CAMMACK v. GTE CALIFORNIA INCORPORATED

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Court of Appeal, Second District, Division 5, California.

David CAMMACK, Plaintiff and Appellant, v. GTE CALIFORNIA INCORPORATED et al., Defendants and Respondents.

No. B092027.

Decided: August 08, 1996

Sparagna, Sparagna & Ferrone and John A. Ferrone, Encino, for Plaintiff and Appellant. Mark F. Sullivan, Thousand Islands, for Defendants and Respondents.

I. INTRODUCTION

Plaintiff, David Cammack, appeals from the judgment entered in favor of defendants, GTE California Incorporated (“GTE”), sued as General Telephone Corporation, and its employee Pam Woody.   Based on preemption by the California Workers' Compensation Act (Lab.Code, §§ 3600 et seq., hereafter “the act”), the trial court sustained without leave to amend the demurrer to plaintiff's first amended complaint in which he alleged a cause of action based on a work-related injury, for unlawful disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”).  (Gov.Code, §§ 12940 1 et seq.)   Plaintiff contends the 1992 and 1993 amendments to the FEHA and section 12993, subdivision (a) require employers to reasonably accommodate persons disabled by work-related injuries and a cause of action for refusal to do so is not preempted by the act.   For the reasons set forth below, we conclude no implied repeal of the preemptive effect of the act occurred.   As a result, we affirm the judgment of dismissal.

II. FACTUAL AND PROCEDURAL BACKGROUND 2

On November 15, 1994, plaintiff filed a first amended complaint for damages for unlawful disability discrimination under the FEHA. We assume the truth of all factual allegations in the first amended complaint.  (Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083;  Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 36, 32 Cal.Rptr.2d 200, 876 P.2d 999.)   In the first amended complaint, plaintiff alleged he was employed by GTE and suffered from bilateral carpal tunnel syndrome.   On July 1, 1991, due to “persisting bilateral carpal tunnel complaints,” plaintiff became disabled.   Later, he attempted to return to work before his “benefits had expired․”  He requested “reasonable accommodation” at his work station from Ms. Woody.   According to the first amended complaint, Ms. Woody “refused to provide any reasonable accommodation to plaintiff․”  When his benefits expired on July 16, 1993, plaintiff was terminated.   On June 21, 1994, the United States Equal Employment Opportunity Commission issued a right to sue letter.3  Also, the first amended complaint alleged:  other employees of GTE received “reasonable accommodation”;  the refusal of GTE and Ms. Woody to provide “reasonable accommodation and [to] force plaintiff to exhaust all benefits resulting in plaintiff's termination while granting accommodation to other ․ employees was discriminatory”;  the implementation of the written policy of GTE by Ms. Woody “had a discriminatory impact against plaintiff”;  and the discriminatory application of the aforementioned written policies resulted in plaintiff's termination.   Plaintiff's damages included loss of earnings as well as “humiliation, embarrassment, mental and emotional stress and discomfort․”  Plaintiff also sought awards of punitive damages and attorney fees.   At oral argument, plaintiff's counsel argued that all of his client's injuries were incurred in the workplace.

On February 2, 1995, defendants filed a demurrer to plaintiff's first amended complaint arguing:  workers' compensation provided the exclusive remedy for plaintiff's physical disability based on his work-related injury;  plaintiff had an ongoing workers' compensation claim pending before the Workers' Compensation Appeals Board relating to the same injury;  and plaintiff filed a claim under Labor Code section 132a which was subsequently dismissed by him with prejudice.   On February 17, 1995, plaintiff filed opposition arguing:  his first amended complaint for unlawful disability discrimination by failing to reasonably accommodate him in violation of section 12940, subdivision (a), was not preempted by the workers' compensation remedy;  his dismissed complaint under Labor Code section 132a was irrelevant because that section does not provide for reasonable accommodation for a work-related injury;  and the FEHA provided for a specific remedy in this case.   On February 23, 1995, GTE filed a reply brief arguing:  plaintiff's cause of action was covered under Labor Code section 132a which forbids discrimination for a work-related injury;  plaintiff dismissed that claim with prejudice;  and plaintiff's cause of action in his first amended complaint was subject to workers' compensation.   The court sustained the demurrer without leave to amend because plaintiff's cause of action arose out of defendants' response to his work place injury and such was preempted by the act.

 On April 10, 1995, plaintiff timely appealed.   Although the appeal was taken from the order sustaining the demurrer, a nonappealable order, we treat the notice of appeal as a premature but valid notice of appeal from the subsequently entered May 7, 1996, order of dismissal filed by defendants at the request of this court.  (Cal. Rules of Court, rule 2(c);  Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074;  Turpin v. Sortini (1982) 31 Cal.3d 220, 224, fn. 2, 182 Cal.Rptr. 337, 643 P.2d 954;  Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695, 40 Cal.Rptr.2d 125;  Flowers & Sons Development Corp. v. Municipal Court (1978) 86 Cal.App.3d 818, 822, fn. 1, 150 Cal.Rptr. 555;  Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239, 134 Cal.Rptr. 314.)

DISCUSSION 4

A. Standard of Review

 The sole issue on appeal is whether plaintiff's FEHA discrimination claim based on a work-related injury is preempted by the act.   The California Supreme Court has described our responsibilities in reviewing the first amended complaint to determine whether plaintiff's FEHA discrimination claim is preempted as follows:  “This appeal turns on whether the [[courts below were]] correct in determining that workers' compensation is [the plaintiff's] exclusive remedy.   Ordinarily, ‘․ a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the ․ Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application.  [Citations.]’  [Citation.]   However, when a complaint affirmatively alleges facts indicating that the Act applies, no civil action will lie, and the complaint is subject to a general demurrer unless it states additional facts that negate application of the exclusive remedy rule.”  (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1060, 40 Cal.Rptr.2d 116, 892 P.2d 150;  accord, Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96–97, 151 Cal.Rptr. 347, 587 P.2d 1160.)   We apply the following standard of review:  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.   (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58;  Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865, disapproved on other grounds Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, fn. 5, 45 Cal.Rptr.2d 436, 902 P.2d 740.) The court does not, however, assume the truth of contentions, deductions or conclusions of law.  (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.)   The judgment must be affirmed “if any one of the several grounds of demurrer is well taken.   [Citations.]”  (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21, 157 Cal.Rptr. 706, 598 P.2d 866.)   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.  (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817.)   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.”  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

