ROBINSON v. FAIR EMPLOYMENT AND HOUSING COMMISSION

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Court of Appeal, Fourth District, Division 3, California.

J.E. ROBINSON, Plaintiff and Respondent, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Appellant.

No. G009029.

Decided: November 30, 1990

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston and Henry Torres, Jr., Deputy Attys. Gen., for defendant and appellant. Grace E. Emery, Santa Ana, for plaintiff and respondent.

OPINION

The Fair Employment and Housing Commission appeals the decision that it acted in excess of its jurisdiction in determining J.E. Robinson to be an employer subject to the provisions of the Fair Employment and Housing Act (the Act).  (Gov.Code, § 12900 et seq.)

I

Josephine Saul worked for Robinson as a dental assistant for eight years.   After Saul took a six-week pregnancy leave, Robinson refused to reinstate her.

Saul filed a complaint with the Department of Fair Employment and Housing.   The director of the department issued an accusation against Robinson, which was tried before an administrative law judge.   Upon review by the commission, it did not adopt the judge's proposed decision;  instead, it determined Robinson should have rehired Saul.

Robinson filed a petition for writ of administrative mandamus (Gov.Code, § 11523;  Code Civ.Proc., § 1094.5), alleging that because he is not an employer as defined by the Act, the commission had no jurisdiction to act.   The superior court agreed and the commission appeals.

II

 Government Code section 12945 provides, in pertinent part:  “It shall be an unlawful employment practice ․ [f]or any employer to refuse to allow a female employee affected by pregnancy, childbirth, or related medical conditions ․ [t]o take a leave on account of pregnancy for a reasonable period of time․”   Saul comes within this statute's purview;  thus, the only question we must determine is whether Robinson is an employer as defined by the Act.

Section 12926, subdivision (c) of the Act, enacted in 1980, defines an employer as “any person regularly employing five or more persons․”   Robinson employed six people, although five of them worked only two days a week.

Robinson argues he is not an employer under the Act because the number of employees physically present each working day is determinative, not the actual number of people employed.   We do not agree.

Robinson relies on a regulation adopted in 1983 by the commission.   It defines “regularly employing” as “employing five or more individuals for each working day in any twenty consecutive calendar weeks in the current calendar year or preceding calendar year.”  (Cal.Admin.Code, tit. 2, § 7286.5, subd. (a)(1).)   Robinson maintains this regulatory definition is controlling.   But his argument ignores several factors.

The commission has held that employees need not work every day to be counted toward the five-employee minimum.  (DFEH v. Bee Hive Answering Service (1984) FEHC Dec. No. 84–16, p. 16 [1984–85 CEB 8];  DFEH v. Travel Express (1983) FEHC Dec. No. 83–17, pp. 3–5 [1982–83 CEB 16].)  Indeed, it has held “jurisdiction exists where an employer has five or more individuals on the payroll during the pertinent statutory time period;  the individuals need not be physically present at the workplace during each working day.”  (See DFEH v. Bee Hive Answering Service, supra, at p. 13.)

No California court has interpreted the statute, but the commission's decisions are of great significance.  “Such ‘[c]onsistent administrative construction of a statute over many years, particularly when it originated with those charged with putting the statutory machinery into effect, is entitled to great weight․’  [Citation.]”  (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 491, 156 Cal.Rptr. 14, 595 P.2d 592.) 1

The Act's federal counterpart, title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), defines an employer as a “person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year․”  (42 U.S.C. § 2000e, subd. (b).)  The language is virtually identical to that found in the state regulation, but “[e]very [federal] court which has addressed the issue has held that regular part-time employees are employees within the meaning of § 2000e(b).   E.g., Pedreyra v. Cornell Prescription Pharmacies, 465 F.Supp. 936, 941 (D.Colo.1979);  Hornick v. Borough of Duryea, 507 F.Supp. 1091, 1097 (M.D.Pa.1980);  cf. Pascutoi v. Washburn–McReavy Mortuary, 11 F.E.P. 1325, 1327 (D.Minn.1975);  see Dumas v. Town of Mount Vernon, 612 F.2d 974, 979 n. 7 (5th Cir.1980), see also 2 Larson, Employment Discrimination, § 5.32, (Matthew Bender & Co. 1973).”  (Thurber v. Jack Reilly's, Inc. (1st Cir.1983) 717 F.2d 633, 634.) 2

In defining an employer as one who has five or more employees on the payroll, although not necessarily physically present each day, we give effect to the intent of the Act:  “It is the purpose of [the statute] to provide effective remedies which will eliminate ․ discriminatory practices.”  (Gov.Code, § 12920.)   As a remedial statute it requires liberal construction to promote its objective.  (Alford v. Pierno (1972) 27 Cal.App.3d 682, 688, 104 Cal.Rptr. 110.)   Moreover, section 12993, subdivision (a) of the Act specifically mandates a liberal interpretation of the Act's provisions.   Accordingly, the definition of an employer requires a broad reading.

To hold, as the trial court did, that the term “regularly employing” in section 12926, subdivision (c) of the Act refers to the number of employees physically present at the work place each day, is to give a narrow interpretation to the Act.   However, as a matter of public policy, it must be construed to safeguard the right of every person to hold employment without discrimination on account of gender.  (Gov.Code, § 12920.)

Judgment reversed.

FOOTNOTES

1.   We note Government Code section 12926 was amended in 1985, adding new subdivisions but leaving intact subdivision (c).   The Legislature, therefore, had the opportunity to correct the commission's definition of employer.

2.   Robinson cites McGraw v. Warren County Oil Co. (8th Cir.1983) 707 F.2d 990 and Zimmerman v. North American Signal Co. (7th Cir.1983) 704 F.2d 347.   Those cases are distinguishable.   Both interpret the Age Discrimination in Employment Act.In McGraw, the court considered whether corporate directors could be considered employees and what period of time constituted a calendar year.   In Zimmerman, the court concluded hourly workers were not employees.

SONENSHINE, Associate Justice.

WALLIN, Acting P.J., and MOORE, J., concur.