceed with a wrongful termination claim premised upon policies set forth in the FEHA against an employer who was expressly exempt from the FEHA.   (Jennings v. Marralle, supra, 8 Cal.4th at pp. 135–136, 32 Cal.Rptr.2d 275, 876 P.2d 1074.)   It found that “[t]he Legislature's decision to exclude small employers from the FEHA and the omission of any other legislation barring discrimination on the basis of age, precludes finding a fundamental policy that extends to age discrimination by small employers.”   (Id. at p. 135, 32 Cal.Rptr.2d 275, 876 P.2d 1074, emphasis added.)

The Jennings holding did not apply to large employers.  “Whether discrimination in employment on the basis of age violates a ‘fundamental’ public policy has not been resolved by this court.   We need not decide that question here since the ‘public policy’ on which plaintiff relies is not applicable to defendant.   He is not an ‘employer’ subject to the age discrimination provisions of the FEHA.”  (Jennings v. Marralle, supra, 8 Cal.4th at p. 130, 32 Cal.Rptr.2d 275, 876 P.2d 1074.)

This case differs significantly.   Unlike Jennings, here, the employer is subject to the FEHA because it has more than five employees.3  Second, the FEHA law facing the Jennings court has since been amended.   As we have discussed above, the 1993 amendment to Government Code section 12993 states unequivocally that the FEHA repeals those provisions of laws that provide less protection.   We now have a statute in which the Legislature has specifically expressed an intent to provide protection to the disabled.   This public policy is conspicuously “tethered” to the statutory provisions of the FEHA.

Furthermore, there is a third significant defense.   In Jennings, the Supreme Court noted that “․ there is presently no law of this state other than the FEHA which proscribes discrimination on the basis of age.”   (Jennings v. Marralle, supra, 8 Cal.4th at p. 132, 32 Cal.Rptr.2d 275, 876 P.2d 1074.)   In contrast, there exists a large body of law designed to protect the disabled.   This reflects an important value:  discharge from employment because of a physical disability contravenes public policy.

The public interest implicated here is evident from a review of the legislative history of the Americans with Disabilities Act (ADA).   Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) was enacted by Congress “to eliminate the ‘glaring neglect’ of the handicapped” and thereby rectify “one of the country's ‘shameful oversights,’ which caused the handicapped to live among society ‘shunted aside, hidden, and ignored.’ ”  (Alexander v. Choate (1985) 469 U.S. 287, 295–296, 105 S.Ct. 712, 717, 83 L.Ed.2d 661, 668–669.)

However, by the late 1980's, Congress found that section 504 did not afford adequate protection to people with disabilities.  (Helen L. v. DiDario (3d Cir.1995) 46 F.3d 325, 331;  Burgdorf, The Americans With Disabilities Act:  Analysis and Implications of a Second–Generation Civil Rights Statute (1991) 26 Harv.Civ.Rts.–L.Rev 413, 430–431 (hereafter Burgdorf).)   Congressional hearings also revealed that “public officials historically have been among the major perpetrators of segregated services․”  (Heather K. by Anita K. v. City of Mallard (N.D.Iowa 1995) 887 F.Supp. 1249, 1263.)

Statistical data evidenced that the disabled population of this country had the highest level of unemployment of any other demographic group.   (Burgdorf, supra, at p. 420.)   This was true notwithstanding that “those persons with disabilities who find jobs tend to perform as well as or better than their co-workers.”  (Id. at p. 421.)

In the drafting of this measure, Congress had recognized there to be “a compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and for the integration of persons with disabilities into the economic and social mainstream of American life.   Further there is a need to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.”  (S.Rep. No. 116, 20;  H.R.Rep. No. 485(II), 50;  cited in Helen L. v. DiDario, supra, 46 F.3d at p. 331, emphasis added.)

Congress declared that “historically, society has tended to isolate and segregate individuals with disabilities, ․ [¶] ․ discrimination against individuals with disabilities persists in such critical areas as employment, ․ [and] ․ the Nation's proper goals regarding such individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”   (42 U.S.C. § 12101.)

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act. (42 U.S.C. § 12101 et seq.)   The President characterized the ADA as “ ‘the world's first comprehensive declaration of equality for people with disabilities.’ ”  (Heather K. by Anita K. v. City of Mallard, supra, 887 F.Supp. at p. 1266.)

The ADA has significantly increased federal protection for the physically disabled.  (Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1060, 22 Cal.Rptr.2d 287, 856 P.2d 1143;  Wood v. County of Alameda (N.D.Cal.1995) 875 F.Supp. 659, 665.)   The act “is intended to combat the effects of ‘archaic attitudes,’ erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities.”  (Wooten v. Farmland Foods (8th Cir.1995) 58 F.3d 382, 385.)