 Specifically, since the parties present only legal issues involving the act's statutory preemption, independent review of such questions construing the statutes is exercised by this court.  (Cf. Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672;  California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.)   Our Supreme Court has held the following in connection with our duties in construing statutes:  “The rules governing statutory construction are well settled.   We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.   [Citations.]  ‘In determining intent, we look first to the language of the statute, giving effect to its “plain meaning.” ’  [Citations.]  Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature.  [Citation.]  Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.  [Citation.]”  (Burden v. Snowden, supra, 2 Cal.4th at p. 562, 7 Cal.Rptr.2d 531, 828 P.2d 672;  Webb v. Workers' Comp. Appeals Bd. (1980) 28 Cal.3d 621, 626, 170 Cal.Rptr. 32, 620 P.2d 618;  Leroy T. v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 434, 438, 115 Cal.Rptr. 761, 525 P.2d 665;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   The Supreme Court has held:  “Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.  [Citations.]  Interpretive constructions which render some words surplusage, defy common sense, or lead to mischief or absurdity, are to be avoided.  [Citations.]  In the present instance both the legislative history of the statute and the wider historical circumstances of its enactment are legitimate and valuable aids in divining the statutory purpose.  [Citations.]”  (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836;  accord, Burden v. Snowden, supra, 2 Cal.4th at p. 562, 7 Cal.Rptr.2d 531, 828 P.2d 672;  cf.  Webb v. Workers' Comp. Appeals Bd., supra, 28 Cal.3d at p. 626, 170 Cal.Rptr. 32, 620 P.2d 618.)   Our Supreme Court has noted:  “ ‘One who contends that a provision of an act must not be applied according to the natural or customary purport of its language must show either that some other section of the act expands or restricts its meaning, that the provision itself is repugnant to the general purview of the act, or that the act considered in pari materia with other acts, or with the legislative history of the subject matter, imports a different meaning.’  [Citation.]”  (Leroy T. v. Workmen's Comp. Appeals Bd., supra, 12 Cal.3d at p. 438, 115 Cal.Rptr. 761, 525 P.2d 665.)   Later, we will discuss the California Supreme Court authority concerning implied repeals of well established bodies of law.   The body of California Supreme Court authority on the subject of the disfavored nature of implied repeals of well established decisional and statutory law is especially pertinent to this case.

B. Workers' Compensation Act

1. Parameters of Exclusive Jurisdiction

 Generally, workers' compensation is the exclusive remedy for a work-related injury, even if the employee is denied the right to seek a redress at law.  (Lab.Code, §§ 3600,5 3601, 3602;  Arriaga v. County of Alameda, supra, 9 Cal.4th at p. 1065, 40 Cal.Rptr.2d 116, 892 P.2d 150;  Shoemaker v. Myers (1990) 52 Cal.3d 1, 14–17, 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 act affords California's employees the means to swiftly secure compensation for work-related injuries.6  (Cal. Const., art.   XIV, § 4;  Shoemaker v. Myers, supra, 52 Cal.3d at pp. 15–16, 276 Cal.Rptr. 303, 801 P.2d 1054.)   It furnishes employees the means to seek compensatory damages for the diverse injuries they may suffer at job sites.  (Arriaga v. County of Alameda, supra, 9 Cal.4th at p. 1061, 40 Cal.Rptr.2d 116, 892 P.2d 150.)   Our Supreme Court has held:  “The Act [is to] ‘be liberally construed by the courts with the purpose of extending [its] benefits for the protection of persons injured in the course of their employment.’ ”  (Arriaga v. County of Alameda, supra, 9 Cal.4th at p. 1065, 40 Cal.Rptr.2d 116, 892 P.2d 150;  Webb v. Workers' Comp. Appeals Bd., supra, 28 Cal.3d at pp. 626–634, 170 Cal.Rptr. 32, 620 P.2d 618.)   This liberal construction applies to matters of factual and statutory construction.   Our Supreme Court has held:  “Thus, ‘[i]f a provision in [the Act] may be reasonably construed to provide coverage or payments, that construction should usually be adopted even if another reasonable construction is possible.’  [Citation.]  The rule of liberal construction ‘is not altered because a plaintiff believes that [she] can establish negligence on the part of [her] employer and brings a civil suit for damages.’  [Citation.]  It requires that we liberally construe the Act ‘in favor of awarding work [ers' ] compensation, not in permitting civil litigation.  [Citation.]’  [Citations.]”  (Arriaga v. County of Alameda, supra, 9 Cal.4th at p. 1065, 40 Cal.Rptr.2d 116, 892 P.2d 150.)

 Recently, in La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 35, 36 Cal.Rptr.2d 100, 884 P.2d 1048 our Supreme Court compared the Workers' Compensation Appeals Board's (the board) exclusive jurisdiction over an employee's claim for compensation benefits and the superior court's authority to consider a damage cause of action arising from conduct in the workplace.   Our Supreme Court held an employers' workers' compensation insurer had no duty to defend the civil action when an employee sued for emotional distress based on wrongful termination.   This was because the insurer's promise to pay compensation benefits did not translate into a duty to defend a civil action seeking damages.  (Id. at pp. 44–46, 36 Cal.Rptr.2d 100, 884 P.2d 1048.)   In connection with the board's exclusive jurisdiction, our Supreme Court in La Jolla stated:  “Pursuant to constitutional mandate, the Legislature has vested the Workers' Compensation Appeals Board ․ with exclusive jurisdiction over claims for workers' compensation benefits.  (Cal. Const., art.   XIV, § 4;  Lab.Code, § 5300.)   Accordingly, the superior court and the [Workers' Compensation Appeals Board] in this case ‘do not have concurrent jurisdiction over the whole of the controversy, and one of them will be without jurisdiction to grant any relief whatsoever, depending upon whether or not the injuries were suffered within the course and scope of an employment relationship and so covered by the workmen's compensation laws.’  (Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 82–83, 293 P.2d 18[ ], italics [omitted].)”  (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co., supra, 9 Cal.4th at p. 35, 36 Cal.Rptr.2d 100, 884 P.2d 1048.)   Our Supreme Court in La Jolla further explained:  “ ‘It is elementary that the type and extent of relief which can be granted and the factors by which such relief is determined differ materially between the two tribunals;  the superior court cannot award workmen's compensation benefits, and the commission cannot award damages for injuries.’  [Citation.]  The only point of concurrent jurisdiction of the two tribunals is jurisdiction to determine jurisdiction;  jurisdiction once determined is exclusive, not concurrent.  [Citation.]  [¶] ‘[T]he legal theory supporting such exclusive remedy provisions is a presumed “compensation bargain,” pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.   The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort․  The function of the exclusive remedy provisions is to give efficacy to the theoretical “compensation bargain.” ’  (Shoemaker v. Myers [, supra,] 52 Cal.3d [at p.] 16 [276 Cal.Rptr. 303, 801 P.2d 1054].)”  (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co., supra, 9 Cal.4th at pp. 35–36, 36 Cal.Rptr.2d 100, 884 P.2d 1048.)

