Bohemian Club v. Fair Employment & Houseing Com.

CourtCalifornia Court of Appeals
Citation187 Cal.App.3d 1,231 Cal.Rptr. 769
Parties, 52 Fair Empl.Prac.Cas. (BNA) 755, 42 Empl. Prac. Dec. P 36,729 BOHEMIAN CLUB, Plaintiff and Appellant, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, State of California, Defendant and Appellant, Department of Fair Employment and Housing et al., Intervenors and Appellants. A024988.
Decision Date20 November 1986

Pillsbury, Madison & Sutro, William I. Edlund, Michael H. Salinsky, San Francisco, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Marian M. Johnston, Deputy Atty. Gen., Sacramento, for defendant and appellant.

John P. Castello, Chief Counsel, Prudence Kay Poppink, Directing Atty., Robert Barnes, Anne D. Brandon, Staff Attys., Dept. of Fair Employment & Housing, San Francisco, for intervenors and appellants.

NEWSOM, Associate Justice.

The Department of Fair Employment and Housing (hereafter Department) filed an accusation against the Bohemian Club (hereafter Club) for alleged violations of the Fair Employment and Housing Act (hereafter FEHA). The accusation alleged that the Club, as an employer covered by the FEHA, had--in violation of the Act--pursued a discriminatory hiring policy which systematically excluded women from all temporary and permanent jobs at its Monte Rio camp and most of such positions at its San Francisco location.

The Club denied that it is a covered employer, and, in the alternative, asserted that male gender is a bona fide occupational qualification. It also asserted that the FEHA is preempted by Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e et seq.), which does not include private clubs in its definition of employers subject to its antidiscrimination provisions.

The procedural background may be summarized as follows. An administrative law judge heard the case and ruled that male gender is a bona fide occupational qualification at the Club. The Fair Employment and Housing Commission (hereafter Commission) rejected the judge's findings and conclusions and issued its own findings and decision ordering the Club to institute an affirmative action program to employ women in both San Francisco and Monte Rio.

Pursuant to section 1094.5 of the Code of Civil Procedure, the Club filed a petition for a writ of mandamus in the superior court.

The petition did not name the Department and its director as real parties in interest; they, however, opposed the petition and filed their own petition in intervention to set aside the Commission's ruling purporting to deny class-wide back-pay. While the Commission agreed that the back-pay ruling should be set aside, the trial court, in granting the Club's petition, denied the petition in intervention as moot.

On December 1 and 3, a hearing was held, after which the trial court issued a tentative ruling granting the Club's petition. In the aftermath of attendant publicity, the Commission learned for the first time that the trial judge had participated in the Club's activities, and the Commission's request that he disqualify himself was denied.

The Club's petition was granted. The trial court held that: (1) Title VII preempts the FEHA; and (2) even if the FEHA is not preempted, male gender is a bona fide occupational qualification. The court did not merely order the Commission to set aside its decision, but also dismissed the underlying accusation against the Club. While the Club was awarded costs, its cost bill was subsequently taxed insofar as it claimed attorney's fees.

Both the Commission and the Department appealed. 1 The Club also appealed from the order denying it attorney's fees.

A review of the pertinent factual context reveals the following. The Bohemian Club is a distinguished private nonprofit association whose membership is limited to men professing devotion to the arts. It has a long and honorable history since its inception more than a century ago and it occupied an important place in the history of literature in early-day San Francisco. Its approximately 2,000 members are chosen by a highly selective process. Potential members are interviewed extensively and must be devoted to the arts, or willing to participate in artistic activities.

The Club's activities take place at two different locations: the City Club in San Francisco and the Grove, a 2500 acre camping area near Monte Rio, California. Members attend concerts, theatrical and musical productions, oratorical presentations, lakeside talks and other functions.

The Club permanently employs 90 men in managerial, clerical, craft, food preparation and service, cleaning and personal service positions at its San Francisco location. Women are employed in positions which do not require their presence at Club functions. In accordance with this policy, women work in accounting and administrative positions and at the print shop. Women also clean rooms and may be hired as food servers for members' private parties. At the Grove, a permanent work force of about ten employees is maintained. These permanent staff members supervise a temporary work force of 250 men hired during the annual retreats at the Grove.

