GAY LAW STUDENTS ASSOCIATION v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY (1977)

Appellants styling themselves members of the gay community, appeal from an adverse judgment following the sustaining of a demurrer without leave to amend to their complaint for injunctive relief against defendant-respondent Pacific Telephone and Telegraph Company (hereafter referred to as PT&T) and denial of their petition for writ of mandate against defendant-respondent Fair Employment Practice Commission. Appellants sought a declaratory judgment that PT&T's alleged policy of employment discrimination against persons because of their sexual orientation be declared illegal and void under California law and a writ of mandate commanding the Fair Employment Practice Commission (hereafter also referred to as FEPC) to assume jurisdiction over appellants' claims that they have been discriminated against by PT&T because of their sexual orientation.

This action was brought to challenge the alleged policy of PT&T of discriminating in their employment process on the basis of sexual preference or orientation and to challenge the Fair Employment Practice Commission's determination that it has no jurisdiction to adjudicate claims of discrimination based on sexual orientation under the Fair Employment Practice Act (hereafter also referred to as F.E.P. Act). Appellants include four individuals who claim to have been either terminated or refused employment by PT&T and other private employers because of their sexual orientation. Appellant Gay Law Students Association is a group of students at Hastings College of Law and Boalt Hall who are organized to improve the status of homosexuals by combatting discrimination against them. Appellant Society for Individual Rights is a California corporation organized to promote equal treatment for homosexuals in all areas, including employment and government services.

Respondent FEPC, in proceedings before it, considered and rejected the claims of the four individual appellants on the ground that it had no jurisdiction under the F.E.P. Act (Lab.Code, § 1410, et seq.) to handle claims of discrimination by private employers based on sexual orientation. Respondent PT&T demurred to appellant's complaint on the ground, inter alia, that even if the allegations in the complaint were true, discrimination by private employers based on sexual preference is not prohibited by California law.

Appellants' first contention is that the F.E.P. Act, passed by the Legislature in 1959, prohibits all discrimination in the employment process on any basis other than that of a bona fide occupational qualification. The thrust of this argument is that despite the fact that the Act specifically enumerates those bases for discrimination which are deemed to be unlawful practices,¹ such enumeration is merely illustrative rather than restrictive. In support of this argument, appellants analogize the F.E.P. Act to the Unruh Civil Rights Act (Civ.Code, § 51) which forbids discrimination in providing ‘accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.’ Appellants point out that this Act has been interpreted to outlaw all forms of arbitrary discrimination, not merely those enumerated in the Act. (See In re Cox (1970) 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992, discussed below.)

In the construction and interpretation of any statute, the Legislature's intention shall be pursued, if possible. (Code Civ.Proc., § 1859; McKesson v. Lowery (1959) 51 Cal.2d 660, 662, 335 P.2d 662.) The legislative intent can be ascertained from the language used, as well as from matters such as context, the object in view, the evils to be remedied, the history of the times, other legislation, and public policy. (Jordt v. State Board of Education (1939) 35 Cal.App.2d 591, 594, 96 P.2d 809; Glashoff v. Glashoff (1943) 57 Cal.App.2d 108, 111, 134 P.2d 316.) These factors convince us that we cannot conclude that the Legislature intended to outlaw all employment discrimination not connected with bona fide job qualifications.

Initially, it is clear that the language of the F.E.P. Act is plainly inconsistent with the interpretation urged by appellants. The Act declares the Legislature's purpose as safeguarding the right of all persons to seek, obtain and hold employment without discrimination as to specifically enumerated bases. (Lab.Code, § 1411.)² Repeatedly, throughout the Act, the Legislature has specifically listed those bases of discrimination in employment which it considers to be unlawful as contrary to the public policy of this state. (See §§ 1414, 1419, 1420(a)–1420(d), 1432.) Not once does the Act make a declaration indicating that its purpose is broader than to protect those classes of persons which are specifically enumerated. In every instance where appellants quote from the seemingly broad policy language of the Act, an immediate reference to these specifically enumerated classes can be found. Discrimination ‘unless based upon a bona fide [job] qualification’ is made an unlawful practice only where it is done because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition or sex. (§ 1420.) Thus, the language of the statute on its face provides no support whatever for the position that every form of job discrimination, other than on the basis of bona fide job qualifications, is prohibited. If such were the case, the Legislature could have easily said so and saved itself a substantial amount of superfluous verbiage.