2. Decisional and Statutorily Created Exceptions to Exclusive Jurisdiction

 The California Supreme Court has recognized statutorily created exceptions to the board's exclusive jurisdiction.  (Shoemaker v. Myers, supra, 52 Cal.3d at p. 23, 276 Cal.Rptr. 303, 801 P.2d 1054.)   In Shoemaker v. Myers, supra, 52 Cal.3d at pages 20–23, 276 Cal.Rptr. 303, 801 P.2d 1054, our Supreme Court recognized the board's exclusive jurisdiction did not apply when an employee's wrongful termination violated section 19683, the “whistleblower” statute.7  It explained the Legislature intended the “whistleblower” statute to afford an additional remedy to those already granted in the act.   Otherwise the Legislature's intent in creating an additional remedy under the “whistleblower” statute would be rendered meaningless.   The ills intended to be remedied are different as to each statute, and the enactment of the whistleblower statute “defines the protected activity as a specific statutory exception to the provisions of the workers' compensation law;  such conduct lies well outside the compensation bargain.”  (Id. at pp. 22–23, 276 Cal.Rptr. 303, 801 P.2d 1054.)   This is true even though damages would be available for personal injury normally covered by the workers' compensation system.  (Id. at p. 22, 276 Cal.Rptr. 303, 801 P.2d 1054.)   Our Supreme Court held:  “[D]isabling injuries, whether physical or mental, arising from termination of employment are generally within the coverage of workers' compensation and subject to the exclusive remedy provisions, unless the discharge comes within an express or implied statutory exception or the discharge results from risks reasonably deemed not to be within the compensation bargain.”  (Id. at p. 7, 276 Cal.Rptr. 303, 801 P.2d 1054.) However, we note again there were exceptions to the preemption provided by the act.   Certain appellate decisions have held some types of discrimination are outside the risk reasonably encompassed within the compensation bargain.   (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 722–723, 30 Cal.Rptr.2d 18, 872 P.2d 559 [false imprisonment cause of action is exception to workers' compensation exclusivity];  Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1100, 4 Cal.Rptr.2d 874, 824 P.2d 680 [the act did not preempt employee's claims for tortious discharge in contravention of fundamental public policy];  Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 480, 4 Cal.Rptr.2d 522 [retaliation for trying to prevent jobplace sexual harassment];  Goldman v. Wilsey Foods, Inc. (1989) 216 Cal.App.3d 1085, 1095, 265 Cal.Rptr. 294 [religious discrimination];  Meninga v. Raley's, Inc. (1989) 216 Cal.App.3d 79, 91, 264 Cal.Rptr. 319 [sex discrimination].)

3. Preemption and its Exceptions for Work–Related Disability Discrimination Under Labor Code Section 132a

 Labor Code section 132a states 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.” 8  This provision affords an employee a remedy for discrimination rising from or attributable to the occurrence of an industrial work-related injury.  (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 667–668, 150 Cal.Rptr. 250, 586 P.2d 564.)   Abundant decisional authority has established a claim of disability discrimination arising prior to the 1992 and 1993 amendments to the FEHA out of a work-related injury was preempted by Labor Code section 132a.  (Langridge v. Oakland Unified School Dist. (1994) 25 Cal.App.4th 664, 666, 31 Cal.Rptr.2d 34;  Angell v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981, 987–997, 26 Cal.Rptr.2d 541;  Usher v. American Airlines Inc. (1993) 20 Cal.App.4th 1520, 1526, 25 Cal.Rptr.2d 335;  Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1235, 13 Cal.Rptr.2d 170;  Fortner v. Safeway Stores, Inc. (1991) 229 Cal.App.3d 542, 548–551, 280 Cal.Rptr. 409;  Meninga v. Raley's, Inc., supra, 216 Cal.App.3d at p. 88, 264 Cal.Rptr. 319;  Pickrel v. General Telephone Co. (1988) 205 Cal.App.3d 1058, 1060–1064, 252 Cal.Rptr. 878;  County of Santa Barbara v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 211, 215, 167 Cal.Rptr. 65.)

C. FEHA

1. Purpose—To Provide Effective Remedies for and Prevent and Eliminate Discrimination in the Workplace

 The California Fair Employment Practice Act (former Lab.Code, § 1410 et seq.) was enacted in 1959 and in 1980 was recodified and included in the FEHA. The law established that freedom from discrimination in employment on specific grounds, including disability, is a civil right and such disparate treatment is violative of public policy. (§ 12921;  Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 44, 276 Cal.Rptr. 114, 801 P.2d 357.)   As it relates to employment practices, the purpose of the FEHA is to provide effective remedies in a comprehensive scheme which prevent, combat, and eliminate discriminatory practices in the workplace.  (Peralta Community College Dist. v. Fair Employment & Housing Com., supra, 52 Cal.3d at pp. 48–49, 276 Cal.Rptr. 114, 801 P.2d 357;  Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272;  Commodore Home Systems Inc. v. Superior Court (1982) 32 Cal.3d 211, 213, 185 Cal.Rptr. 270, 649 P.2d 912.)   This court has noted:  “The public policy underlying the FEHA is ‘to prohibit harassment and discrimination in employment on the basis of any protected classification.   Such conduct whether intentional or unintentional is a violation of the civil rights of California citizenry and has been shown to decrease productivity in the workforce․’ ”  (Stats.1984, ch. 1754, p. 6403.)   The Legislature has further declared that:  “ ․ [T]he practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance [sic ], and substantially and adversely affects the interest of employees, employers, and the public in general․  [¶] [ ] ‘It is the purpose of [the FEHA] to provide effective remedies which will eliminate such discriminatory practices.’ (§ 12920.)”  (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 602, 40 Cal.Rptr.2d 350.)

2. 1992 and 1993 FEHA Amendments to Section 12993, Subdivision (a) Did Not Abolish the Labor Code Section 132a Preemption for Work–Related Disability Discrimination

Prior to 1992 and 1993, section 12993, in pertinent part, stated:  “(a) 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 this 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․” 9 Our Supreme Court found, based on this language, that the “FEHA does not supplant other state laws, including claims under the common law, relating to employment discrimination․”  (Rojo v. Kliger (1990) 52 Cal.3d 65, 70, 276 Cal.Rptr. 130, 801 P.2d 373.)

In 1992, the Legislature amended the FEHA to accommodate provisions of the Americans with Disabilities Act of 1990.  (Pub.L. No. 101–336 (codified as amended in relevant part at 42 U.S.C. § 12101 et seq.).)   As part of the 1992 California legislation, section 12993 was amended.   In 1992, the Legislature amended section 12993, subdivision (a) to read in pertinent part:  “(a) [T]his 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 disability, mental disability, medical condition, marital status, sex, or age.”   The Legislature left intact section 12993, subdivisions (b) and (c) which were originally adopted in 1980.  (Stats.1980, ch. 992, § 4, p. 3164.)   Section 12993, subdivisions (b) and (c) continued to state:  “(b) Nothing contained in this part relating to discrimination in employment on account of sex or medical condition shall be deemed to affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan, provided that those terms or conditions are in accordance with customary and reasonable or actuarially sound underwriting practices. [¶] (c) While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 or 51.7 of the Civil Code or to prohibit a city, city and county, county, or other political subdivision of this state from providing or maintaining greater protections for the classes of persons protected by the provisions of this part covering housing discrimination.”   (Stats.1992, ch. 913, No. 6, Deering's Adv. Legis.   Service, pp. 3876–3877.)   The 1992 amendments were effective January 1, 1993.  (Stats.1992, ch. 913, No. 6, Deering's Adv. Legis.   Service, pp. 3885–3886;  Cal. Const., art.   IV, § 8, subd. (c).)

 In 1993, section 12993, subdivision (a) was amended to read as it does now as follows:  “(a) 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 disability, mental disability, medical condition, marital status, sex, or age, unless those provisions provide less protection to the enumerated classes of persons covered under this part.”  (Stats.1993, ch. 1277, No. 8 Deering's Adv. Legis.   Service, p. 7005.)   Section 12993, subdivisions (b) and (c) were unaffected by the 1993 legislation.   Plaintiff argues the unambiguous language of section 12993, subdivision (a) provides that if any other law relating to discrimination based on a disability or medical condition provides the same or less “protection” to a disabled person, then he contends the FEHA applies.   If another law relating to discrimination based on a disability or medical condition provides greater “protection,” then the FEHA is inapplicable.   Plaintiff argues that the FEHA provides greater protections than those set forth in Labor Code section 132a.   Hence, he contends, the preemption (Lab.Code, § 3600 et seq.) under the act has been repealed.   We conclude for the reasons set forth below, the recent amendments to section 12993, subdivision (a) did not, explicitly or impliedly, repeal the exclusive nature of the remedy for work-related injury discrimination provided by Labor Code section 132a.

