Boren v. Department of Employment Dev.

• Decision Date: 17 June 1976
• Citation: 130 Cal.Rptr. 683,59 Cal.App.3d 250
• Court: California Court of Appeals Court of Appeals
• Parties: Betty Ann BOREN, Individually and on behalf of all other persons similarly situated, Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF EMPLOYMENT DEVELOPMENT et al., Defendants and Respondents. Civ. 14138.

Page 683

130 Cal.Rptr. 683

59 Cal.App.3d 250

Betty Ann BOREN, Individually and on behalf of all other persons similarly situated, Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF EMPLOYMENT DEVELOPMENT et al., Defendants and Respondents.

Civ. 14138.

Court of Appeal, Third District, California.

June 17, 1976.

Richard M. Pearl, Cal., Rural Legal Assistance, San Francisco, Charles F. Elsesser, Jr., Los Angeles, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., by N. Eugene Hill and Edmund E. White, Deputy Attys. Gen., Sacramento, for defendants and respondents.

BY THE COURT:

Plaintiff, a working wife and mother, was denied unemployment insurance compensation. She charges that the disqualification statute unconstitutionally discriminates against female workers. The statute, section 1264 of the California Unemployment Insurance Code, disqualifies any person leaving his or her job because of marital or domestic duties and who does not supply the family's major support. ¹

The plaintiff is Betty Ann Boren, who worked at a drive-in restaurant. Mrs. Boren had four children, the youngest an infant. Her weekly wage, combined with her husband's earnings, provided the family's support. Her employer required her to change her work shift; she could not find a baby sitter to care for her infant during the proposed new shift; when she told her employer she could not work the new shift, he replaced her.

The unemployment insurance agency rejected Mrs. Boren's claim for unemployment compensation on the ground that she had left her job 'for domestic reasons' and was not the major source of family support. After exhausting her administrative appeals, Mrs. Boren filed this action, purportedly as a class suit on behalf of herself and other women. She requested a writ of mandate to compel the unemployment insurance agency to set aside its decision denying compensation and also sought a declaratory judgment of the statute's unconstitutionality. Her thesis was that section 1264, notwithstanding its neutral language, unconstitutionally discriminated against female applicants for unemployment compensation. The superior court sustained the state's demurrer with leave to amend. Plaintiff elected to stand on her pleading. She appeals from the adverse judgment.

Literally, section 1264 disqualifies an employee who leaves or resigns. Here, Mrs. Boren's employer replaced her when her domestic needs prevented her from accepting a new work shift. She makes no point that she did not actually resign. Counsel on both sides assume that an employee effectively resigns by rejecting the employer's reasonable work conditions. We accept that assumption. ²

Like other state systems, the California unemployment insurance program is designed primarily for those who are unemployed because of lack of work and who are genuinely in the labor market. Section 100 describes the system as one providing benefits for persons unemployed 'through no fault of their own.' The primary focus on economically caused unemployment is expressed by provisions disqualifying an applicant who left his work 'voluntarily without good cause' or had been 'discharged for misconduct connected with his most recent work.' (§ 1256; see, however, Prescod v. Unemployment Insurance Appeals Bd. (1976) 57 Cal.App.3d 29, 40, 127 Cal.Rptr. 540.) The system's restriction to claimants genuinely in the labor market is implemented by confining eligibility to the claimant 'able to work and available for work for that week' and who has 'conducted a search for suitable work in accordance with specific and reasonable instructions of a public employment office.' (§ 1253, subds. (c), (e).)

Section 1264, the provision under attack, imposes a disqualification resembling that for voluntary terminations without good cause. It denies eligibility to a supplementary breadwinner who leaves in order to marry or to join a distant spouse or who quits because of 'marital or domestic duties.' An important feature of section 1264 perpetuates the disqualification throughout the ensuing period of unemployment and until the individual has secured a new job. The statute is framed in neuter terms, applying literally to men and women alike.

In challenge to the statute's surface avoidance of gender references, Mrs. Boren's petition alleges: 'Due to cultural role patterns and a past history of discrimination women in our society bear a disproportionate share of the domestic duties and are significantly less able to contribute to the support of their families than their male counterparts. Thus the disqualification from provisions of . . . § 1264 operates almost solely against women, as evidenced by the fact that in 1971 ninety-nine percent (99%) of the claimants declared ineligible for unemployment insurance under § 1264 were women.'