Appellants hypothesize an analogy between the F.E.P. Act and the Unruh Civil Rights Act. In In re Cox, supra, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992, the California Supreme Court declared that the Civil Rights Act, although invoked primarily by persons alleging racial discrimination, was intended by the Legislature ‘to prohibit all arbitrary discrimination by business establishments.’ (Id. at p. 216, 90 Cal.Rptr. at p. 31, 474 P.2d at p. 999.) The court further noted that the listing of particular bases of discrimination in the Act was illustrative rather than restrictive, thereby making the arbitrary exclusion of any potential customer from a business establishment unlawful. (Id. at p. 216, 90 Cal.Rptr. 24, 474 P.2d 992.) Appellants observe a ‘striking similarity’ between the Unruh Act and the F.E.P. Act, noting that both speak of ‘civil rights' and both were enacted in the same year. However, in In re Cox, supra, the court made it clear that the Unruh Act was an articulation of a longstanding common law doctrine regarding business establishments which serve the public: ‘The common law attached to these enterprises ‘certain obligations, including—at various stages of doctrinal development—the duty to serve all customers on reasonable terms without discrimination and the duty to provide the kind of product or service reasonably to be expected from their economic role.’' (Id. at p. 212, 90 Cal.Rptr. at p. 28, 474 P.2d at p. 996; emphasis added.) The court further noted that, prior to the enactment of the Unruh Act, it had already interpreted the Act's predecessor to outlaw all arbitrary discrimination in public accommodations. (See Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 227 P.2d 449; Stoumen v. Reilly (1951) 37 Cal.2d 713, 234 P.2d 969.) It concluded that, since the Legislature must have been aware of these decisions, its enumeration of specific bases of discrimination in the Unruh Act was illustrative rather than restrictive. (In re Cox, supra, 3 Cal.3d at pp. 215–216, 90 Cal.Rptr. 24, 474 P.2d 992.)

But whereas the Unruh Act was a development or expression of the common law doctrine, the Fair Employment Practice Act was a direct encroachment into common law principles regarding employer's rights. The common law, strongly rooted in notions of ‘freedom to contract,’ provided generally that ‘[i]t is the right of every man to engage to work for or to deal with, or to refuse to work for or to deal with any man or class of men as he sees fit, whatever his motive or whatever the resulting injury, without being held in any way accountable therefor.’ (Overland P. Co. v. Union L. Co. (1922) 57 Cal.App. 366, 370, 207 P. 412, 414.) Courts were firm in the belief that ‘an employer's right to employ and discharge whom he pleases, in the absence of any statutory or contractual provision is unquestioned.’ (United Electrical Radio & M. Wrkrs. v. General Elec. Co. (D.C.D.C.1954) 127 F.Supp. 934, 937 [cert. den. (1956) 352 U.S. 872, 77 S.Ct. 95, 1 L.Ed.2d 76]; see Lab.Code, § 2922.) Undoubtedly then, the Legislature's enactment of the F.E.P. Act broke new ground in the field of employment practices, creating certain limitations on an employer's right to hire, retain or discharge his employees. (See § 1411.)

It follows, therefore, that the rationale of In re Cox, supra, cannot be utilized with respect to the F.E.P. Act: The Unruh Act enumerated certain bases of discrimination where all arbitrary discrimination had already been prohibited by prior statutory and case law; therefore, it was reasonable to conclude, as the Cox court did, that the Legislature intended these bases to be illustrative rather than restrictive. On the contrary, the F.E.P. Act carved out for the first time bases for discrimination in employment which were considered to be contrary to public policy and therefore prohibited.³ Not having any prior case law or statutory precedent to rely on, it must be assumed that our legislators were cognizant of the fact that they were establishing new prohibitions rather than emphasizing old ones. Thus it is highly unlikely that they intended the enumerations to be illustrative rather than restrictive. Proof of this is borne out by the fact that the Legislature three times subsequently, carefully amended the act to include in the enumerated categories, ‘sex,’ ‘physical handicap,’ and ‘medical condition.’

Appellants attempt to counter these facts by pointing out that the Unruh Act itself was amended to include ‘sex’ among the enumerated categories, even after Cox had interpreted it to outlaw all forms of arbitrary discrimination. But the Legislature was well aware that discrimination in business establishments because of ‘sex’ was already prohibited when it added that classification to the Unruh Act, and thus knew that the addition of the term was technically superfluous and instead served an illustrative function. By contrast, there is no California case or other authority which has interpreted the F.E.P. Act to prohibit any forms of employment discrimination other than those enumerated in the act. Indeed, the FEPC was held to be without authority to adjudicate claims of ‘sex’ discrimination before that category was added to the Act. (Donohue v. Shoe Corporation of America (C.D.Cal.1972) 337 F.Supp. 1357, 1359.)