 We agree with defendant that section 12993, subdivision (a) did not impliedly act to repeal Labor Code sections 132a or 3600–3602.   Although the issue is not as clear as we would wish, the truth is the 1992 and 1993 amendments to the FEHA relied upon by plaintiff did not act as an implied repeal of either Labor Code section 132a or the preemptive effect of the act.  (Lab.Code, § 3600 et seq.)   The California Supreme Court has repeatedly emphasized that implied repeals of well established rules of law are disfavored (Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 267, 41 Cal.Rptr.2d 220, 895 P.2d 56 [no implied repeal of a portion of the Cartwright Act];  People v. King (1978) 22 Cal.3d 12, 23, 148 Cal.Rptr. 409, 582 P.2d 1000 [no implied repeal of law of self-defense for felons resulted from the enactment of Penal Code § 12021] ) and cannot be given effect except under circumstances not present here.   This rule of law was articulated in Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 6–7, 128 Cal.Rptr. 673, 547 P.2d 449 as follows:  “The application of either formula B or C would require us to discern an intent on the part of the Legislature that the 1971 amendments to [Labor Code] section 4658 function so as to effect a repeal or at least a partial repeal of [Labor Code] section 4750.   Generally, we will not presume the existence of such an intent in the absence of an express declaration.  [Citation.]  Repeals by implication are not favored, and are recognized only when there is no rational basis for harmonizing two potentially conflicting laws.  [Citation.]  Furthermore, we must assume that when passing a statute the Legislature is aware of existing related laws and intends to maintain a consistent body of rules.  [Citations.]  In Theodor v. Superior Court (1972) 8 Cal.3d 77, 92, 104 Cal.Rptr. 226, 501 P.2d 234, we spoke ․ of the policy that it should not be presumed that the Legislature in the enactment of statutes intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication.  (Accord, People v. Davenport (1985) 41 Cal.3d 247, 266, 221 Cal.Rptr. 794, 710 P.2d 861.)   Similarly in Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 379, 20 Cal.Rptr.2d 330, 853 P.2d 496, our Supreme Court held:  However, repeals by implication are not favored, and we do not recognize them unless two apparently conflicting laws cannot be harmonized.  [Citation.]  As we recently reiterated, [s]o strong is the presumption against implied repeals that when a new enactment conflicts with an existing provision [i]n order for the second law to repeal or supersede the first, the former must constitute a revision of the entire subject, so that the court may say that it was intended to be a substitute for the first.”  (Internal quotation marks omitted;  accord, Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 43, 283 Cal.Rptr. 584, 812 P.2d 931.)   In Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288, 298, 285 Cal.Rptr. 86, 814 P.2d 1328, our Supreme Court held, “[S]tatutes should be interpreted in such a way as to make them consistent with each other, rather than obviate one another.”  (Accord, People v. Pieters (1991) 52 Cal.3d 894, 899, 276 Cal.Rptr. 918, 802 P.2d 420.)

