ROJO v. KLIGER (1989)

Plaintiffs and appellants Emma Rojo (Rojo) and Teresa Maloney (Maloney) (collectively appellants) appeal a grant of summary judgment in favor of defendants and respondents Irwin H. Kliger, an individual, and Irwin H. Kliger, M.D., a medical corporation (collectively Kliger) on their sexual harassment claims.¹

SUMMARY STATEMENT

The California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), provides a remedy for the vindication of the constitutional right to be free of employment discrimination.  (Cal. Const., art. I, § 8;  State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 432, 217 Cal.Rptr. 16, 703 P.2d 354.) ²  Sex discrimination in private employment contravenes this state's public policy expressed in article I, section 8, and gives rise to a claim for tortious wrongful discharge.

In enacting the FEHA, the Legislature did not intend to occupy the field so as to preempt common law causes of action.   Therefore, a plaintiff may elect to pursue the administrative remedy afforded by the FEHA or file directly in a court of law.³

FACTUAL & PROCEDURAL BACKGROUND

On August 29, 1986, appellants filed a “Complaint for Violation of Civil Rights and Intentional Infliction of Emotional Distress” in the superior court.

The complaint alleged:  Rojo and Maloney, adult females, were employed by Kliger;  during the term of their employment, they were subjected by Kliger to sexually harassing remarks and demands for sexual favors;  Kliger implied their acquiescence would ensure their continued employment;  Kliger's conduct violated section 12940, subdivision (i), of the FEHA, which requires an employer to take all reasonable steps to prevent discrimination and harassment, and was intentional and malicious and in disregard of the fact that Rojo and Maloney would suffer humiliation and emotional distress.

Kliger answered, denied the allegations, and asserted various affirmative defenses, including assumption of the risk and comparative negligence.   Kliger then moved for summary judgment on the ground Rojo and Maloney had failed to pursue or exhaust their exclusive remedy under the FEHA.

In opposition papers, Rojo and Maloney argued pursuit of the administrative remedy is not a condition precedent to maintaining an action based upon sexual employment discrimination.   They also maintained the FEHA did not preempt existing state law, but only local governmental law.

Additionally, appellants' papers cited their deposition testimony as to Kliger's offensive remarks and uninvited intimate touchings.   Finally, the papers indicated appellants would request leave to amend their complaint to seek damages for assault and battery and wrongful discharge, among other causes of action.

On October 8, 1987, Rojo and Maloney filed a motion for leave to file a proposed first amended complaint.   The summary judgment motion was heard the same day.

 The trial court was unpersuaded by appellants' opposition papers and ruled no authority permitted a sex discrimination claim to be filed directly in the superior court, and that their first recourse was to FEHA administrative proceedings.   After a brief hearing, the trial court granted summary judgment for Kliger.⁴

CONTENTIONS

Appellants contend the FEHA does not preempt other remedies available to plaintiffs who suffer gender-based employment discrimination, and that pursuing and exhausting the statute's administrative remedy is not a condition precedent to their maintaining a civil action against Kliger.

Kliger urges the doctrine of exhaustion of administrative remedies bars appellants' suit because the FEHA supersedes any common law remedies relating to employment discrimination.

DISCUSSION

1. California FEHA a manifestation of public policy against gender-based employment discrimination.a. Summary statement.

As indicated, the trial court granted summary judgment in favor of Kliger on the ground appellants failed to exhaust their administrative remedy under the FEHA.   An aggrieved party generally is required to pursue an available administrative remedy prior to seeking relief in a court of law.   That course of conduct is necessary where the comprehensiveness of the statutory scheme compels the conclusion that any common law remedies concerning the same subject matter are superseded.  (Pacific Scene, Inc. v. Penasquitos, Inc. (1988) 46 Cal.3d 407, 411–414, 250 Cal.Rptr. 651, 758 P.2d 1182.)

However, any implied preemption analysis can be defeated by a showing of a pre-existing common law remedy and a contrary intent expressed by the language of the statute itself.   The FEHA contains such provisions.  (§ 12993, subds. (a), (c).)

b. Historical overview.

1959 saw the adoption of the California Fair Employment Practice Act (FEPA) (former Lab.Code, § 1410 et seq.) and the creation of the State Fair Employment Practice Commission (former Lab.Code, § 1414), which was charged with preventing and eliminating unlawful employment practices by public and private employers (former Lab.Code, §§ 1413, 1420, 1421).   The FEPA declared it is “the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, or ancestry.”  (Former Lab.Code, § 1411, stats. 1959, ch. 121, § 1, p. 1999.)   In 1970, sex finally was added to the FEPA as a protected category.  (Stats. 1970, ch. 1508, § 1 p. 2994.)

