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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: March 12, 1996

Cheryl J. Kane, City Attorney, City of Moorpark;  and Burke, Williams & Sorensen, Harold A. Bridges and Heather C. Beatty, Los Angeles, for Petitioners. Armstrong & North, and William J. Armstrong, San Jose, as Amici Curiae on behalf of Petitioners. Maury Mills Jr., Ventura, for Real Party in Interest. Brad Seligman, Berkley, and Elaine Feingold;  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 injury arose out of her employment and, as such, she was being unlawfully discriminated against for filing a compensation claim.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.2  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 is found in Labor Code section 132a.3  It 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 any 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 certain limits.”  (1 Herlick, Cal. Workers' Compensation Law Practice (4th ed. 1990) § 1.1, p. 3.)

 The intent of the Workers' Compensation Act is to furnish employees with the means to 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 any 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' Compensation Appeals Board (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:  “Nothing contained in this part shall be deemed to repeal any provisions of the Civil Rights Law or 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.”

On January 1, 1994, the Legislature amended the statute 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 distinguish Langridge from the instant case.   It is their position that under the 1994 amendment, persons who have become disabled at their place of employment may now seek redress under the FEHA.  (See California 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 we look behind the statute and determine the raison d'etre for 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.  (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.)

 “ ‘[O]ur primary task in construing a statute is to determine the Legislature's intent․  “The court turns first to the words themselves for the answer.”  ․ ‘ ․ ‘Significance should be given ․ “to every word, phrase, sentence and part of an act.”  ․ ‘ ․’ ” [L]egislation should be construed so as to harmonize its various elements without doing violence to its language or spirit.'  ․ ‘The literal meaning of the words of a statute may be disregarded’ ․ if such a reading would frustrate the ‘ “manifest purposes” of the legislation as a whole.’  [Citation.]”  (Hartford Accident & Indemnity Co. v. Gonzalez (1994) 31 Cal.App.4th 51, 54, 36 Cal.Rptr.2d 769.)

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

 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.)

C. Does Workers' Compensation Provide Less Protection than the FEHA?

 Do remedies for discrimination under the workers' compensation law provide “less protection” for disabled individuals than FEHA?   To decide this issue, it is helpful to look at the laws that protect the rights of disabled individuals.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, was enacted by Congress “to eliminate the ‘glaring neglect’ of the handicapped” and thereby rectify this “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, 717–718, 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.C.R.–C.L.L.Rev. 413, 430–431 (hereafter Burgdorf).)

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.)

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act (ADA).  (42 U.S.C. § 12101 et seq.)   Congress recognized:  “[T]here is 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, original italics.)

Congress declared that “historically society has tended to isolate and segregate individuals with disabilities ․ [and] [¶] ․ discrimination against individuals with disabilities persists in such critical areas as employment, ․ [¶] ․ 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.)

The ADA has significantly increased federal protection of 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, give added vitality to the ADA.  (Gov.Code, § 12926, subd. (k);  Cassista v. Community Foods, Inc., supra, 5 Cal.4th 1050, 22 Cal.Rptr.2d 287, 856 P.2d 1143.)

California's anti-discriminatory 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 (1982) 32 Cal.3d 211, 213, 185 Cal.Rptr. 270, 649 P.2d 912;  Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 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.  (Administrative Office of the Courts, News Release No. 39, dated September 11, 1995.)   As the population grows older, the number of disabled citizens will increase.  (Id;  see also 42 U.S.C. § 12101(a)(1).)

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 v. Superior Court, supra, 32 Cal.3d at pp. 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 California 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.)

City points out that FEHA does not apply to all employers covered by the workers' compensation law, e.g., those with less than five employees, religious associations and non-profit corporations.  (See Gov.Code, § 12926, subd. (d);  Lab.Code, §§ 3351, 3352;  Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 233, 5 Cal.Rptr.2d 782, 825 P.2d 767.)   Although this is true, such persons have a common law claim for discrimination.  (Rojo v. Kliger (1990) 52 Cal.3d 65, 79, 276 Cal.Rptr. 130, 801 P.2d 373.)   Moreover, Dillon is not such an employee.   She is a member of the enumerated classes of persons covered by FEHA, and Labor Code section 132a provides less protection to her.

Workers' compensation benefits provide significantly less 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 total 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 (2d Ed 1976) § 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.)

The law 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.)

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

Moreover, FEHA provides far more remuneration to the victim of discrimination than does workers' compensation laws.   As noted, the FEHA 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.  (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, at p. 25 [damages awarded in a tort action has “the ‘prophylactic’ factor of preventing future harm.”].)

City's contention that Labor Code section 132a provides more protection than FEHA is belied by its wish to consign Dillon's claim to the workers' compensation forum.   That is the forum where its exposure to damages is less in comparison to what it faces in a civil lawsuit;  Labor Code section 132a provides Dillon less protection than would otherwise be afforded her in a judicial forum.   She may therefore seek redress in the courts.

We reject City's assertion that the trial court's interpretation of Government Code section 12993, subdivision (a) renders Labor Code section 132a superfluous.  Section 12993, subdivision (a) preempts only those provisions of laws which afford less protection than the FEHA.  Labor Code section 132a remains as a remedy for employees discriminated against because of their having filed workers' compensation claims and for those employees who are not under the protection of the FEHA.  (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347, 21 Cal.Rptr.2d 292.)


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.)   The petition requests reinstatement, lost wages, increased compensation and costs.

2.   The parties have only briefed the issue of the discrimination cause of action.   Accordingly, we take no position as to the merits of the other claims contained in her complaint.

3.   Labor Code section 132a, in pertinent part, states “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.”

GILBERT, Associate Justice.

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