AMERICAN NATIONAL INSURANCE COMPANY v. STATE OF CALIFORNIA FAIR EMPLOYMENT PRACTICE COMMISSION (1981)

This is an appeal by an employer from a judgment of the superior court upholding a decision of the State Fair Employment Practice Commission on review by administrative mandamus. The issue before the commission was whether the employer violated Labor Code section 1420 in refusing employment to a man because of his elevated blood pressure which did not impair his ability to work but which the employer believed, upon medical advice, would expose him to a greater than normal risk of disability or death. We have concluded that section 1420 does not apply to this situation, and upon that ground, we reverse the judgment without reaching the question of burden of proof and sufficiency of the evidence.

The facts which are relevant to this decision are not in dispute. In June 1975, American National Insurance Company (hereafter Company) employed Dale Rivard as a sales and debit agent, subject to approval of the home office. Between 1963 and 1968, Rivard had been employed by the Company for similar work. After six weeks, the Company terminated the employment because he did not meet the Company's health requirements for that position.

The work of a sales and debit agent is to go door-to-door in a specified residential district selling insurance and collecting premiums. Agents are expected to meet certain sales quotas and to be current in the collection of premiums. The Company regards the work of a sales and debit agent as stressful, and as a matter of policy does not hire persons with elevated blood pressure for that work. When the Company terminated his 1975 employment, Rivard filed a complaint with the commission alleging that he had suffered discrimination because of a physical handicap in violation of Labor Code section 1420.¹

Following an administrative hearing, the commission decided that the Company had discriminated unlawfully against Rivard and ordered his reinstatement with back pay. The Company then petitioned the superior court for review of the commission's decision. The court found that the commission's findings were supported by the evidence and concluded that “High blood pressure is a protected physical handicap under the California Fair Employment Practice Act, Labor Code section 1410, et seq.” Accordingly, the superior court denied the Company's petition. This appeal is from that judgment.

Labor Code section 1413, subdivision (h) (now s 1413.1, subd. (d)) provided in 1975 as follows: “ ‘Physical handicap’ includes impairment of sight, hearing, or speech, or impairment of physical ability because of amputation or loss of function or coordination, or any other health impairment which requires special education or related services.” (Stats. 1973, ch. 1189, s 3, p. 2498.)

High blood pressure does not fit within the classification indicated by that definition. Each of the conditions listed in the definition is an impairment of some bodily function. High blood pressure does not impair function in any way analogous to amputation or the impairment of sight, hearing or speech. The closing phrase of the definition “any other health impairment which requires special education or related services” confirms the view that “handicap” refers to an impairment of function, as distinguished from a medical condition which has a lesser effect. The section is tailored to protect the person who has been handicapped by the sort of impairment of bodily function that usually necessitates special education or training to attain employability.

The commission argues that the statute should be liberally construed and that the handicaps specifically mentioned should be regarded only as examples. Nevertheless, reasonable interpretation does not permit the inclusion of a condition which is so unlike the kind of impairment described in the statute. (See Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 819, 100 Cal.Rptr. 501.)

The reasoning of the Supreme Court in Gay Law Student Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 156 Cal.Rptr. 14, 595 P.2d 592, is illuminating in its interpretation of the Fair Employment Practice Act. In that case the court was urged to hold that the prohibition of discrimination on the ground of sex should include discrimination on the ground of homosexuality. The argument was made that the act should be construed as barring all forms of arbitrary discrimination in employment. The Supreme Court said:

“Plaintiffs' contention that the act bars all arbitrary discrimination rests upon an analogy to the Unruh Civil Rights Act (Civ.Code, s 51) as construed by this court in In re Cox (1970) 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992. Civil Code section 51 declared that all persons are entitled to equal accommodations in business establishments ‘no matter what their race, color, religion, ancestry, or national origin.’ In Cox, we viewed section 51 as a codification of the common law doctrine that a business affected with a public interest must serve all customers on reasonable terms without discrimination. (See 3 Cal.3d at pp. 212-213, 90 Cal.Rptr. 24, 474 P.2d 992.) Construing the legislative enumeration of particular bases of discrimination as illustrative rather than restrictive, we interpreted section 51 to prohibit all arbitrary discrimination. (3 Cal.3d at pp. 215-216, 90 Cal.Rptr. 24, 474 P.2d 992.) Plaintiffs urge us to adopt the same interpretation of the FEPA.

“The defect in plaintiffs' argument, however, lies in the fact that whereas the Unruh Act represented a codification of the common law principle barring all discrimination by public accommodations in the provision of services, 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. Under these circumstances, the rationale of Cox is inapplicable to the FEPA, and the specifically enumerated categories as to which discrimination is prohibited cannot be viewed as simply ‘illustrative.’ Indeed, the fact that the Legislature has repeatedly amended the FEPA in recent years, protecting successively the categories of sex (Stats.1970, ch. 1508, s 4, p. 2995), age (Stats.1972, ch. 1144, s 1, p. 2211; Stats.1977, ch. 851, s 2, p. 2553), physical handicap (Stats.1973, ch. 1189, s 6, p. 2501), medical condition (Stats.1975, ch. 431, s 5, p. 925) and marital status (Stats.1976, ch. 1195, s 5, p. 5461), affords a rather strong indication that the Legislature itself does not regard the original 1959 act as a bar to all forms of arbitrary discrimination.”