The common sense application of the foregoing body of law to the present case leads to the conclusion neither Labor Code section 132a nor the preemptive effect of the act were impliedly repealed by the adoption of section 12993.   Labor Code section 132a and the preemptive effect of the act in general and on the FEHA are well established rules of law.   Labor Code section 132a was adopted in 1941 (Stats.1941, ch. 401, § 1, p. 1686) and has been the subject of extensive judicial interpretation and comment.  (E.g., Jimeno v. Mobil Oil Corp. (9th Cir.1995) 66 F.3d 1514, 1528–1535;  Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 199, 172 Cal.Rptr. 487, 624 P.2d 1215;  Judson Steel Corp. v. Workers' Comp. Appeals Bd., supra, 22 Cal.3d at pp. 664–665, 668, 150 Cal.Rptr. 250, 586 P.2d 564;  Roseborough v. N.L. Industries (1984) 10 Ohio St.3d 142, 462 N.E.2d 384, 388 (dissent of Holmes, J.);  Bryant v. Dayton Casket Co. (1982) 69 Ohio St.2d 367, 433 N.E.2d 142, 145;  Ferguson v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1620–1622, 39 Cal.Rptr.2d 806;  Superior Care Facilities v. Workers' Comp. Appeals Bd. (1994) 27 Cal.App.4th 1015, 1027–1028, 32 Cal.Rptr.2d 918;  Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at p. 666, 31 Cal.Rptr.2d 34;  Dyer v. Workers' Comp. Appeals Bd. (1994) 22 Cal.App.4th 1376, 1385–1387, 28 Cal.Rptr.2d 30;  Angell v. Peterson Tractor, Inc., supra, 21 Cal.App.4th at pp. 987–997, 26 Cal.Rptr.2d 541;  Usher v. American Airlines, Inc., supra, 20 Cal.App.4th at pp. 1525–1526, 25 Cal.Rptr.2d 335;  Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347, 21 Cal.Rptr.2d 292;  Denney v. Universal City Studios, Inc., supra, 10 Cal.App.4th at pp. 1234–1236, 13 Cal.Rptr.2d 170;  Fortner v. Safeway Stores, Inc., supra, 229 Cal.App.3d at pp. 547–548, 280 Cal.Rptr. 409;  Barns v. Workers' Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, 531, 266 Cal.Rptr. 503;  Meninga v. Raley's, Inc., supra, 216 Cal.App.3d at p. 88, 264 Cal.Rptr. 319;  Raven v. Oakland Unified School Dist. (1989) 213 Cal.App.3d 1347, 1363–1364, 262 Cal.Rptr. 354;  Pickrel v. General Telephone Co., supra, 205 Cal.App.3d at pp. 1063–1064, 252 Cal.Rptr. 878;  Stemler v. Workers' Comp. Appeals Bd. (1988) 204 Cal.App.3d 577, 579–584, 251 Cal.Rptr. 364;  Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 545–546, 249 Cal.Rptr. 5;  Potter v. Arizona So. Coach Lines, Inc. (1988) 202 Cal.App.3d 126, 131, 248 Cal.Rptr. 284;  St. Cyr v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 468, 471–473, 243 Cal.Rptr. 1;  Leamon v. Workers' Comp. Appeals Bd. (1987) 190 Cal.App.3d 1409, 1414–1416, 235 Cal.Rptr. 912;  Pacific Bell v. Workers' Comp. Appeals Bd. (1986) 186 Cal.App.3d 1603, 1614–1616, 231 Cal.Rptr. 484;  Jordan v. Workers' Comp. Appeals Bd. (1985) 175 Cal.App.3d 162, 166, 220 Cal.Rptr. 554;  Meyer v. Byron Jackson, Inc. (1984) 161 Cal.App.3d 402, 409–413, 207 Cal.Rptr. 663;  Morehouse v. Workers' Comp. Appeals Bd. (1984) 154 Cal.App.3d 323, 328–331, 201 Cal.Rptr. 154;  United Food and Commercial Workers Union v. Clougherty Packing Co. (1984) 154 Cal.App.3d 282, 285–286, 201 Cal.Rptr. 183;  Smith v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 1104, 1106–1110, 199 Cal.Rptr. 881;  Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 303, fn. 9, 188 Cal.Rptr. 159;  Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 289–290, 182 Cal.Rptr. 291;  City of Anaheim v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 609, 613–615, 177 Cal.Rptr. 441;  Anderson v. Workers' Comp. Appeals Bd. (1981) 116 Cal.App.3d 954, 960, 172 Cal.Rptr. 398;  Burton v. Workers' Comp. Appeals Bd. (1980) 112 Cal.App.3d 85, 88–91, 169 Cal.Rptr. 72;  County of Santa Barbara v. Workers' Comp. Appeals Bd., supra, 109 Cal.App.3d at pp. 214–215, 167 Cal.Rptr. 65;  Western Electric Co. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 629, 638–642, 160 Cal.Rptr. 436;  State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1979) 88 Cal.App.3d 43, 55, 152 Cal.Rptr. 153;  Hanna, California Law of Employee Injuries and Workers' Compensation (2d ed.1996) pp. 2–75, 2–94, 10–19 through 10–29, 11–10 through 11–11, 11–56, 21–52 through 21–55, 24–26 through 24–26.1, 25–23 through 25–24, Appendix 25;  Herlick, California Workers' Compensation Handbook (15th ed.1995) § 11.27, pp. 9–13 through 9–14, 14–80;  Case Law Development (1995) 19 Mental & Physical Disability L. Rep. 754;  1 Herlick Cal. Workers' Compensation Law (5th ed.1994) pp. 11–39 through 11–47;  20 Cal. Pract.   Tort Law (Wilkinson & Barker 1991) § 42.2, fn. 25, p. 429 & 1996 Supp. § 42.2, fn. 25, p. 76;  St. Clair, California Workers' Compensation Law and Practice (1990) pp. 610–622, Fall 1991 Supp. pp. 36–39;  Campbell, Waiver of Rights and Release From Liability in Workers' Compensation Redemption Proceedings Under Section 686 of the Michigan Act (1990) Det. C.L.Rev. 1, 15–16;  2 O'Brien, Workers' Compensation Claims and Benefits (7th ed.1989) pp. 805–831;  Nauyokas, Two Growing Procedural Defenses in Common Law Wrongful Discharge Cases—Preemption and Res Judicata (1989) 11 U.Haw.L.Rev. 143, 165, 174;  2 Witkin, Summary of Cal. Law (9th ed.1987) §§ 21–24, pp. 574–578;  29 Cal. Jur.3d revised, § 74, Employer and Employee, p. 663, note 87Cal.   Workers' Compensation Practice (Cont.Ed.Bar 1985) §§ 14.122–14.125, pp.   632–634 & 1996 Supp. §§ 14.122–14.125, pp. 273–276;  Cal. Workers' Compensation Damages Practice (Cont.Ed.Bar 1985) § 3.25, p. 61 & 1996 Supp. § 3.18D, pp. 65–66;  Silberman & Taylor, Rehabilitation:  The California System (3d ed.1984) pp. 77–81;  Mastoris, 1981–1982 Summary of Workers' Compensation Law (1982) pp. 149–152;  65 Cal.Jur. revised § 16, Work Injury Compensation, pp. 48–50, suppl.1995 § 16, pp. 8–13;  Mastoris, Summary of 1979–1980 California Workers Compensation Law (1980) pp. 39, 67–68.)   Further, the preemptive effect of the act which has existed since 1917 (Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 719, 30 Cal.Rptr.2d 18, 872 P.2d 559;  Stats.1917, ch. 586, § 6, p. 834) has been the subject of extraordinary extensive judicial decision and comment.  (Arriaga v. County of Alameda, supra, 9 Cal.4th at p. 1065, 40 Cal.Rptr.2d 116, 892 P.2d 150;  La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co., supra, 9 Cal.4th at p. 35, 36 Cal.Rptr.2d 100, 884 P.2d 1048;  Shoemaker v. Myers, supra, 52 Cal.3d at pp. 14–16, 276 Cal.Rptr. 303, 801 P.2d 1054;  Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160, 233 Cal.Rptr. 308, 729 P.2d 743.)   More critically, as previously noted, the preemptive effect of the Labor Code section 132a over the disability discrimination provisions of the FEHA and other laws has likewise been the subject of extensive judicial analysis.  (Jimeno v. Mobil Oil Corp., supra, 66 F.3d at pp. 1528–1535 [the act provides the exclusive remedy for work related injuries];  Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at p. 666, 31 Cal.Rptr.2d 34 [claims under the FEHA for physical disability discrimination based on a work-related injury are preempted by workers' compensation law because they are a risk included in the compensation bargain];  Angell v. Peterson Tractor, Inc., supra, 21 Cal.App.4th at pp. 987–997, 26 Cal.Rptr.2d 541 [the act provides the exclusive remedy for an employee with a work-related heart condition who was discharged wrongfully];  Usher v. American Airlines, Inc., supra, 20 Cal.App.4th at p. 1526, 25 Cal.Rptr.2d 335 [the act provides the exclusive remedy for employee claiming constructive termination because of a work-related injury];  Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 347, 21 Cal.Rptr.2d 292 [sex discrimination is not a normal incident of employment and therefore is not preempted by Lab.Code, § 132a or the act];  Denney v. Universal City Studios, Inc., supra, 10 Cal.App.4th at pp. 1234–1236, 13 Cal.Rptr.2d 170 [Lab.Code, § 132a provides a remedy for “handicap discrimination” and precludes a cause of action under the FEHA];  Fortner v. Safeway Stores, Inc., supra, 229 Cal.App.3d at pp. 547–548, 280 Cal.Rptr. 409 [Lab.Code, § 132a provides an exclusive remedy for handicapped discrimination against an industrially injured employee];  Pickrel v. General Telephone Co., supra, 205 Cal.App.3d at pp. 1063–1064, 252 Cal.Rptr. 878 [claims for employer discrimination based on industrial injury is preempted by Lab.Code, § 132a];  Pacific Bell v. Workers' Comp. Appeals Bd., supra, 186 Cal.App.3d at pp. 1615–1616, 231 Cal.Rptr. 484 [Workers' Compensation Appeals Board's action in reinstating service credits and increasing compensation for an employee unable to work a certain number of hours, in part because of an industrially related disability within the meaning of Lab.Code, § 132a, was preempted by the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.) ];  Portillo v. G.T. Price Products, Inc., supra, 131 Cal.App.3d at pp. 289–290, 182 Cal.Rptr. 291 [Lab.Code, § 132a exclusive remedy for employee upon claim of wrongful discharge after she filed workers' compensation injury claim];  County of Santa Barbara v. Workers' Comp. Appeals Bd., supra, 109 Cal.App.3d at pp. 214–215, 167 Cal.Rptr. 65 [Lab.Code, § 132a provides remedy for post-work-related injury reduction in status and pay].)   Section 12933 does not expressly declare that Labor Code section 132a or the preemptive effect of the act are the subject of the repeal nor do the 1992 amendments purport to affect any of the substantial foregoing authority.   Further, we have reviewed substantial legislative committee reports prepared in connection with the adoption of section 12993 and no reference is made to the act in general or Labor Code section 132a specifically.10  (Sen. Rules Com., 3d reading analysis of Assem.   Bill No. 2244 (1993–1994 Reg. Sess.) as amended September 1, 1993;  Sen. Com. on Judiciary, Analysis of Assem.   Bill No. 2244 (1993–1994 Reg. Sess.) as amended August 23, 1993;  Ways and Means Com. Analysis of Assem.   Bill No. 2244 (1993–1994 Reg. Sess.) hrg. date June 2, 1993;  Assem.   Com. on Judiciary, Analysis of Assem.   Bill No. 2244 (1993–1994 Reg. Sess.) hrg. date April 28, 1993;  Assem.   Com. on Judiciary, Analysis of Assem.   Bill No. 2244 (1993–1994 Reg. Sess.) hrg. date April 21, 1993;  Legal Analysis of Bill No. 2244;  Stats.1993, ch.   1277 (AB 2244);  Sen. Floor Amend., Analysis of Assem.   Bill No. 1286 (1991–1992 Reg. Sess.);   Assem.  Com. on Judiciary, Analysis of Assem.   Bill No. 1077 (1991–1992 Reg. Sess.) as amended January 6, 1992;  Cal. Dept. Finance, Bill Analysis of Assem.   Bill No. 1286 (1991–1992 Reg. Sess.) as amended August 19, 1991;  Legis.   Analyst Comments, Analysis of Assem.   Bill No. 1286 (1991–1992 Reg. Sess.) Aug. 15, 1991;  Cal. Dept. Finance, Bill Analysis of Assem.   Bill No. 1286 (1991–1992 Reg. Sess.) as amended May 21, 1991;  U.S. Dept. of Housing and Urban Development, Sen. Bill No. 1234, letter report dated April 20, 1993.) Also, section 12933 does not constitute a “revision of the entire subject” of discrimination in the workplace due to job related injuries.  (Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 379, 20 Cal.Rptr.2d 330, 853 P.2d 496, internal quotation marks omitted.)   No language in the FEHA mentions the act nor do the committee reports prepared prior to the adoption of section 12993.   Moreover, a perfectly legitimate consistent construction of the two sets of statutes is that when the disability and the discrimination arise in the workplace, such is solely subject to the act.   By contrast, discrimination, even in the workplace, when the disability arose outside the employment context is subject to the FEHA. In this fashion, the two sets of remedies are consistent and one does not obviate the other.

