Cassista v. Community Foods, Inc.

• Decision Date: 02 September 1993
• Docket Number: No. S028230,S028230
• Citation: 5 Cal.4th 1050,856 P.2d 1143,22 Cal.Rptr.2d 287
• Parties: , 856 P.2d 1143, 62 Empl. Prac. Dec. P 42,505, 62 USLW 2159, 2 A.D. Cases 1188, 4 NDLR P 175 Toni Linda CASSISTA, Plaintiff and Appellant, v. COMMUNITY FOODS, INC., et al., Defendants and Respondents.
• Court: California Supreme Court

Page 287

22 Cal.Rptr.2d 287

5 Cal.4th 1050, 856 P.2d 1143, 62 Empl. Prac. Dec. P 42,505,

62 USLW 2159, 2 A.D. Cases 1188, 4 NDLR P 175

Toni Linda CASSISTA, Plaintiff and Appellant, v. COMMUNITY FOODS, INC., et al., Defendants and Respondents.

No. S028230.

Supreme Court of California,

In Bank.

Sept. 2, 1993.

Rehearing Denied Oct. 28, 1993.

Robins, Kaplan, Miller & Ciresi and Stefanie M. Brown, San Francisco, for plaintiff and appellant.

Joseph Posner, Encino, Pauline T. Kim, Jo Anne Frankfurt, John M. True III, San Francisco, Steven C. Owyang, Prudence Poppink, San Francisco, James F. Miller, Jr., Cupertino, Quackenbush & Quackenbush and William C. Quackenbush, Palo Alto, as amici curiae on behalf of plaintiff and appellant.

Grunsky, Ebey, Farrar & Howell, Frederick H. Ebey and Leslie J. Karst, Watsonville, for defendants and respondents.

Paul, Hastings, Janofsky & Walker, Santa Monica, Paul Grossman, Brobeck, Phleger & Harrison, Cecily A. Waterman, Thomas M. Peterson, Karen H. Peteros and Lucy C. Hodder, San Francisco, as amici curiae on behalf of defendants and respondents.

Brad Seligman, Oakland, as amicus curiae.

ARABIAN, Justice.

We granted review to consider whether the California Fair Employment and Housing Act (FEHA or Act) (Gov.Code, § 12900 et seq.) prohibits employment discrimination on the basis of a person's weight. ¹ We conclude that weight may qualify as a protected "handicap" or "disability" within the meaning of the FEHA if medical evidence demonstrates that it results from a physiological condition affecting one or more of the basic bodily systems and limits a major life activity. Because the plaintiff here adduced no evidence of this kind, we conclude that she failed to establish a prima facie case of employment discrimination.

I. FACTS

In the summer of 1987, Toni Linda Cassista (plaintiff) applied for one of three openings at Community Foods, a health food store in the City of Santa Cruz. Founded as a neighborhood collective in the 1970's, Community Foods normally employed 16 to 17 people. The duties to be performed by the prospective employees included running the cash register, stocking 35- to 50-pound bags of grain, carrying 50-pound boxes of produce, retrieving groceries from the warehouse, changing 55-gallon drums of honey, and carrying large crates of milk. To fill the vacancies, Community Foods sought people with grocery store, retail clerk, cashier and stocking experience. New employees could eventually become members of the collective with management and ownership interests.

Plaintiff is five feet four inches tall and, at the time she applied to Community Foods, weighed three hundred and five pounds. She had previously been employed in several restaurants, managed a sandwich shop and worked as an aide in nursing homes. Plaintiff heard about the openings at Community Foods though a friend who worked there; she was interested in the job because she believed that the collective shared her "political awareness of issues and consciousness and concerns regarding the community and the environment...."

The hiring process at Community Foods involved two steps. First, the applicant was interviewed by one or two members of the collective; next, those applicants who were not eliminated after the initial screening were called back for a more in-depth interview with the hiring committee. Plaintiff was one of eight applicants invited for a second interview.

Plaintiff's interview lasted approximately 30 minutes and covered the job requirements and her previous experience. Toward the end of the interview, she was asked if she had any physical limitations which would interfere with her ability to do the job. She replied that she did not. Plaintiff subsequently learned that the positions had been filled by three of the other applicants.

Several weeks after her interview with the committee, plaintiff learned of another opening at Community Foods. She immediately contacted Will Hildeburn, Community Foods's personnel coordinator, and asked that she be considered for the position. Hildeburn agreed to resubmit her application. Later, when she failed to hear from the committee, plaintiff again called Hildeburn and was informed that she had not been selected for the job.