The FEPA was repealed by Statutes 1980, chapter 992, section 11, page 3166, and revised, expanded and recodified in 1980 in the FEHA.

c. The FEHA.

“ ‘The [FEHA] establishes that freedom from job discrimination on specified grounds, ․ [including sex] is a civil right.  (§ 12921.)   It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940).  [Fn. omitted.]’  [Citation.]  The statute creates two administrative bodies:  the Department of Fair Employment and Housing (the department) (§ 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination (§ 12930), and the [Fair Employment and Housing Commission], which [commission] performs adjudicatory and rulemaking functions (§ 12935, see also § 12903).   An aggrieved person may file a complaint with the department (§ 12960), which must promptly investigate (§ 12963).   If the department deems a claim valid it seeks to resolve the matter—in confidence—by conference, conciliation, and persuasion.  (§ 12963.7.)   If that fails or seems inappropriate, the department may issue an accusation to be heard by the commission.  (§§ 12965, subd. (a), 12969.)   The department acts as prosecutor on the accusation and argues the complainant's case before the commission.  [Citations.]”  (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383–1384, 241 Cal.Rptr. 67, 743 P.2d 1323.)

If no accusation is issued within 150 days after the filing of a complaint, or if the department earlier determines not to prosecute the case, and the matter is not otherwise resolved, the department must give the complainant a “right-to-sue” letter.   Only then may that person bring a civil suit in the superior court.  (§ 12965, subd. (b)).  (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, at p. 1384, 241 Cal.Rptr. 67, 743 P.2d 1323;  Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213–214, 185 Cal.Rptr. 270, 649 P.2d 912.)

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

d. Rules of statutory interpretation.

The applicable rules to be used in the interpretation of the statute are found in Brown v. Superior Court (1984) 37 Cal.3d 477, 208 Cal.Rptr. 724, 691 P.2d 272, wherein our Supreme Court was required to construe another portion of the FEHA.

“ ‘The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.  [Citations.]  Moreover, “every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.”  [Citation.]’  [Citation.]  A construction rendering statutory language surplusage ‘ “is to be avoided.” ’  [Citations.]  [¶] To determine the Legislature's intent, the court looks first to the words of the statute.  [Citation.]  However, the legislative purpose will not be ‘sacrificed to a literal construction of any part of the act.’  [Citation.]  The language of a statute ‘ “ ‘should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ ”  [Citations.]'  [Citation.]”  (Id., pp. 484–485, 208 Cal.Rptr. 724, 691 P.2d 272.)

In enacting a statute, the Legislature is capable of specifying whether a remedy is to be cumulative or exclusive.   This is borne out by provisions of the Labor Code which state with certain exceptions, the workers' compensation law is an employee's exclusive remedy for work-related injuries.   (Lab.Code, §§ 3600, 3601;  Williams v. Schwartz (1976) 61 Cal.App.3d 628, 631, 131 Cal.Rptr. 200.)

Contrasted therewith is Food and Agricultural Code section 55437, which provides:  “The rights, remedies, and penalties which are provided for in this chapter are in addition to any other rights, remedies, or penalties which are provided for by law, ․”  The Legislature thereby created a cumulative administrative remedy added to a grower's common law right to bring an action against a processor of farm products for breach of contract.  (McKee v. Bell–Carter Olive Co. (1986) 186 Cal.App.3d 1230, 1246, 231 Cal.Rptr. 304.)

(1) California cumulative remedy doctrine.

 As a general rule under California law, where a new right is created by statute and a statutory remedy for its infringement is provided, the statutory remedy is exclusive.  (Palo Alto–Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121, 131, 135 Cal.Rptr. 192;  Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110, 112, 180 P.2d 321.)   However, where a statutory remedy is provided for the enforcement of a pre-existing right, the newer remedy is generally considered only cumulative, and the older remedy may be pursued at the plaintiff's election.  (Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736, 747, 13 Cal.Rptr. 201, 361 P.2d 921;  3 Witkin, Cal. Procedure (3d. ed. 1985) Actions §§ 7–9, pp. 38–40.)

Mindful of these principles, we examine the pertinent code sections.

e. Section 12993 provides FEHA shares the field with other state law.