In 1992, the California Legislature enacted laws designed to broaden the rights of this state's disabled community and, in this manner, gave added vitality to the ADA.  (Gov.Code, § 12926, subd. (k);  Cassista v. Community Foods, Inc., supra, 5 Cal.4th at p. 1060, 22 Cal.Rptr.2d 287, 856 P.2d 1143.)

California's anti-discrimination laws promote the public weal.  (Caldwell v. Montoya (1995) 10 Cal.4th 972, 987, 42 Cal.Rptr.2d 842, 897 P.2d 1320;  Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 213, 185 Cal.Rptr. 270, 649 P.2d 912;  Matthews v. Superior Court, supra, 34 Cal.App.4th at p. 602, 40 Cal.Rptr.2d 350.)  Government Code section 12920 declares that employment discrimination “foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development ․ and substantially and adversely affects the interest of employees, employers, and the public in general.”

According to the California Department of Rehabilitation, 4.5 million Californians of working age have disabilities.  (AOC, News Release No. 39, Sept. 11, 1995.)   As the population grows older, the number of disabled citizens will increase.  (Ibid;  see also 42 U.S.C. § 12101(a)(1).)

“[T]he Unruh Act unquestionably embodies a fundamental public policy in this state․”  (Schmidt v. Superior Court (1989) 48 Cal.3d 370, 382–383, 256 Cal.Rptr. 750, 769 P.2d 932.)   While the Act (Civ.Code, § 51) concerns accommodations and does not regulate the employer-employee relationship, it is a steadfast declaration of California's policy against discrimination.   (Winchell v. English (1976) 62 Cal.App.3d 125, 128, 133 Cal.Rptr. 20;  see also James v. Marinship Corp. (1944) 25 Cal.2d 721, 740, 155 P.2d 329.)   In 1992, the Legislature amended the Act to declare that “[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101–336) shall also constitute a violation of [the Unruh Act].”  (Civ.Code, § 51.)

Permitting an employer to freely discriminate against the disabled is highly offensive to those essential policies that are expressed in the above-mentioned legislation.  (E.g., see Muller v. Hotsy Corp. (N.D.Iowa 1996) 917 F.Supp. 1389.)   In light of those policies, the public interest is well-served by allowing Dillon, under the facts alleged in her complaint, to proceed with her cause of action for wrongful termination.

City's reliance on Angell v. Peterson Tractor Inc., supra, 21 Cal.App.4th 981, 26 Cal.Rptr.2d 541, is misplaced.  Angell held that an employee who suffers discrimination based upon a work-related injury is limited by Labor Code section 132a to remedies under the workers' compensation law.   The court, however, did not consider the amendment to the FEHA.

F. Intentional Infliction of Emotional Distress.

 An appellate court will not issue an opinion upon hypothetical questions of law.  (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 83 Cal.Rptr. 670, 464 P.2d 126;  Consolidated Vultee Aircraft Corp. v. United Automobile, etc. Workers (1946) 27 Cal.2d 859, 862–863, 167 P.2d 725.)

Respondent court sustained with leave to amend City's demurrer to Dillon's claim for intentional infliction of emotional distress.   In order to avoid dismissal of this cause, Dillon must allege that her emotional injury resulted from conduct that was distinct from that which arises out of the normal employment relationship.  (Shoemaker v. Myers, supra, 52 Cal.3d at p. 25, 276 Cal.Rptr. 303, 801 P.2d 1054.)   Because her amended pleading is not presently before us, we cannot determine whether her claim for emotional distress would survive the test set forth in Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743.


Government Code section 12993, subdivision (a) specifically repeals any provision of a statute which affords “less protection” than that provided by the Fair Employment and Housing Act. Its clear unadorned words control.   (Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.)   They obviate our need to ponder the Legislature's intent.

We order that the alternative writ, having served its purpose, be discharged and the petition be denied.   The stay of proceedings, previously ordered by this court, is dissolved.


1.   We take judicial notice of Dillon's workers' compensation petition.  (Evid.Code, §§ 452, subd. (d), 459.)   The petition requests reinstatement, lost wages, increased compensation and costs.

2.   Labor Code section 132a, states in pertinent part:  “It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.(1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee's compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250).   Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”

3.   Whether an employer of more than five employees may be sued for violation of laws protecting the rights of older workers is presently before our Supreme Court.  (Stevenson v. Superior Court (1996) 42 Cal.App.4th 1243, 50 Cal.Rptr.2d 206, review granted May 15, 1996.)

GILBERT, Associate Justice.

STEVEN J. STONE, P.J., and YEGAN, J., concur.

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