Plaintiff asked Hildeburn what she might do to improve her chances for future openings. Hildeburn replied that they had hired people with more experience. He also admitted telling plaintiff that "there was some concern about your weight." Plaintiff testified that Hildeburn's response was more explicit, to the effect that "members were concerned that you couldn't physically do the work due to your weight." She denied that Hildeburn referred to plaintiff's lack of experience as the basis for the committee's hiring decision.

Upset by her conversation with Hildeburn, plaintiff wrote to Community Foods about the matter. In response, Community Foods arranged a meeting with plaintiff to explain their decision and discuss her concerns. At the meeting, Hildeburn apologized to plaintiff for hurting her feelings and various members of the collective discussed their views about weight and job performance. One stated that her own weight fluctuated and observed that when she was heavier "at the end of the day ... my feet hurt and my lower back usually hurts, because my stomach is, you know, pulling my back." The same member testified, however, that plaintiff's weight played no role in the collective's hiring decision. Another member recalled that when she was pregnant it became more difficult to climb ladders and stock aisles, and observed that "physical attributes have to be a part of the decision-making process...." She too testified, however, that plaintiff's weight had no effect on the hiring decision.

Dissatisfied with the results of the meeting, plaintiff filed a complaint with the Department of Fair Employment and Housing (Department), alleging discrimination on the basis of her weight. Shortly thereafter, Community Foods offered plaintiff a position with the store. She refused the offer, however, because she did not believe the collective had adequately "educated" itself about the concerns of overweight people. After the Department determined not to file a complaint in the matter, plaintiff filed suit against Community Foods and Will Hildeburn alleging that she was denied employment in violation of the FEHA "in that [they] regarded her as having a physical handicap, i.e., too much weight." ² Community Foods answered the complaint and denied its allegations.

The matter was tried before a jury. In addition to plaintiff, who recounted her experiences during the hiring process, Will Hildeburn testified that he had been concerned initially about plaintiff's physical ability to maintain the "pace" necessary for the job; his concerns were alleviated, however, by another member who stated that "large people can work as fast as anybody else." Hildeburn also conceded asking a friend shortly before the meeting with plaintiff, "If she had a 300-pound worker and 150-pound worker, how would she decide who to pick." Hildeburn denied, however, that plaintiff's weight was a factor in the committee's selection. A friend of plaintiff's also testified to the physical and emotional distress which plaintiff experienced after the meeting with Community Foods.

At the conclusion of plaintiff's case, Community Foods moved for a nonsuit on the ground that plaintiff had failed to establish she was a handicapped individual within the meaning of the FEHA. The trial court denied the motion. ³ Thereafter, three members of the collective (Will Hildeburn, Deborah Walsh and Elvie Moreno) testified for the defense that plaintiff's weight had played no role in the store's hiring decision. In addition, a safety engineer, Dr. Robert Liptai, testified about the health and safety ramifications of employing a 305-pound person at a store such as Community Foods. Liptai stated that the store would constitute a hazardous workplace for an individual such as plaintiff because of the narrow aisles and the danger that stepstools and ladders would not support her weight.

At the conclusion of the evidence, the trial court instructed the jury, inter alia, that plaintiff was required to prove that "but for plaintiff's handicap she would have been hired by defendant...." The jury returned a unanimous verdict in favor of Community Foods.

The Court of Appeal reversed the judgment. The court held: (1) the evidence established that Community Foods considered plaintiff's weight to be a physical handicap as that term is defined under the FEHA, and (2) the trial court erred in instructing the jury that plaintiff was required to prove that but for her weight, she would have been hired. Rather, the court held that once plaintiff adduced evidence her weight played a part in the employer's decision, the latter must demonstrate it would have made the same decision even if weight had not been considered. Concluding that the instructional error was prejudicial, the Court of Appeal remanded for a new trial.

We granted review to consider whether, on the record evidence, plaintiff had established a prima facie case of handicap discrimination within the meaning of the FEHA. ⁴

II. DISCUSSION

A. Physical Handicap

1. Background

It is important to emphasize at the outset the limited nature of our inquiry. We do not intend, nor indeed are we at liberty, to define "physical handicap" in terms we believe to be morally just or socially desirable. Our task, rather, is to determine the boundaries of that provision which the Legislature intended. In this endeavor, we are constrained to begin with the statutory text, assuming that the Legislature chose its words carefully and assigned them their usual and ordinary meaning. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

In 1973, the Legislature amended Labor Code section...