 FEHA section 12993, added in 1980, deals with the continuation of other laws relating to discrimination.   Subdivision (a), thereof states:  “The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof.   Nothing contained in this part [5] shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.”  (Italics added.)   It is axiomatic the law of this state includes the common law as well as the Constitution and statutes.   (Code Civ.Proc., §§ 1895, 1897, 1899;  Victory Oil Co. v. Hancock Oil Co. (1954) 125 Cal.App.2d 222, 229, 270 P.2d 604.)

Kliger argues, however, that the term “repeal” is used only in connection with statutes;  thus, while the FEHA did not repeal any statutory law, it in fact superseded existing common law rights.   The contention lacks merit.   Courts customarily use the term “repeal” in referring to the common law.  (See e.g. Weaver v. Bank of America (1963) 59 Cal.2d 428, 437, 30 Cal.Rptr. 4, 380 P.2d 644;  Baer v. Associated Life Ins. Co. (1988) 202 Cal.App.3d 117, 124, 248 Cal.Rptr. 236;  Frost v. Geernaert (1988) 200 Cal.App.3d 1104, 1108, 246 Cal. Rptr. 440;  White v. Church (1986) 185 Cal.App.3d 627, 631, 231 Cal.Rptr. 565;  Valdes v. Cory (1983) 139 Cal.App.3d 773, 780, 189 Cal.Rptr. 212.)   Thus, section 12993, subdivision (a), reflects the FEHA did not repeal either the statutory law or any common law protections.

As set forth ante, section 12993, subdivision (a), provides it does not repeal any other laws relating to discrimination.   The usual tort and contract theories plead by a plaintiff are not per se laws against discrimination.   Such common law theories are nonetheless a standard part of a plaintiff's arsenal in a discrimination case.   Section 12993, subdivision (a), by providing the FEHA does not repeal any other state anti-discrimination law, indicates the FEHA did not derogate an employee's common law rights.

Subdivision (c) of section 12993 declares the Legislature's intent to preempt local laws in the field.   It clearly states:  “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.”  (Italics added.) ⁶  The legislation of cities and counties and other state political subdivisions are thus preempted by the FEHA.   The Legislature's expressed intent is “to occupy the field of regulation of discrimination in employment” (§ 12993, subd. (c)), exclusive of local regulation.   Were the FEHA fully occupying the field, it would have been unnecessary to specify that local laws were being preempted, and the italicized portion would be mere surplusage.⁷

f. Prior holdings construing section 12993 analyzed in Froyd v. Cook (E.D.Cal.1988) 681 F.Supp. 669.

In Ficalora v. Lockheed Corp. (1987) 193 Cal.App.3d 489, 491, 238 Cal.Rptr. 360, the trial court granted summary judgment for a private employer in an action by an employee who claimed she was discharged in retaliation for having challenged the employer's sex discrimination practices.   The Ficalora court affirmed, holding that “[e]ven if a common law cause of action existed before retaliation was identified in the [FEHA] as an unlawful employment practice, the Legislature has made clear its intent to ‘occupy the field of regulation of discrimination in employment’ by virtue of the FEHA.  (§ 12993, subd. (c).)”  (Id., at p. 492, 238 Cal.Rptr. 360.)   The Ficalora court gave no recognition to the limiting language set forth in said subdivision.   (See also Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1478, 249 Cal.Rptr. 578.)

The same section 12993, subdivision (c), is the basis of a similar statement in Robinson v. Hewlett–Packard Corp. (1986) 183 Cal.App.3d 1108, 1124, 228 Cal.Rptr. 591.   That case dealt with allegations of racial as contrasted with sexual discrimination.   The court therein held “[t]he Legislature has expressly declared an intent to occupy the field of racial discrimination in employment.”  (Ibid.) ⁸

The federal case of Froyd v. Cook, supra, 681 F.Supp. 669, was the first case to give consideration to section 12993, subdivision (c)'s language addressing local laws.   The court concluded the Ficalora and Robinson courts were in error based on “relevant California precedent concerning the construction of remedial statutes․”  (Froyd v. Cook, supra, 681 F.Supp. at p. 672.)   We agree with its holding in that regard.

In its analysis, the Froyd court determined claims similar to appellants' here, but involving a public employee, would constitute a common law cause of action for wrongful discharge in contravention of California's public policy against sex discrimination, unless “displaced” by the FEHA.   Froyd observed that section 12993, subdivision (c), “makes clear the legislature's intent to preempt local ordinances.”  (Id., at p. 674.)