The Club's general manager testified that employees are primarily hired through union referrals and from the area around the Grove. When the union cannot provide an employee, the Club goes to the state employment department and sometimes even hires "off the street". Don Hiemforth, a member of the local Food Servers' Union, who has frequently worked at the Club, testified that, to his knowledge, referrals from the union have never been refused.

One waiter frequently employed at the Club testified concerning the Club's policy against fraternization between employees and members and guests. Waiters, for example, are not permitted to remain in the dining room at the City Club during the Thursday night club functions staged after dinner has been served. Such employees are strictly instructed to maintain relations with members at a minimal, exclusively business level.

Similar rules at the Grove prohibit fraternization between employees and members. The Club's general manager conceded that Grove employees are prohibited from fraternizing with members, and testified as well that employees are not permitted use of the swimming facilities.

The first legal question to be addressed in the present appeal is whether the Bohemian Club, as a private nonprofit corporation, is subject to the antidiscrimination provisions of the Fair Employment & Housing Act. (Gov.Code, § 12920 et seq.)

The Fair Employment and Housing Act is a comprehensive scheme for the realization of the state's public policy "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." (Gov.Code, § 12920)

Under Government Code section 12926 subdivision (c), the term employer "does not include a religious association or corporation not organized for private profit." The Club accordingly contends that, as a nonprofit corporation, it is exempted from the antidiscrimination provisions of the FEHA. Appellants assert, however, that the word "religious" modifies both "association" and "corporation not organized for private profit." (Gov.Code, § 12926, subd. (c).) Thus, under appellants' interpretation the exemption would only apply to the Club if it were a religious nonprofit corporation. The language at issue is ambiguous; it is not clear whether religious only modifies association or whether it also refers to a nonprofit corporation. This ambiguity is resolved, however, by a review of the pertinent legislative history. (Sand v. Superior Court (1983) 34 Cal.3d 567, 570, 194 Cal.Rptr. 480, 668 P.2d 787.)

When Government Code section 12926, subdivision (c) was originally enacted, the term employer did not "include a social club, fraternal, charitable, educational or religious association or corporation not organized for private profit." (Labor Code § 1413, subd. (d).) Under the amended version, however, the Legislature deleted social clubs, as well as fraternal, charitable, and educational organizations from the statutory exemption. "Where the amendment of a statute consists of the deletion of an express provision, the presumption is that a substantial change in the law was intended." (Subsequent Injuries Fund v. Industrial Acc. Com. (1963) 59 Cal.2d 842, 844, 31 Cal.Rptr. 477, 382 P.2d 597 citing Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 231, 273 P.2d 5; see also Longshore v. County of Ventura (1979) 25 Cal.3d 14, 26, 157 Cal.Rptr. 706, 598 P.2d 866; Ladd v. Board of Trustees (1972) 23 Cal.App.3d 984, 990, 100 Cal.Rptr. 571.)

By specifically deleting "social clubs" from the statutory exemption, it appears that the Legislature no longer wished to afford such entities an exemption from the nondiscrimination policies of the FEHA. Moreover, the deletion of charitable organizations, which are by nature nonprofit, clearly indicates that the term religious was intended to modify both "association" and "corporation not organized for private profit." Had the Legislature simply intended, as respondent suggests, to exempt all nonprofit corporations, it seems unlikely that it would have deleted charitable organizations from the exemption provision. In any event, we conclude that the adjective "religious" must be read as modifing both "association" and "corporation not organized for private profit." And, upon this reading of the statute, we conclude that only religious associations or nonprofit corporations are exempt from the antidiscrimination provisions of FEHA, and that appellants do not fall within this exempt catagory. 2 Appellants assert that the trial court was limited to determining whether substantial evidence supported the Commission's findings, and that it...

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    • United States
    • James Publishing Practical Law Books California Causes of Action
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    ...secular non-profit organizations are covered. Cal. Code Regs. tit. 2, §7286.5(a); Bohemian Club v. Fair Employment & Housing Comm’n , 187 Cal. App. 3d 1, 231 Cal. Rptr. 769 (1986). A religious not for profit institution is not considered an employer under FEHA, except when it operates a hea......

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