Determinative of the subject question, however, is the fact that the Legislature only last year had before it a bill to amend the Act to include ‘sexual orientation’ as an enumerated base of prohibited discrimination and that it rejected such an amendment. (Assembly Journal, Legislative Counsel's Digest (1975).) If the Legislature fails to make changes in a given statute in a particular respect when that subject is before it while changes are made in other respects, such failure indicates an intention to leave the law unchanged in that respect. (Kusior v. Silver (1960) 54 Cal.2d 603, 618, 7 Cal.Rptr. 129, 354 P.2d 657.) Here we have not only a failure, but an express refusal to amend the F.E.P. Act to include ‘sexual orientation’ among prohibited forms of discrimination while amendments to include age, sex, physical handicap and medical condition were all passed within recent years. It is clear that the Legislature has affirmatively determined not to establish ‘sexual orientation’ as a prohibited form of discrimination. We note further that Title VII of the Civil Rights Act, the federal counterpart to the F.E.P. Act (42 U.S.C.A., § 2000(e) et seq.) has been interpreted by the United States Supreme Court and other federal courts to prohibit only those bases of employment discrimination enumerated in the Act. (See, e. g., Espinoza v. Farah Mfg. Co. (1973) 414 U.S. 86, 95, 94 S.Ct. 334, 38 L.Ed.2d 287; Bradington v. International Business Machines Corp. (D.Md.1973) 360 F.Supp. 845, 852, aff'd. (4th Cir. 1974) 492 F.2d 1240.)

Appellants' second major contention is that discrimination against homosexuals is discrimination on the basis of ‘sex’ within the language of the F.E.P. Act. This argument is essentially two-pronged: The first is based on the ‘disparate impact’ theory which has been applied in cases on employment discrimination under federal statutes, and the second is that homosexual discrimination is literally discrimination based on gender, since it disqualifies individuals on the basis of stereotyped characteristics of the sexes.

The ‘disparate impact’ theory is found in the case of Griggs v. Duke Power Co. (1971) 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, which held that Title VII of the Civil Rights Act prohibits ‘not only overt discrimination but also practices that are fair in form, but discriminatory in operation.’ (Id. at p. 431, 91 S.Ct. at p. 853.) Thus, an employment practice which may be neutral on its face, but whose impact results in a disproportionate exclusion of blacks or other enumerated minority groups, is prima facie violative of Title VII, unless it can be shown to be related to job performance. Appellants urge that since statistics show that in the population generally, male homosexuals significantly outnumber female homosexuals, a policy of discrimination on the basis of homosexuality constitutes unfair discrimination against men.

The Griggs doctrine has usually been applied in cases where an employment practice perpetuates prior discrimination against minorities. (See Rogers v. International Paper Company (8th Cir. 1975) 510 F.2d 1340; Head v. Timken Roller Bearing Company (6th Cir. 1973) 486 F.2d 870.) Therefore its applicability to men as a class is questionable. But assuming that Griggs were to apply, appellants have made no showing that PT&T's alleged policy of requiring employees to be heterosexual has had the purpose or effect of discriminating against persons of the male gender. (See Espinoza v. Farah Mfg. Co., supra, 414 U.S. 86, 92, 94 S.Ct. 334, 38 L.Ed.2d 287.) N0 statistics are offered as to the number of male versus female applicants hired or retained by PT&T and it does not appear that it has excluded a significant number of males in its employment practices. There is no showing of disproportionate impact upon one sex.

Appellants further contend that discrimination on the basis of homosexuality constitutes ‘sex’ discrimination in the literal sense of the word. Federal cases have already made clear that employment discrimination on the basis of sexual preference is not ‘sex’ discrimination under Title VII of the Civil Rights Act. In Smith v. Liberty Mutual Insurance Company (D.C.Cal.1975) 395 F.Supp. 1098, the court held that discrimination on the basis of affectional or sexual preference was not encompassed by the prohibition on ‘sex’ discrimination, commenting that any determination to outlaw such discrimination was within the province of Congress. (Id. at p. 1101.) Voyles v. Ralph K. Davies Medical Center (N.D.Cal.1975) 403 F.Supp. 456, came to a similar conclusion, holding that ‘situations involving transsexuals, homosexuals or bisexuals' were simply not considered by Congress. (Id. at p. 457.) Thus, the federal courts themselves have rejected the notion that the term ‘sex’ discrimination can somehow be interpreted as including discrimination against sexual preferences.