With respect to section 12993, subdivision (a), providing the FEHA does not repeal “any other law of this state” (id., at p. 673), Froyd found the “statute is silent, ․, on its relationship to common law claims.”  (Id., at p. 674.)  Froyd posited this silence could “be construed as a sign of legislative intent to displace nonstatutory rights.”  (Ibid.)  However, Froyd then stated “it is equally reasonable to argue that the legislature's specific preemption of local ordinances suggests that the common law causes of action were not affected by FEHA.”  (Ibid.)

Froyd found the resolution of legislative intent unnecessary, relying instead on “California's doctrine of cumulative remedies.”  (Ibid.)  We believe Froyd needlessly limited section 12993, subdivision (a), because as discussed ante, California law includes the common law.  (Code Civ.Proc., §§ 1895, 1899.)

Froyd reasoned that because prior to the adoption of the FEHA, California law prohibited gender-based employment discrimination and also protected public employees who properly complained of the conditions of their employment, the FEHA was a cumulative remedy that did not displace a plaintiff's right to sue for wrongful discharge.  (Id., at pp. 673–677.) ⁹

g. Broad interpretation of section 12993 comports with legislative intent.

Even where a statute is is clear on its face, courts will deviate from its plain meaning when giving a statute its literal effect would thwart the will of the Legislature and would result in an absurdity.  (Brown v. Superior Court, supra, 37 Cal.3d at p. 485, 208 Cal.Rptr. 724, 691 P.2d 272.)

Our Supreme Court recognizes an investigation by the department is a lengthy process, making it virtually impossible for an accusation to issue in an employment case before 150 days have passed.   Because of the large volume of cases handled by the department which operates under limited resources, the department has an evident policy of permitting any complainant to sue in court who wishes to do so.  (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at pp. 1401–1402, 241 Cal.Rptr. 67, 743 P.2d 1323;  see also Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 218, fn. 8, 185 Cal.Rptr. 270, 649 P.2d 912 [right-to-sue letters are the rule, not the exception].)

Amici curiae in support of appellants, in an exhibit to their brief, have provided a statistical summary of the disposition of the department's employment cases over a five-year period.   In the 1983–84 fiscal year, 7,177 employment cases were filed, 7,351 cases were closed, 85 cases reached the accusation stage, and only 2 cases resulted in a hearing.   Four years later, in the 1987–88 fiscal year, when 8,351 employment cases were filed, 8,029 cases were closed, 86 cases reached the accusation stage, and 17 cases went to a hearing.

In view of these figures, we can safely say the administrative remedy has been largely ineffectual.   The department's modest capacity undermines Kliger's argument the Legislature intended all victims of employment discrimination to proceed administratively.

We are mindful of the directive in section 12993, subdivision (a), that the FEHA be liberally construed to accomplish its purposes.   A broad construction of the section leads to the conclusion the remedy is cumulative rather than preemptive.   This recognition reinforces the Legislature's declaration that sex discrimination contravenes public policy and is an unlawful employment practice.  (§§ 12920, 12940.)

A contrary interpretation, namely, that the FEHA occupies the field, would frustrate the Legislature's express purpose of affording realistic remedies to aggrieved individuals.   Because the department has limited resources and the complaints are many, forcing all victims of discrimination into the administrative scheme would diminish, rather than enhance their remedies.

To sum up thus far, where a new right is created by statute and a statutory remedy for its infringement is provided, the statutory remedy ordinarily is exclusive.  (Palo Alto–Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist., supra, 65 Cal.App.3d at p. 131, 135 Cal.Rptr. 192;  Orloff v. Los Angeles Turf Club, supra, 30 Cal.2d at p. 112, 180 P.2d 321.)   The FEHA is an exception to that general rule.   While the FEHA conferred certain new rights and created new remedies, it did not purport to occupy the field.   Rather, the Legislature enacted the FEHA to equip victims of discrimination with an additional remedy.  (§§ 12993, 12920.)   Consequently, the FEHA does not displace any causes of action and remedies which are otherwise available.

2. California public policy prohibits gender-based employment discrimination.

 Gender-based employment discrimination, whether public or private, is violative of the public policy of this state, as originally adopted by the People and expressed in California Constitution, former article XX, section 18.  (Matter of Maguire (1881) 57 Cal. 604, 608–609;  State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at p. 432, 217 Cal.Rptr. 16, 703 P.2d 354.)

Surprisingly ahead of the times, the forerunner of article 1, section 8, former article XX, section 18, adopted by the People on May 7, 1879, provided:  “No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession.”  (Italics added.)   Two years after the adoption of this constitutional guarantee, it was applied by our Supreme Court in Matter of Maguire, supra, at pages 604–609, to invalidate a San Francisco ordinance prohibiting the employment of females in dance-cellars.