(Nickelsberg v. Workers' Comp. Appeals Bd., supra, 54 Cal.3d at p. 298, 285 Cal.Rptr. 86, 814 P.2d 1328.)   Therefore, the demurrer was properly sustained without leave to amend.11

 Three additional comments are pertinent.   First, we recognize this issue for what it is:  one of relative closeness in terms of questions of statutory construction.   Plaintiff relies on section 12993, subdivision (c) which indicates, in relevant part:  “While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part ․ nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code.” The foregoing language in section 12993, subdivision (c) concerning a legislative intention to “occupy the field” is arguably consistent with a legislative intention to “ ‘constitute a revision of the entire subject’ ” of disability discrimination so, to paraphrase the words of our Supreme Court in Roberts v. City of Palmdale, supra, 5 Cal.4th at page 379, 20 Cal.Rptr.2d 330, 853 P.2d 496, the 1993 amendments to the FEHA may be found to be “ ‘intended to be a substitute for’ ” Labor Code section 132a.   We are unpersuaded by this analysis.   Prior to the 1992 and 1993 amendments, section 12993, subdivision (c) contained the exact same language it does now.  (Stats.1980, ch. 992, § 4, p. 3164.)   Prior to the 1992 and 1993 amendments, our Supreme Court held that section 12993, subdivision (c) only preempted local law, not other remedies adopted by the Legislature.  (Rojo v. Kliger, supra, 52 Cal.3d at pp. 76–78, 276 Cal.Rptr. 130, 801 P.2d 373.)   The 1992 and 1993 amendments did not articulate a new legislative design at all in terms of job related discrimination when a disability arose in the workplace.   No legislative history or express statutory language evidence an intent to abrogate the holding of Rojo v. Kliger, supra, 52 Cal.3d at pages 76–78, 276 Cal.Rptr. 130, 801 P.2d 373.   Section 12993, subdivision (c) said what it always had since it went into effect on January 1, 1981.   Even after the adoption of section 12993, subdivision (c), in 1990 the Courts of Appeal were unanimous in their determination that the FEHA was preempted by Labor Code section 132a in connection with discrimination against a disabled worker who suffered the disabling injury in the workplace.  (Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at p. 666, 31 Cal.Rptr.2d 34;  Angell v. Peterson Tractor, Inc., supra, 21 Cal.App.4th at pp. 987–997, 26 Cal.Rptr.2d 541;  Usher v. American Airlines Inc., supra, 20 Cal.App.4th at p. 1526, 25 Cal.Rptr.2d 335;  Denney v. Universal City Studios, Inc. supra, 10 Cal.App.4th at p. 1235, 13 Cal.Rptr.2d 170;  Fortner v. Safeway Stores, Inc., supra, 229 Cal.App.3d at pp. 548–551, 280 Cal.Rptr. 409;  Meninga v. Raley's, Inc., supra, 216 Cal.App.3d at p. 88, 264 Cal.Rptr. 319;  Pickrel v. General Telephone Co., supra, 205 Cal.App.3d at pp. 1060–1064, 252 Cal.Rptr. 878.)   The 1992 and 1993 amendments did not change section 12993, subdivision (c);  hence, it cannot be construed to be indicative of an intention to revise the entire subject of workplace disability discrimination so as to constitute a valid implied repeal of the preemptive effect of the act.

The second comment relates to the illogical nature of plaintiff's theory of repeal of the preemptive provisions (Lab.Code, § 3600 et seq.) of the act.   Plaintiff argues that the preemptive effect of the act has been repealed because the FEHA provides greater protection to employees who are discriminated against in the workplace.   However, plaintiff further argues that section 12993, subdivision (a) effects repeal only of the preemptive effect of the act appearing in Labor Code section 3600 et seq.   Plaintiff argues that section 12993, subdivision (c) did not repeal Labor Code section 132a.   He reasons that he is entitled to pursue his Labor Code section 132a benefits as well as his FEHA remedies.   Frankly, the suggestion that a repeal of the preemptive provisions of the act has occurred but not an abrogation of the remedies set forth in Labor Code section 132a is unpersuasive and demonstrates the illogic of plaintiff's position.   It makes much more sense to conclude, given the well established California Supreme Court authority concerning implied repeals, that the 1992 and 1993 amendments to section 12993, subdivision (a) did not affect the well established principles relative to the preemptive effect of Labor Code sections 132a and 3600 et seq.   Section 12993, subdivision (a) speaks of the potential repeal of “any other law of this state relating to discrimination because of ․ physical disability․”  If a “repeal” occurred because of the adoption of section 12993, subdivision (a), then most likely both the preemptive effect of the act as well as Labor Code section 132a would have been repealed.   Nonetheless, there is no evidence of a legislative intent to repeal either the exclusivity provisions or Labor Code section 132a.