The state's demurrer provisionally admits the plaintiff's factual claims. Thus for the purpose of this decision, we accept the truth of the allegation that 99% Of the persons disqualified under section 1264 in 1971 were women. In the absence of challenge by the state, it is justifiable to assume that the 1971 statistic also characterizes later years. ³

At oral argument we inquired whether the unemployment insurance agency construed section 1264 to disqualify a pregnant woman who left her job because she did not wish to work during the remaining months of her pregnancy. The answer was affirmative. The Unemployment Insurance Appeals Board holds that the 'domestic duties' clause of section 1264 applies to a woman who leaves her work because of pregnancy. (Matter of Sherry Pratt, supra; see, however, section 1264.2.)

Appellant charges section 1264 with a number of constitutional infirmities--that it classifies unemployment insurance applicants by sex, thus colliding with title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and offending the supremacy clause of the Federal Constitution; that it denies female claimants equal protection of the laws and due process of law in violation of the Fourteenth Amendment. The statute does indeed deprive affected claimants of equal protection of the laws. Other claims of invalidity need not be analyzed.

The equal protection clause of the Fourteenth Amendment denies the states the power to erect arbitrary statutory classifications based upon sex. (Reed v. Reed (1971) 404 U.S. 71, 75--76, 92 S.Ct. 251, 30 L.Ed.2d 225.) According to California decisional law, a statute establishing 'suspect classifications' or trenching upon 'fundamental interests' is vulnerable to strict judicial scrutiny; it may be sustained by a showing of a compelling state interest which necessitates the distinction; a sex-based classification is treated as suspect. (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16--20, 95 Cal.Rptr. 329, 485 P.2d 529 see also, Frontiero v. Richardson (1973) 411 U.S. 677, 682--683, 93 S.Ct. 1764, 36 L.Ed.2d 583 (plurality opinion).) We are of course bound by the established California rule.

The state argues that section 1264 is devoid of any gender classification; that it affects male and female employees alike; that it draws a line only between those who remain at work and those who leave their jobs for domestic reasons; that social and cultural patterns, not the statute, force women rather than men to leave work for the sake of domestic needs; that any inferiority of treatment arises from these social patterns, not from the statute. Moreover, according to the argument, the unemployment insurance system is designed primarily for those unemployed through lack of work; the legislature may reinforce that objective by withholding subsidies from those who resign to take care of their families.

Contrary to the state's thesis, section 1264 does not draw a line between those who remain at work and those who leave work for domestic reasons. Instead, it draws a line between several kinds of unemployment insurance claimants. It draws a line between a claimant who left work voluntarily for domestic reasons and one who left work voluntarily but for good cause of another sort. ⁴ The former is barred from compensation, the latter eligible.

Section 1264 creates a second classification, differentiating between persons providing primary and secondary family support. Even though the individual quit work for domestic reasons, the primary breadwinner is immune from the statutory bar, the secondary breadwinner vulnerable to it.

Finally, the statute establishes a third classification, expressed in terms of the disqualification's duration. A person who quits voluntarily but for good cause must nevertheless pass the test of 'able and available for work' during any week for which he seeks benefits. (§ 1253). A person disqualified under section 1264 is not restored to eligibility upon returning to the labor market, for section 1264 prolongs the disqualification until the person regains bona fide employment.

In measuring these classifications against the equal protection clause, the court deals not so much with the statute's neutral language as with its practical impact. Its ultimate effect is the criterion of equal treatment. (Reitman v. Mulkey (1967) 387 U.S. 369, 373, 87 S.Ct. 1627, 18 L.Ed.2d 830, Mulkey v. Reitman (1936) 64 Cal.2d 529, 534, 50 Cal.Rptr. 881, 413 P.2d 825.) The courts must inquire into the statute's actual purposes. (Weinberger v. Weisenfeld (1975) 420 U.S. 636, 648, 95 S.Ct. 1225, 43 L.Ed.2d 514.) Discrimination may be demonstrated by statistics showing the statute's actual operation. (See Hernandez v. Texas (1953) 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866, Chance v. Board of Examiners (1972) 458 F.2d 1167.) A seemingly neutral statute which actually disqualifies a disproportionate number of one sex is discriminatory and vulnerable to the strict scrutiny test; it is enough if statistics show that the standard affects women only. (Hardy v. Stumpf (1974) 37 Cal.App.3d 958, 962, 964, 112 Cal.Rptr. 739.)

...