Article XX, section 18, was readopted by the People in only a slightly amended form in a November 1970 general election to read:  “A person may not be disqualified because of sex, from entering or pursuing a lawful business, vocation, or profession.”

Thereafter, the California Constitution Revision Commission (Commission), in a 1971 report on a proposed revision of article 1 dealing with “Declaration of Rights,” drafted an expanded article XX, section 18, to become article 1, section 8.  (Proposed Revision of the California Constitution, Part 5 (January 1971) Report of Commission to Joint Rules Committee, § 28, p. 30.)   The proposal read:  “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”  (Ibid.)  As discussed infra, the proposal was adopted exactly as drafted and now appears as article 1, section 8.

The Commission commented:  “This proposed new Section prohibits discrimination in economic opportunities for reasons of sex or race.   The Commission believes that adoption of this provision will provide a clear statement of legal policy responsive to traditional demands of equality of opportunity.”  (Ibid.) ¹⁰  In our determination of the intent of such revisions, the Commission's official report is entitled to great weight.  (People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 277, 124 Cal.Rptr. 47, 539 P.2d 807;  District Election etc. Committee v. O'Connor (1978) 78 Cal.App.3d 261, 270, 144 Cal.Rptr. 442.¹¹

The Commission's proposed general revision of article I, section 8, was included in Assembly Constitutional Amendment No. 60 (Stats.1974, Res. ch. 90, p. 3740), and was placed before the electorate exactly as drafted as part of Proposition 7.   Proposition 7 was approved in the general election of November 5, 1974, and thus former article XX, section 18 was amended and renumbered to become present article I, section 8.¹²

The parties before us differ as to the reach of article I, section 8.   While its prohibitory language is general, Kliger argues that implicit in the provision is a limitation it only precludes state discriminatory action.

Bolstering Kliger's position is the language in Sail'er Inn, Inc., which referred to the forerunner to article I, section 8, and reads:  “Section 18 constitutes a restraint upon the law-making power of the state, and legislative enactments contrary to its provisions are void.”  (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 8, 95 Cal.Rptr. 329, 485 P.2d 529.)   Each of the cases cited by the parties discussing these provisions involves state action.  (See e.g. Matter of Maguire, supra, 57 Cal. 604;  Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529;  Froyd v. Cook, supra, 681 F.Supp. 669.)   However, no case has held article I, section 8, applies solely to state action.

Even assuming article I, section 8, has been construed in the past only to limit state action, in Sail'er Inn, Inc., the California Supreme Court recognized changing circumstances and mores may infuse the state Constitution with fresh meaning.   The court observed:  “Laws which disable women from full participation in the political, business and economic arenas are often characterized as ‘protective’ and beneficial․  The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.”  (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 20, 95 Cal.Rptr. 329, 485 P.2d 529.)   The court proceeded to hold that sexual classifications were to be subjected to strict scrutiny, particularly when those classifications relate to a fundamental interest such as employment.   (Ibid.)

The acceptance by the California electorate in 1974 of article I, section 8, is a further expression by the public of its hostility to employment discrimination, without regard to the subtleties of state action.  Article I, section 8, is “a clear statement of legal policy responsive to traditional demands of equality of opportunity[,]” as contemplated by the Commission.   (Proposed Revision of the California Constitution, supra, at p. 30.)

a. Cause of action available in tortious wrongful discharge in contravention of public policy.

 Labor Code section 2922 provides in relevant part:  “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”   This presumption may be superseded by a contract, express or implied, limiting the employer's right to discharge the employee.  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665, 254 Cal.Rptr. 211, 765 P.2d 373.)   Irrespective of any employment contract, the employer's right to discharge an “at will” employee is also subject to limits imposed by public policy.  (Ibid.)

 This principle was first stated in Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 344 P.2d 25, wherein the plaintiff, a union business agent, alleged he was discharged for refusing to testify falsely at the behest of his employer to a state legislative committee.   Reversing the trial court, Petermann found the plaintiff was an employee at-will, but proclaimed “the right to discharge an employee under such a contract may be limited by statute [citations] or by considerations of public policy.  [¶]․ [¶] ․ ‘[W]atever contravenes ․ any established interests of society is against public policy.’  [¶]․  It would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute.”  (Id., at pp. 188–189, 344 P.2d 25;  see Glenn v. Clearman's Golden Cock Inn (1961) 192 Cal.App.2d 793, 13 Cal.Rptr. 769;  Wetherton v. Growers Farm Labor Assn. (1969) 275 Cal.App.2d 168, 79 Cal.Rptr. 543;  Montalvo v. Zamora (1970) 7 Cal.App.3d 69, 86 Cal.Rptr. 401.)