 The third and final additional aspect of this case that warrants comment relates to plaintiff's assertion that disability discrimination is outside the compensation bargain.   In Fermino v. Fedco, Inc., supra, 7 Cal.4th at pages 715–720, 30 Cal.Rptr.2d 18, 872 P.2d 559, our Supreme Court held that the intentional tort of false imprisonment was outside the compensation bargain and the Legislature hence did not intend for such criminal conduct (Pen.Code, § 236) to be immune from an action at law.   The Fermino court held, “It cannot be inferred either from the context in which the 1982 amendments were passed, or from the language of section 3602 itself, that the Legislature intended to bar actions for false imprisonment when it amended section 3602.”  (Id. at p. 721, 30 Cal.Rptr.2d 18, 872 P.2d 559.)   In the discrimination context, the Courts of Appeal have held that the Legislature did not intend the act to preempt acts of retaliation for:  attempting to forestall sexual harassment (Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 480, 4 Cal.Rptr.2d 522);  religious discrimination (Goldman v. Wilsey Foods, Inc., supra, 216 Cal.App.3d at pp. 1095–1096, 265 Cal.Rptr. 294);  and sex discrimination.  (Meninga v. Raley's, Inc., supra, 216 Cal.App.3d at pp. 90–91, 264 Cal.Rptr. 319.)   Intentional discrimination against a disabled employee who files a compensation claim can no doubt be as hurtful, spiteful, and societally harmful as other forms of bias.   However, we have no doubt the Legislature intended that preemptive effect of the act to apply to intentional discrimination directed at an employee who seeks the benefits of the workers' compensation system.   Unlike religious, sexual, or other forms of discrimination, the Legislature enacted Labor Code section 132a which applies specifically to bias directed at the disabled arising out of a workers' compensation claim.   This is solely an issue of legislative intent.   There can be no doubt that Labor Code section 132a was intended to apply to the discrimination directed at the disabled.

Moreover, the “outside the compensation bargain” analysis also relates to the following:  “Just as the individual employment agreement may not include terms which violate fundamental public policy [citation], so the more general ‘compensation bargain’ cannot encompass conduct, such as sexual or racial discrimination, ‘obnoxious to the interests of the state and contrary to public policy and sound morality.’ ”  (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1101, 4 Cal.Rptr.2d 874, 824 P.2d 680;  Shoemaker v. Myers, supra, 52 Cal.3d at pp. 16–17, 276 Cal.Rptr. 303, 801 P.2d 1054.)   Discrimination directed at the disabled fits within the ambit of such employer misconduct.   Nonetheless, the Legislature has specifically adopted a statute, Labor Code section 132a, as part of the act which provides a penalty for discrimination directed at employees who are disabled as a result of injury in the workplace.   As noted previously, the Courts of Appeal have unanimously concluded such employer misconduct is subject to the exclusive remedy doctrine.  (Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at p. 666, 31 Cal.Rptr.2d 34;  Angell v. Peterson Tractor, Inc., supra, 21 Cal.App.4th at pp. 987–997, 26 Cal.Rptr.2d 541;  Usher v. American Airlines Inc., supra, 20 Cal.App.4th at p. 1526, 25 Cal.Rptr.2d 335;  Denney v. Universal City Studios, Inc., supra, 10 Cal.App.4th at p. 1235, 13 Cal.Rptr.2d 170;  Fortner v. Safeway Stores, Inc., supra, 229 Cal.App.3d at pp. 548–551, 280 Cal.Rptr. 409;  Meninga v. Raley's, Inc., supra, 216 Cal.App.3d at p. 88, 264 Cal.Rptr. 319;  Pickrel v. General Telephone Co., supra, 205 Cal.App.3d at pp. 1060–1064, 252 Cal.Rptr. 878.)   The California Constitution grants the “plenary power” (Cal. Const., art.   XIV, § 4) to the Legislature to establish a workers' compensation remedy.   Pursuant to that plenary constitutional power, a specific remedy which is aimed at a particular workplace evil, discrimination against a person suffering from a disability which arose on the job, has been adopted by the Legislature.   We are without the constitutional power to set aside the legislative determination to provide an exclusive remedy from such specific employer misconduct.   None of the decisions finding employer misconduct to be outside the compensation bargain involve such a specific legislative selection of a particular remedy.   Accordingly, unlike cases which have found deliberate employer misconduct to be outside the compensation bargain, the discrimination alleged in the first amended complaint is the subject of a specific provision of the act and we must therefore faithfully execute the Legislature's intent.   Hence, the authority pertinent to certain employer misconduct being outside the compensation bargain does not apply to the present case where the Legislature has spoken with great clarity as to whether discrimination against the disabled when the disability arose in the workplace is covered by a specific enactment, Labor Code section 132a.  (Fermino v. Fedco, Inc., supra, 7 Cal.4th at pp. 721–724, 30 Cal.Rptr.2d 18, 872 P.2d 559 [false imprisonment];  Gantt v. Sentry Insurance, supra, 1 Cal.4th at pp. 1098–1101, 4 Cal.Rptr.2d 874, 824 P.2d 680 [tortious discharge in contravention of fundamental public policy];  Shoemaker v. Myers, supra, 52 Cal.3d at pp. 12–23, 276 Cal.Rptr. 303, 801 P.2d 1054 [whistleblower statute (§ 19683) ];  Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 312–313, 219 Cal.Rptr. 485, 707 P.2d 858 [injuries sustained outside the workplace during off hours by use of employer's product];  Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 282–283, 179 Cal.Rptr. 30, 637 P.2d 266 [dual capacity of employer and manufacturer];  Johns–Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 475–479, 165 Cal.Rptr. 858, 612 P.2d 948 [fraudulent concealment of dangerous workplace condition];  Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 624–631, 102 Cal.Rptr. 815, 498 P.2d 1063 [workers' compensation insurer intentionally engaged in deceitful investigation];  Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1706–1707, 39 Cal.Rptr.2d 65 [discrimination based upon sexual orientation];  Finch v. Brenda Raceway Corp. (1994) 22 Cal.App.4th 547, 554, 27 Cal.Rptr.2d 531 [false representations concerning duration of employment (Lab.Code, § 970) ];  Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 347, 21 Cal.Rptr.2d 292 [sexual harassment];  Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 480, 4 Cal.Rptr.2d 522 [retaliation for attempting to prevent jobplace sexual harassment];  Coca–Cola Bottling Co. v. Superior Court (1991) 233 Cal.App.3d 1273, 1285, 286 Cal.Rptr. 855 [negligent spoilation of evidence in employee's third party action for work related injury];  Lopez v. Sikkema (1991) 229 Cal.App.3d 31, 39–40, 280 Cal.Rptr. 7 [deliberate shooting and violation of civil rights of employee];  Goldman v. Wilsey Foods, Inc., supra, 216 Cal.App.3d at p. 1095, 265 Cal.Rptr. 294 [religious discrimination];  Meninga v. Raley's, Inc., supra, 216 Cal.App.3d at p. 91, 264 Cal.Rptr. 319 [sex discrimination];  Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1285–1287, 261 Cal.Rptr. 204 [race discrimination];  Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 804–809, 244 Cal.Rptr. 37 [race discrimination];  Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1426–1431, 235 Cal.Rptr. 68 [sexual harassment];  see Davaris v. Cubaleski (1993) 12 Cal.App.4th 1583, 1590–1591, 16 Cal.Rptr.2d 330 [defamatory statements made for the sole purpose of damaging an employee's reputation].)   In this regard, we are in full accord with the following analysis presented by our colleague, Associate Justice Donald B. King in Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at page 669, footnote 1, 31 Cal.Rptr.2d 34, where he wrote:  “In the California Supreme Court's most recent decision on workers' compensation exclusivity, [Fermino v. Fedco, Inc.], the court held that a civil suit for false imprisonment of an employee suspected of stealing the proceeds of a retail sale was not barred because the tort of false imprisonment involves criminal conduct and for that reason is outside the workers' compensation bargain.   In contrast, physical disability discrimination is not a criminal offense;  various civil penalties and fines are prescribed by Government Code section 12970.   On that basis, the present case is distinguishable from Fermino.   The Fermino opinion also reiterates that employer conduct which violates public policy, such as sexual or racial discrimination, is outside the compensation bargain.  [Citation.]  A plausible argument can be made that physical disability discrimination, like sexual or racial discrimination, violates public policy.   Nevertheless, the present case involves a peculiar situation, where the type of discrimination at issue is specifically covered by a provision of the workers' compensation law, Labor Code section 132a, which prescribes increased remedies for discrimination based on a work-related injury.   This state of affairs takes the present case outside the general public policy language in Fermino.   Despite the apparent public policy against physical disability discrimination, the Legislature has, through Labor Code section 132a, placed work-related disability discrimination within the scope of the compensation bargain.”  (Accord, Angell v. Peterson Tractor, Inc., supra, 21 Cal.App.4th at p. 994, 26 Cal.Rptr.2d 541;  Usher v. American Airlines, Inc., supra, 20 Cal.App.4th at pp. 1526–1527, 25 Cal.Rptr.2d 335.)   For these combined reasons, we must affirm the judgment.

