American Nat. Ins. Co. v. State of Cal. Fair Employment Practice Com'n

• Decision Date: 21 January 1981
• Court: California Court of Appeals Court of Appeals
• Parties: , 25 Empl. Prac. Dec. P 31,751 AMERICAN NATIONAL INSURANCE COMPANY, Petitioner and Appellant, v. The STATE OF CALIFORNIA FAIR EMPLOYMENT PRACTICE COMMISSION, Respondent. Civ. 57148.

Page 887

170 Cal.Rptr. 887

114 Cal.App.3d 1008, 25 Empl. Prac. Dec. P 31,751

AMERICAN NATIONAL INSURANCE COMPANY, Petitioner and Appellant, v. The STATE OF CALIFORNIA FAIR EMPLOYMENT PRACTICE COMMISSION, Respondent.

Civ. 57148.

Court of Appeal, Second District, Division 4, California.

Jan. 21, 1981.

Paul, Hastings, Janofsky & Walker, Robert F. Walker and William S. Waldo, Los Angeles, for petitioner and appellant.

George Deukmejian, Atty. Gen., Arthur C. deGoede, Asst. Atty. Gen., and David S. Chaney, Deputy Atty. Gen., for respondent.

FILES, Presiding Justice.

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 § 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, § 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, § 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, § 4, p. 2995), age (Stats.1972, ch. 1144, § 1, p. 2211; Stats.1977, ch. 851, § 2, p. 2553), physical handicap (Stats.1973, ch. 1189, § 6, p. 2501), medical condition (Stats.1975, ch. 431, § 5, p. 925) and marital status (Stats.1976, ch. 1195, § 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 § 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...