The definition of “physical handicap” as it appears in the statute reflects a legislative decision balancing the interests of a limited class of individuals against the needs of those who are expected to provide employment. The purpose of such a statute is to encourage and enable a class of physically handicapped persons to participate in the social and economic life of the state and to engage in remunerative employment. At the same time, the Legislature must be aware that this salutary purpose is achieved at some additional cost to employers. Such a statute does to some extent impair the employer's freedom to select employees, and may entail increased operating costs. It also exposes the employer to the risk of expensive litigation whenever a choice is made, for whatever reason, not to employ a member of the protected class. The statutory definition of the protected class, limiting, as it must, the size of the group, reflects a legislative resolution of those conflicting interests. Thus the definition in Labor Code section 1413, subdivision (h) (now s 1413.1, subd. (d)) provides for the blind, the deaf and the paraplegic a special protection not afforded to those with medical conditions such as high blood pressure.

The intent of the Legislature in maintaining this balance is further demonstrated by its action in 1975 in amending section 1420 to forbid discrimination because of “medical condition.”²

The bill which proposed this amendment, A.B. 1194, included a comprehensive definition of “medical condition.”³

Then the bill was amended to define “medical condition” as “any health impairment for which a person has been rehabilitated or cured.” As finally adopted, the bill amended section 1420 to make it unlawful for an employer to discriminate because of a medical condition, and added to section 1413 the following definition of medical condition: “(i) ‘Medical condition’ means any health impairment related to or associated with a diagnosis of cancer, for which a person has been rehabilitated or cured, based on competent medical evidence.”

Such legislative history is an important aid in ascertaining the Legislature's intent. (See Osgood v. County of Shasta (1975) 50 Cal.App.3d 586, 589, 123 Cal.Rptr. 442.) It is apparent that the Legislature had before it a proposal to extend section 1420 to cover a wide category of medical conditions, which might well have been interpreted to include high blood pressure; but that proposal was rejected in favor of a very narrow and specified definition which clearly did not apply to high blood pressure. The 1975 legislation also reflects the Legislature's use of the term “medical condition” as meaning something different from “physical handicap.” As between the two, “medical condition” is a far more appropriate classification for the elevated blood pressure which afflicted Rivard. The legislative purpose, as reflected in its enactments, was not to classify such a health problem as a “physical handicap” within the meaning of the employment practices law.

The decisions on this subject in other jurisdictions are of little assistance because of the substantial differences in the statutes. Since the commission has relied on some decisions of other states, we mention several to illustrate the differences.

Providence Journal Co. v. Mason (1976) 116 R.I. 614, 359 A.2d 682, involved a woman who had been discharged after she had sustained a whiplash injury to her neck. The Rhode Island statute prohibiting discrimination against the handicapped contained this definition: “ ‘Physical handicap’ means any physical disability, (infirmity), malformation or disfigurement which is caused by bodily injury, birth defect or illness, including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a seeing eye dog, wheelchair, or other remedial appliance or device.”

The Supreme Court of Rhode Island held that a literal reading of “any physical disability” would extend the statute beyond reason. The court noted that the examples given in the definition were all serious injuries, and concluded that the whiplash injury was not sufficiently serious to come within the statutory definition. Hence, there was no violation.

Burgess v. Joseph Schlitz Brewing Co. (1979) 39 N.C.App. 481, 250 S.E.2d 687, cited by the commission, has since been reversed by the decision of the Supreme Court reported in (1979) 298 N.C. 520, 259 S.E.2d 248, which held that a person afflicted with glaucoma, which did not affect job performance, was not a “handicapped person” within the meaning of the North Carolina statute; and hence defendant's refusal to hire such a person was not unlawful.

The Wisconsin and Washington statutes forbid discrimination against the handicapped, but contain no definition of handicap. Accordingly, the courts of these states have applied the statutes broadly to any condition which makes achievement unusually difficult. (Chicago, Milwaukee, St. Paul & Pacific R.R. v. Department (1974) 62 Wis.2d 392, 215 N.W.2d 443; Chicago, Milwaukee, St. Paul & Pacific R.R. v. Washington State Com. (1977) 87 Wash.2d 802, 557 P.2d 307.)

In Advocates for the Handicapped v. Sears, Roebuck & Co. (1978) 67 Ill.App.3d 512, 24 Ill.Dec. 272, 385 N.E.2d 39, the court held that a person who had received a kidney transplant, and who therefore could not qualify for Sears' self-insurance program, could be refused employment on that ground. The Illinois statute, like the Wisconsin statute, contained no definition of the term handicapped, but the Illinois court expressly rejected the broad interpretation applied by the Wisconsin courts.

Our decision here must be based upon the language of the California statute, interpreted in light of the statutory purpose and the intent of the Legislature so far as it is revealed to us. By this standard, we must conclude that the Legislature did not intend to forbid an employer from disqualifying a prospective employee on the basis of a medical condition such as the elevated blood pressure which existed in this case.

The judgment is reversed.

FOOTNOTES

1.  At the time of the discharge, the pertinent part of Labor Code section 1420 read as follows:“It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or except when 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, 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.“....”(Stats. 1974, ch. 573, s 2, p. 1392.)

2.  These amendments became effective January 1, 1976, too late to affect the substance of this action, but illustrate legislative intent. (Stats.1975, ch. 431, p. 923.)

3.  “(i) ‘Medical condition’ includes: (1) any past, present, or possible future disease, disability, condition, diagnosis, prognosis, or impairment of health; (2) any past, present, or possible future medical care or treatment, the expense of such care or treatment, and the liability for such expense; (3) the effect of a person's medical condition as defined in clauses (1) and (2) of this subdivision upon such person's eligibility or ineligibility for any form of insurance coverage, his eligibility or ineligibility for any benefit provided by the employer to its employees, or the effect of such medical condition upon the cost of providing such insurance coverage or employee benefit.”

FILES, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.