IV. DISPOSITION

The judgment is affirmed.   Defendants, GTE, California Incorporated, sued as General Telephone Corporation, and Pam Woody, shall recover their costs on appeal from plaintiff, David Cammack.

GRIGNON and PEREZ, JJ., concur.

FOOTNOTES

1.   Unless otherwise indicated, all future statutory references are to the Government Code.

2.   In accordance with California Rules of Court, rule 12(a), we augmented the record on appeal with the superior court file.

3.   The first amended complaint does not allege the issuance of a right to sue letter by the California Department of Fair Employment and Housing (“DFEH”).   The operative pleading alleges a discrimination complaint was filed with the DFEH but no allegation is made concerning the issuance of a right to sue letter.   The issue was not raised in defendants' demurrer.   No issue has been raised on appeal concerning plaintiff's failure to exhaust his administrative remedies. (§ 12960;  Martin v. Fisher (1992) 11 Cal.App.4th 118, 119–123, 13 Cal.Rptr.2d 922;  Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1060–1061, 282 Cal.Rptr. 726.)   Hence, the issue insofar as it relates to a failure to exhaust administrative remedies has been waived for purposes of this appeal.  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4, 188 Cal.Rptr. 115, 655 P.2d 317;  Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70, 187 P.2d 686, disapproved on another point in Bailey v. Los Angeles (1956) 46 Cal.2d 132, 139, 293 P.2d 449.)

4.   For purposes of clarity, we will henceforth collectively refer to GTE and Ms. Woody as “defendants” unless otherwise noted.

5.   Labor Code section 3600, subdivision (a) provides:  “(a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:  [¶] (1) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.  [¶] (2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.  [¶] (3) Where the injury is proximately caused by the employment, either with or without negligence.  [¶] (4) Where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.   As used in this paragraph, ‘controlled substance’ shall have the same meaning as prescribed in Section 11007 of the Health and Safety Code. [¶] (5) Where the injury is not intentionally self-inflicted.  [¶] (6) Where the employee has not willfully and deliberately caused his or her own death.  [¶] (7) Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.  [¶] (8) Where the injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted.  [¶] (9) Where the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee's work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.   The administrative director shall promulgate reasonable rules and regulations requiring employers to post and keep posted in a conspicuous place or places a notice advising employees of the provisions of this subdivision.   Failure of the employer to post the notice shall not constitute an expression of intent to waive the provisions of this subdivision.  [¶] (10) Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:  [¶] (A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff.  [¶] (B) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.  [¶] (C) The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.  [¶] (D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.   For purposes of this paragraph, an employee provided notice pursuant to Sections 44948.5, 44949, 44951, 44955, 44955.6, 72411, 87740, and 87743 of the Education Code shall be considered to have been provided a notice of termination or layoff only upon a district's final decision not to reemploy that person.  [¶] A notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the provisions of this paragraph, and this paragraph shall not apply until receipt of a later notice of termination or layoff.   The issuance of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this paragraph inapplicable to the employee.”

6.   Article XIV, section 4 of the California Constitution provides in pertinent part:  “The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers' compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, ․ incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party.   A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers ․ to the extent of relieving from the consequences of any injury ․ incurred or sustained by workers in the course of their employment, irrespective of the fault of any party;  ․ full provision for such ․ remedial treatment as is requisite to cure and relieve from the effects of such injury;  ․ full provision for ․ securing the payment of compensation;  and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character;  all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the State government․”

7.   Section 19683 provided in pertinent part at the time of the Shoemaker decision:  “No state officer or employee nor any person whatsoever shall directly or indirectly use or threaten to use any official authority or influence in any manner whatsoever which tends to discourage, restrain, interfere with, coerce or discriminate against any other state officer or employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the Attorney General, or the Joint Legislative Audit Committee pursuant to ․ Division 2, or any other appropriate authority any facts or information relative to actual or suspected violation of any law of this state or the United States occurring on the job or directly related thereto.   Any person guilty of such an act may be liable in an action for civil damages brought against him by the offended party.   Notwithstanding the provision of Section 19682, a violation of this section shall not be a misdemeanor.”

8.   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.”

9.   The remaining portions of section 12993 provide:  “(b) Nothing contained in this part relating to discrimination in employment on account of sex or medical condition shall be deemed to affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan, provided the terms or conditions are in accordance with customary and reasonable or actuarially sound underwriting practices. [¶] (c) While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code.” On January 1, 1994, the Legislature amended the statute to conclude the following phrase “․ unless those provisions provide less protection to the enumerated classes of persons covered under this part.” (§ 12993, subd. (a).)

10.   On March 11, 1996, we granted defendants' unopposed judicial notice request for legislative committee reports promulgated by the Legislature and certain other documents which reflect true indicia of legislative intent.  (Evid.Code, §§ 451–452, 459;  Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250, fn. 7, 19 Cal.Rptr.2d 698, 851 P.2d 1307;  California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at pp. 698–701, 170 Cal.Rptr. 817, 621 P.2d 856.)   However, we did not consider the letters and other documents which merely state the legislations' authors' opinions as distinguished from a statement of intent by the legislative body.  (Ibid.;  In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590–591, 128 Cal.Rptr. 427, 546 P.2d 1371;  Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.) In connection with the 1992 amendments, reference was made in the Legislative Counsel's Digest to a proposed section 12994 to the act.   However, the proposed section 12994 was never adopted and no committee reports advert to the act in general or Labor Code section 132a.  (Jimeno v. Mobil Oil Corp., supra, 66 F.3d at p. 1530.)   In connection with the 1993 amendments to section 12993, no references were made in any committee reports or Legislative Counsel's Digest to the act or Labor Code section132a.

11.   Because we have resolved the preemption issue on the merits, we need not discuss the issues raised by the compromise and release.

TURNER, Presiding Justice.

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