In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, the plaintiff alleged he had been discharged for his refusal to participate in an illegal scheme to fix retail gasoline prices.  Tameny, in holding an employer cannot condition employment upon required participation in unlawful conduct by the employee, reiterated that a common law tort action lies for wrongful discharge in contravention of public policy.  (Id., at p. 178, 164 Cal.Rptr. 839, 610 P.2d 1330.)  Tameny required the public policy basis for the cause of action to be “firmly established”, “fundamental” and “substantial.”  (Id., at pp. 172, 176, 177, 164 Cal.Rptr. 839, 610 P.2d 1330;  Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 670, fn. 11, 254 Cal.Rptr. 211, 765 P.2d 373.)

Foley left intact the tort of wrongful discharge based on a breach of public policy, but left unresolved whether the requisite policy must be based on a statute or constitutional provision, or whether nonlegislative sources may provide the basis for such a claim.  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 669, 254 Cal.Rptr. 211, 765 P.2d 373.)   However, even when a legislative source is invoked, a court must determine “whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee [because] many statutes simply regulate conduct between private individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns․  [D]isparagement of a basic public policy must be alleged, ․”  (Ibid.)

A public policy is implicated where the “public interest at stake [i]s invariably one which could not properly be circumvented by agreement of the parties.”  (Id., at p. 670, fn. 12, 254 Cal.Rptr. 211, 765 P.2d 373.)   In Foley, an employee informed his employer that his supervisor was under investigation by the Federal Bureau of Investigation for embezzlement.   Foley held the employee could not state a cause of action under Petermann/Tameny because an employee's duty to disclose information to an employer serves only the private interest of the employer;  nothing in California's public policy would have barred the parties from agreeing the employee was not to inform the employer of any adverse information the employee learned about a fellow employee's background.  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at pp. 670–671, fn. 12, 254 Cal.Rptr. 211, 765 P.2d 373.)

Here, Rojo and Maloney could not agree validly with Kliger to exempt their employment relationship from California's fundamental anti-discrimination policy as reflected in the state Constitution (id., at p. 670, fn. 12, 254 Cal.Rptr. 211, 765 P.2d 373);  a public policy is therefore implicated, giving rise to a cause of action under the Petermann/Tameny/Foley doctrine.   Accordingly, appellants are entitled to leave to amend to attempt to plead wrongful discharge in contravention of public policy.

3. Further common law alternatives to relief under the FEHA.

 One who has been victimized by employment discrimination may invoke any applicable theory of recovery based on a given set of facts arising in the employment context, just like any other plaintiff.   The same facts which give rise to a discrimination claim may also give rise to other theories of recovery.   Here, for example, appellants seek leave to amend to plead causes of action for, inter alia, breach of an express or implied-in-fact employment contract, breach of the implied covenant of good faith and fair dealing, assault and battery, false imprisonment, and negligent and intentional infliction of emotional distress.¹³

4. Exhaustion of administrative remedies doctrine.

 Kliger invoked the doctrine of exhaustion of administrative remedies to bar appellants' suit.   Accepting Kliger's argument on his motion for summary judgment, the trial court ruled:  “Failure of a plaintiff to comply with the filing requirements in a sex discrimination case is—prerequisite to a sex discrimination case.”

In brief, “the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.”  (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292, 109 P.2d 942.)   Although Abelleira is frequently cited for the proposition that the exhaustion doctrine is a jurisdictional prerequisite, later courts have stated “Abelleira makes it abundantly clear that the exhaustion doctrine does not implicate subject matter jurisdiction but rather is a ‘procedural prerequisite’ ‘originally devised for convenience and efficiency’ and now ‘followed under the doctrine of stare decisis, ․’ ”  (Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222, 239 Cal.Rptr. 470;  accord Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 260, 251 Cal.Rptr. 507.)