Appellants also rely on cases outlawing practices which penalize persons for marrying or associating with persons of another race (see, e. g., Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; Langford v. City of Texarkana, Arkansas (8th Cir. 1973) 478 F.2d 262), and they attempt to draw a parallel to the present situation, where males are ostensibly penalized for becoming romantically involved with other males. However, it is clear from those cases, and from the ‘massage parlor’ cases⁴ relied on by appellants, that the policy sought to be carried out there was to prohibit all barriers to free association based upon the race or the sex (in the sense of gender) of an individual. The rationale under which those cases were decided is that an employee should not be penalized for associating with members of a different race or of the opposite sex. It is apparent that a classification along the lines of sexual preference creates no barriers to association between the sexes, nor does it penalize either sex for being members of that sex.

The final answer to these, and other sex-related points raised by appellants, is simply that the Legislature has not determined that employment discrimination on the basis of sexual orientation is contrary to the public policy of the State of California. We see no reason to establish such a rule by judicial decision.

Appellants' next major argument is directed only at the FEPC. They contend that by refusing to assume jurisdiction over disputes involving homosexual discrimination, the state is denying appellants both due process and equal protection of the law as guaranteed by the United States and California Constitutions.

The argument is grounded on the contention that the right to work is a ‘fundamental right.’ (Sail'er Inn v. Kirby (1971) 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529.) What this argument fails to perceive is that the ‘right to work’ as articulated by the California courts, is the ‘right to pursue a lawful occupation’ free from arbitrary state interference. (See Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 579, 79 Cal.Rptr. 77, 456 P.2d 645; Sail'er Inn v. Kirby, supra, 5 Cal.3d at p. 17, 95 Cal.Rptr. 329, 485 P.2d 529.) It does not encompass the right to work for a particular employer, public or private. (Townsend v. County of Los Angeles (1975) 49 Cal.App.3d 263, 267, 122 Cal.Rptr. 500.) Therefore, even if the state somehow precluded appellants from working for PT&T, it would not infringe on their ‘fundamental right’ to work unless PT&T were willing to hire them. There is simply no constitutional right to work for an unwilling employer. (See Bishop v. Wood (1976) 426 U.S. 341, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684.) At any rate, it is clear that the state is in no way arbitrarily interfering with private employment of homosexuals. It has simply remained neutral. Sail'er Inn is thus inapplicable.

The next step in appellants' constitutional analysis that the FEPC is the exclusive forum available to them to secure relief from homosexual discrimination, and that denial of access to this state machinery is denial of due process. (See Boddie v. Connecticut (1970) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113.) We are unable to follow appellants' claim that the FEPC is the only avenue through which grievances regarding gay discrimination in employment may be heard. The F.E.P. Act clearly enumerates those types of discrimination which shall be regarded as unlawful employment practices and creates the FEPC to adjudicate claims that such unlawful practices are taking place. As discussed above, the F.E.P. Act is not presently applicable to homosexual discrimination. Such practices are simply not within the jurisdiction of the FEPC and thus the FEPC has no power to hear claims concerning them. It is difficult to perceive, therefore, how the FEPC may be asserted to be the only channel through which complaints of homosexual employment discrimination may be adjudicated. It simply is not such a channel at all. Appellants' position comes down to an insistence that the FEPC adjudicate claims of discrimination which plainly have not been made unlawful by the Act under which it was created. As the court said in Marshall v. Fair Employment Practice Com. (1971) 21 Cal.App.3d 680, 98 Cal.Rptr. 698, it would be absurd to interpret the F.E.P. Act as requiring the FEPC to perform investigations and provide hearings ‘on the basis of complaints that say nothing.’ (Id. at p. 684, 98 Cal.Rptr. at p. 701.)

Appellants' reliance on Boddie v. Connecticut, supra, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, is not well taken. Boddie involved the state's monopoly on the machinery of divorce: If the petitioners there wished to dissolve their marital relationship, they had no choice but to go through the state courts. By contrast, appellants herein are in no way precluded by the state from seeking private employment. The state has simply remained neutral in disputes between appellants and employers who allegedly discriminate against them because of their sexual orientation. We conclude that the refusal of the FEPC to hear appellants' claims does not deprive them of due process of law.

