Gay Law Students Assn. v. Pacific Tel. & Tel. Co.

Decision Date31 May 1979
Docket NumberS.F. 23625
Parties, 595 P.2d 592, 19 Fair Empl.Prac.Cas. (BNA) 1419, 19 Empl. Prac. Dec. P 9268 GAY LAW STUDENTS ASSOCIATION et al., Plaintiffs and Appellants, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY et al., Defendants and Respondents.
CourtCalifornia Supreme Court

David C. Moon, Berkeley, Robert E. Mann, Richard Gayer and John Eshleman Wahl, San Francisco, for plaintiffs and appellants.

Thomas F. Coleman, Steven T. Kelber, Los Angeles, Donald C. Knutson, Los Angeles, Paul Freud Watman, Barbara E. Weiner, Patti Roberts, San Francisco, Anthony G. Amsterdam, Stanford, Erica Black Grubb, Armando M. Menocal, III and Lois Salisbury, San Francisco, as amici curiae for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Warren J. Abbott, Asst. Atty. Gen., Carole R. Kornblum and Richard N. Light, Deputy Attys. Gen., Alan C. Nelson, James S. Hamasaki, Calvin A. Mendonca and Harold R. Crookes, San Francisco, for defendants and respondents.

TOBRINER, Justice.

In June 1975 plaintiffs, four individuals and two associations organized to promote equal rights for homosexual persons, filed the present class action against Pacific Telephone and Telegraph Company (PT&T) 1 and the California Fair Employment Practice Commission (FEPC). 2 The complaint alleged that PT&T practices discrimination against homosexuals in the hiring, firing and promotion of employees, asserted the illegality of such employment discrimination and sought declaratory and injunctive relief to prevent PT&T from the continuation of such practices. The complaint also prayed for monetary damages to compensate for losses sustained as a result of PT&T's alleged past discrimination. As to the FEPC, the complaint asserted that, contrary to its alleged statutory mandate, the commission had improperly refused to take any action to remedy employment discrimination against homosexuals by PT&T and other employers.

PT&T demurred to the complaint, maintaining that even if it had adopted the alleged policy of employment discrimination against homosexuals, California law did not bar such discrimination. The FEPC filed an answer to the complaint, taking no position as to the propriety of the action as to PT&T, but asserting that the California Fair Employment Practice Act (FEPA) does not authorize FEPC action as to employment discrimination based upon "sexual orientation," i. e., homosexuality. The trial court sustained PT&T's demurrer without leave to amend, denied plaintiffs' prayer for mandate against the FEPC, and accordingly entered judgment for all defendants. For the reasons discussed below, we have concluded that the judgment in favor of PT&T should be reversed but that the judgment in favor of the FEPC should be affirmed.

1. Summary of proceedings

The issues before us on this appeal turn on the sufficiency of plaintiffs' pleading. Plaintiffs' complaint presents independent claims on behalf of one separate subclass against PT&T and a second subclass against the FEPC. We summarize first the allegations against PT&T.

The causes of action against PT&T are brought on behalf of a subclass composed of homosexuals who are past, present, or future applicants for employment or employees of PT&T, and have been or will be adversely affected by PT&T's alleged discrimination against homosexuals. This subclass is represented by two individual plaintiffs Robert Desantis, who alleges that his application for employment with PT&T was rejected because of his homosexuality, and Bernard Boyle, who claims that anti-homosexual harassment led him to resign from his job with PT&T. The subclass is also represented by plaintiff Gay Law Students Association, which alleges that its members will become attorneys and will be interested in working for PT&T, and by plaintiff Society for Individual Rights, a homosexual organization which alleges that its members have applied and will apply for employment with PT&T. 3

The complaint alleges that "PT&T has maintained and enforced a policy of employment discrimination against homosexuals," and that "PT&T has, since at least 1971, had an articulated policy of excluding homosexuals from employment opportunities with its organization." Plaintiffs adduced detailed allegations to support this charge, including the allegation that "Plaintiff Desantis was refused permission to even apply for employment with Defendant PT&T when Defendant Silverman (the PT&T job interviewer) learned of his homosexual orientation." Exhibits attached to the complaint additionally support plaintiffs' further charge that PT&T follows a policy of discrimination against "manifest" homosexuals. 4

Plaintiffs explain the economic impact of PT&T's alleged discriminatory policy: "PT&T employs over 93,000 people. . . . Many of PT&T's jobs require skills useful only in telephone companies, and not in the electrical or electronics fields generally. Thus persons having acquired such skills from PT&T or other telephone companies will be effectively denied employment in California if they are known or thought to be homosexual, as will PT&T employees who cannot obtain advancement within PT&T because of their homosexuality or who are fired in whole or in part for this reason."