 The mere availability of an administrative remedy does not compel the conclusion that an aggrieved party must exhaust such remedy prior to filing suit.   The exhaustion doctrine has no application to this particular statutory scheme because as discussed ante, the Legislature enacted the FEHA as a cumulative remedy.  (§ 12993, subds. (a), (c).)   Accordingly, other available remedies may be pursued at the plaintiff's election.  (McKee v. Bell–Carter Olive Co., supra, 186 Cal.App.3d at p. 1246, 231 Cal.Rptr. 304.) ¹⁴

In the event a party files a claim with the department and thereby invokes the statutory scheme, such person must obtain a right-to-sue letter before pursuing a superior court action.  (§ 12965, subd. (b);  Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at pp. 213–214, 185 Cal.Rptr. 270, 649 P.2d 912.)   That requirement is inapplicable here because appellants did not avail themselves of the administrative remedy in the first instance.¹⁵

 However, the FEHA administrative remedy must be pursued with respect to the rights enumerated therein.   Accordingly, appellants cannot state a cause of action under section 12940, as they did not exhaust their administrative remedy in that regard.

CONCLUSION

The FEHA displaced only local laws regulating discrimination in employment and housing.  (§ 12993, subd. (c).)  The FEHA shares the field with other state law so as to expand the remedies available to victims of discrimination.  (§ 12993, subd. (a).)  Thus, a victim of sex discrimination in the workplace is not required to file a complaint with the department as a prerequisite to pursuing a civil action.   The administrative remedy is but one option available to such a plaintiff.   Alternatively, a plaintiff may directly file suit and invoke any applicable theory of recovery independent of the FEHA.

Private employment discrimination in California is a breach of the public policy expressed in article I, section 8, and gives rise to a claim under the Petermann/Tameny/Foley doctrine.   In adopting the FEHA, the Legislature recognized this public policy.  (§ 12920.)

Because appellants were not required to pursue their optional administrative remedy prior to bringing a civil action against Kliger, the grant of summary judgment was error.   Appellants are entitled to leave to amend to plead causes of action independent of the FEHA.

DISPOSITION

The judgment is reversed.   Appellants to recover costs on appeal.

FOOTNOTES

1.   Sexual harassment is a form of sex discrimination.  (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49.)

2.   Unless otherwise indicated, all subsequent constitutional references are to the California Constitution and all statutory references are to the Government Code.

3.   We granted Kliger's petition for rehearing in order to receive input from Merchants and Manufacturers Association, Equal Rights Advocates, and National Lawyers Guild, San Francisco Chapter, as amici curiae.   The California Fair Employment and Housing Commission also contemplated participating in this rehearing but later declined to do so.

4.   According to appellants' opening brief, after summary judgment was granted, they took the motion for leave to amend their complaint off calendar.   It does not appear the trial court had the proposed first amended complaint before it at the time it ruled on the summary judgment motion.   Nonetheless, the grant of summary judgment at that juncture was error.Kliger's motion for summary judgment was in effect one for judgment on the pleadings, based on appellants' failure to exhaust the administrative remedy.   Unless an original complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested.  (King v. Mortimer (1948) 83 Cal.App.2d 153, 158, 188 P.2d 502;  Code Civ.Proc., § 472c.)   Because appellants' initial complaint did not show on its face it was incapable of properly being amended, dismissal at this stage was premature.

5.   “[T]his part” refers to Part 2.8, which consists of the FEHA, § 12900 et seq.

6.   Civil Code section 51, the Unruh Civil Rights Act (Stats. 1959, ch. 1866, § 1, p. 4424) presently provides in relevant part:  “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

7.   Similarly, section 12993's forerunner, former Labor Code section 1432, as amended by Statutes 1970, chapter 1508, section 5, page 2996, provided:  “The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof.   Nothing contained in this act [the FEPA] 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, or sex.  [¶] Nothing contained in this act shall be deemed to repeal or affect the provisions of any ordinance relating to such discrimination in effect in any city, city and county, or county at the time this act becomes effective, insofar as proceedings theretofore commenced under such ordinance or ordinances remain pending and undetermined.   The respective administrative bodies then vested with the power and authority to enforce such ordinance or ordinances shall continue to have such power and authority, with no ouster or impairment of jurisdiction, until such pending proceedings are completed, but in no event beyond one year after the effective date of this act.”Thus, section 12993's predecessor similarly declared the FEPA was to share the field with other state law and was to preempt local anti-discrimination ordinances which had been enacted by various cities and counties.   The exception in former Labor Code section 1432 for proceedings which were pending when the FEPA took effect underscores that the FEPA was to displace only local law.

8.   For other overbroad statements in this regard, see e.g. Stache v. International Union of Bricklayers (9th Cir.1988) 852 F.2d 1231, 1233;  Carter v. Smith Food King (9th Cir.1985) 765 F.2d 916, 921;  Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890, 220 Cal.Rptr. 684.Once a court erroneously concludes the FEHA occupies the field of employment discrimination in all respects, an employee inevitably would be required to exhaust the administrative remedy pursuant to the general rule.   Such was the case here.