Appellants further contend that the state, by refusing to hear complaints of discrimination against homosexuals, while adjudicating claims of discrimination against women, blacks, etc., has denied them equal protection of the law. This claim is founded upon two premises: (1) That the right to work involves a ‘fundamental right,’ and (2) that homosexuals constitute a suspect class, or at least a ‘suspicious one.’ Applying these premises, appellants conclude that the strict scrutiny test must apply to the state's refusal to hear discrimination claims of homosexuals, and that the state's action fails to pass this test.

We have already discussed and disposed of appellants' claim that their right to work for a private employer is a fundamental constitutional right. Therefore we turn to the issue of whether or not homosexuals constitute a ‘suspect class.’ Although appellants forcefully point out that intolerance of, and discrimination against homosexuals ‘has existed since biblical times,’ they fail to show how the state, through the F.E.P. Act, is involved in any discrimination or has imposed any classification along sexually oriented lines. The purpose of the F.E.P. Act has been to protect certain enumerated minorities from unfair employment practices. (§ 1411.) The state has not imposed any limitations or prohibitions regarding the employment of homosexual vis-á-vis heterosexual persons. Appellants simply have no ‘classification’ on which to base an equal protection argument.

Appellants' final argument is not directed toward the FEPC, but is based on their complaint against PT&T. They assert under common law principles, that PT&T's quasi-public or monopoly position in the field of telephone communications requires that it not discriminate arbitrarily in its employment process.

The foundation of appellants' claim is the case of James v. Marinship Corp., supra, 25 Cal.2d 721, 155 P.2d 329, where a labor union had a ‘closed shop’ agreement with a shipbuilder, giving the union a monopoly on jobs in shipyards in the area. The union did not admit blacks, forcing them to join an inferior auxiliary union with few rights or privileges. The California Supreme Court declared: ‘Where a union has, as in this case, attained a monopoly of the supply of labor by means of closed shop agreements and other forms of collective labor action, such a union occupies a quasi public position similar to that of a public service business and it has certain corresponding obligations. It may no longer claim the same freedom from legal restraint enjoyed by golf clubs or fraternal associations. Its asserted right to choose its own members does not merely relate to social relations; it affects the fundamental right to work for a living.’ (Id. at p. 731, 155 P.2d at p. 335.) The court further noted the common law doctrine imposes special duties on holders of a monopoly, such as serving all comers and charging reasonable rates. The court went on to say: “. . . The question presented in the instant case is not one of prices or of serving the public but one of employment . . .. However, the principle is the same; the holders of the monopoly must not exercise their power in an arbitrary, unreasonable manner so as to bring injury to others.” (Id. at p. 732, 155 P.2d at p. 335, quoting from Wilson v. Newspaper & Mail Deliverers' Union (1938) 123 N.J.Eq. 347, 197 A. 720, 722.)

The James case was decided in 1944, before the enactment of the F.E.P. Act. It is not surprising, therefore, that our Supreme Court found that a practice which clearly discriminated against blacks was contrary to the strong public policy of this state.

No such policy with reference to homosexuals has been enunciated. On the contrary, as pointed out above, the Legislature has expressly refused to make discrimination against homosexuals an unlawful employment practice. Until it does so, we do not feel impelled to change, or to add to the legislative scheme.

The judgments are affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Labor Code section 1420 of the Act provides in pertinent part: ‘It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶](a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical handicap, medical condition, or sex of any person, to refuse to hire or employ him or to refuse to select him for a training program leading to employment, or to bar or to discharge such person from employment or from a training program leading to employment, or to discriminate against such person in compensation or in terms, conditions or privileges of employment.’ (Emphasis added.)

2.  All future statutory references, unless other wise specified, are to the Labor Code.

3.  Appellants rely on James v. Marinship Corp. (1944) 25 Cal.2d 721, 155 P.2d 329, for the proposition that California outlawed discrimination in the field of employment even before the F.E.P. Act. The James case is discussed more fully infra. Suffice it to say that the decision was based upon special circumstances such as the labor union's position as a monopoly coupled with the state's strong public policy against racial discrimination. James did not deal with other forms of employment discrimination, nor did it alter the general common law doctrine that private employers were free to hire, retain or discharge their employees at will.

4.  See Cianciolo v. Members of the City Council, Knoxville, Tenn. (E.D.Tenn.1974) 376 F.Supp. 719; Corey v. City of Dallas (N.D.Tex.1972) 352 F.Supp. 977, reversed on other grounds in (5th Cir. 1974) 492 F.2d 496.

EMERSON, Associate Justice.* FN* Retired Judge of the Superior Court sitting under assignment by the Chairman of the Judicial Council.

SCOTT, Acting P. J., and ELKINGTON, J.,** concur.