In addition to declaratory relief, plaintiffs seek a permanent injunction barring PT&T from continuing to refuse to employ or promote persons because of their sexual orientation. Plaintiffs further ask the court to order PT&T to pay monetary damages to compensate the victims of such discrimination for loss of wages or salaries.

Plaintiffs filed their cause of action against the FEPC on behalf of a second subclass of homosexuals who have complained or will complain to the FEPC of employment discrimination, but have been or will be refused assistance by the FEPC. All individual and organizational plaintiffs allege that they have been refused assistance by the FEPC because of that agency's policy of not accepting jurisdiction over complaints of discrimination based on sexual orientation. Plaintiffs therefore seek declaratory relief and mandate to compel the FEPC to accept jurisdiction over complaints of employment discrimination based upon homosexuality.

PT&T demurred to plaintiffs' complaint on the ground that it failed to state a cause of action. Answering plaintiffs' complaint, the FEPC admitted the pertinent allegations but denied that it has jurisdiction to accept complaints of discrimination based on sexual orientation. After hearing argument the trial court sustained PT&T's demurrer without leave to amend; the court also denied plaintiffs' request for mandate and declaratory relief against the FEPC. The court thereupon entered judgment for defendants on all causes of action. Plaintiffs appeal from that judgment.

2. Plaintiffs' allegations of arbitrary employment discrimination against homosexuals state a cause of action against PT&T.

We begin with a consideration of plaintiffs' claims against PT&T. PT&T asserts, in essence, that its employment practices are subject to no greater legal restrictions than the employment practices of any other employer in this state. Accordingly, PT&T argues that the provisions of the FEPC, which we discuss below, constitute the sole limitations on the company's authority to engage in discriminatory employment practices. As we shall explain, however, we have concluded that, contrary to PT&T's assertions, the equal protection clause of the California Constitution (art. I, § 7, subd. (a)) places special obligations on a state-protected public utility, such as PT&T, to refrain from all forms of arbitrary employment discrimination. In addition, we have concluded that PT&T's alleged employment discrimination also violates the explicit statutory prohibition on public utility discrimination embodied in section 453, subdivision (a) of the Public Utilities Code. We turn initially to the constitutional question.

(a). Article I, section 7 subdivision (a) of the California Constitution bars a public utility from engaging in arbitrary employment discrimination.

Plaintiffs contend that PT&T's alleged discriminatory employment practices violate the equal protection guarantee of the California Constitution by arbitrarily denying qualified homosexuals employment opportunities afforded other individuals. In analyzing this constitutional contention, we begin from the premise that both the state and federal equal protection clauses clearly prohibit The state or any governmental entity from arbitrarily discriminating against any class of individuals in employment decisions. (See, e. g., Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645; Kotch v. Pilot Comm'rs (1947) 330 U.S. 552, 556, 67 S.Ct. 910, 91 L.Ed. 1093.) Moreover, past decisions of this court establish that this general constitutional principle applies to homosexuals as well as to all other members of our polity; under California law, the state may not exclude homosexuals as a class from employment opportunities without a showing that an individual's homosexuality renders him unfit for the job from which he has been excluded. (See, e. g., Morrison v. Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375.) Courts in other jurisdictions have reached similar conclusions. (See, e. g., Norton v. Macy (1969) 135 U.S.App.D.C. 214, 417 F.2d 1161; Society for Individual Rights, Inc. v. Hampton, (N.D.Cal.1973) 63 F.R.D. 399; Saal v. Middendorf (N.D.Cal.1977) 427 F.Supp. 192, 199-203; Martinez v. Brown (N.D.Cal.1978) 449 F.Supp. 207, 211-213; In re Kimball (1973) 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436; cf. Major v. Hampton (E.D.La.1976) 413 F.Supp. 66; Bruns v. Pomerleau (D.Md.1970) 319 F.Supp. 58; Mindel v. United States Civil Service Comm. (N.D.Cal.1970) 312 F.Supp. 485; Erb v. Iowa State Board of Public Instruction (Iowa 1974) 216 N.W.2d 339. See generally Schlei &...

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