9.   To resist the cumulative nature of the FEHA remedy, Kliger relies, inter alia, on a passage in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490, 156 Cal.Rptr. 14, 595 P.2d 592, wherein our high court noted “the prohibitions on employment discrimination contained in the FEPA are in no sense declaratory of preexisting common law doctrine but rather include areas and subject matters of legislative innovation, creating new limitations on an employer's right to hire, promote or discharge its employees.”  (Italics added.)However, the point thereby made in the Gay Law Students Assn. case was that the FEPA did not bar all forms of arbitrary discrimination, but was a remedy limited in scope to the categories specifically enumerated in the statute.  (Ibid.)  The passage should not be construed as a blanket assertion that no protections existed against employment discrimination outside the statute.   See e.g. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216, which “recognized a right independent of the FEPA to seek emotional-distress and punitive damages when overt racial malice is the motive for a discharge.”  (Pp. 497–498, and fn. 2, 500, fn. 7, 86 Cal.Rptr. 88, 468 P.2d 216.)  (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 220, 185 Cal.Rptr. 270, 649 P.2d 912.)   See also Bass v. Great Western Sav. & Loan Assn. (1976) 58 Cal.App.3d 770, 772–773, 130 Cal.Rptr. 123, holding that irrespective of the FEPA, an employee receiving less than the wage to which he or she is entitled by reason of sex discrimination could directly file a civil suit pursuant to Labor Code section 1197.5.

10.   We have taken judicial notice of various legislative materials in our quest to interpret article I, section 8.  (Evid.Code, §§ 452, subd. (c), 459.)

11.   A staff analyst's report for the Assembly Committee on Constitutional Amendments in commenting on the Commission's proposal stated, the proposal “[r]etains existing Section 18 of Article XX without substantive change.   Transfers it to Article I [Declaration of Rights] where subject matter is deemed more appropriate.”However, the staff analyst's report failed to point out the substantive inclusion of “employment,” and the broadened reach of the section from only sex to also “race, creed, color, or national or ethnic origin.”  (Proposed Revision of the California Constitution, supra, at p. 30.)

12.   Proposition 7 also added section 7 of article I, to provide:  “(a) A person may not be ․ denied equal protection of the laws;  ․”   In view of the fact that article I, section 7 of the California Constitution, and the Fourteenth Amendment of the United States Constitution, both guarantee equal protection of the laws, it is arguable unless article I, section 8 is broader and bars private employment discrimination, it is pure surplusage.

13.   Federal courts have at least appreciated that the FEHA does not preempt common law claims which are not based on discrimination.  (see e.g. Harlan v. Sohio Petroleum Co. (N.D.Cal.1988) 677 F.Supp. 1021, 1031;  Hudson v. Moore Business Forms, Inc. (N.D.Cal.1985) 609 F.Supp. 467, 474–475, vacated in part, on other grounds, in (9th Cir.1987) 827 F.2d 450, superseded by (9th Cir.1987) 836 F.2d 1156.)In Salgado v. Atlantic Richfield Co. (9th Cir.1987) 823 F.2d 1322, 1327, a summary judgment was reversed and the district court was directed on remand to determine whether the plaintiff's claims were based solely on age discrimination, or whether the plaintiff had independent common law claims.   Similarly, Hudson v. Moore Business Forms, Inc., supra, at pages 474–475, held the plaintiff's claims for breach of employment contract and breach of the implied covenant of good faith and fair dealing were preempted by the FEHA only to the extent they were based upon a claim of sex discrimination.

14.   Even assuming the FEHA requires exhaustion, in view of the department's inadequate resources, there is a question as to whether the futility exception to the exhaustion rule would relieve discrimination plaintiffs of such a requirement.   It is recognized that “ ‘ “[p]ulling away from requirement of exhaustion are ․ such factors as ․, the futility of exhaustion, ․” ’ ”  (McKee v. Bell–Carter Olive Co., supra, 186 Cal.App.3d at p. 1245, 231 Cal.Rptr. 304.)

15.   Compare Robinson v. Department of Fair Employment & Housing (1987) 192 Cal.App.3d 1414, 1415–1416, 239 Cal.Rptr. 908, wherein a dental assistant filed a sex discrimination complaint against her employer with the department, which filed an accusation with the commission.  Robinson held the trial court erred by intervening and issuing a writ of mandate directing the withdrawal of the accusation because the employer was required first to interpose his defense administratively.

KLEIN, Presiding Justice.

DANIELSON and ARABIAN, JJ., concur.