Robinson v. Fair Employment & Housing Com.

• Decision Date: 16 March 1992
• Docket Number: No. S019095,S019095
• Citation: 825 P.2d 767,2 Cal.4th 226,5 Cal.Rptr.2d 782
• Court: California Supreme Court
• Parties: , 825 P.2d 767, 58 Fair Empl.Prac.Cas. (BNA) 887 J.E. ROBINSON, Plaintiff and Respondent, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Appellant.

Page 782

5 Cal.Rptr.2d 782

2 Cal.4th 226, 825 P.2d 767, 58 Fair Empl.Prac.Cas. (BNA) 887

J.E. ROBINSON, Plaintiff and Respondent, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Appellant.

No. S019095.

Supreme Court of California,

In Bank.

March 16, 1992.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Andrea Sheridan Oridan, Nelson Kempsky and Roderick E. Walston, Chief Asst. Attys. Gen., Carole Ritts Kornblum, Asst. Atty. Gen., Marian M. Johnston, Louis Verdugo, Jr., and Henry Torres, Jr., Deputy Attys. Gen., for defendant and appellant.

Patricia A. Shiu, Catherine K. Ruckelshaus, San Francisco and Abby J. Leibman, Los Angeles, as amici curiae on behalf of defendant and appellant.

Grace E. Emery, Santa Ana, for plaintiff and respondent.

Bernard L. Allamano and Alice L. Ramsey, Sacramento, as amici curiae on behalf of plaintiff and respondent.

BAXTER, Justice.

We are asked to construe Government Code section 12926, subdivision (c) (section 12926(c)), which defines "employer" for purposes of the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), and to determine whether under that section and the administrative regulation implementing it, plaintiff was properly subjected to the jurisdiction of the Fair Employment and Housing Commission (FEHC). ¹

The particular focus of our inquiry is the meaning of the statutory term "regularly employing" as applied to a person who has more than five employees, but has as many as five of them working on only two days of each week. An FEHC regulation defines "regularly employing" as "employing five or more individuals for each working day in any twenty consecutive calendar weeks in the current calendar year or preceding calendar year." (Cal.Code Regs., tit. 2, § 7286.5, subd. (a)(1).) (Regulation 7286.5.)

Plaintiff, assuming that Regulation 7286.5 establishes the jurisdiction of the FEHC, argues that under that definition he is not subject to FEHC jurisdiction. Discriminatory practices declared to be unlawful by section 12945 are so if the actor is an employer under section 12926(c), however. The statute, not the regulation, determines both the scope of section 12945 and the enforcement jurisdiction of the Department of Fair Employment and Housing and the FEHC.

The Court of Appeal, accepting the reasoning of the FEHC, concluded that the number of persons on the payroll, not the number working on any particular day, is determinative of the number of employees an employer regularly employs. We agree and reject plaintiff's further argument that Regulation 7286.5 did not give him notice that he was subject to FEHC jurisdiction. We therefore affirm the judgment of the Court of Appeal.

I

This litigation arises out of the refusal of plaintiff, a dentist, to reinstate Josephine Saul as a dental assistant after her six-week pregnancy leave terminated on February 21, 1984. At that time, plaintiff employed a receptionist and two dental assistants, each of whom worked five days per week. He also employed three dental hygienists who worked part time: one worked four days a week, one worked two days a week, and one worked only on Saturday mornings. Thus, he employed six persons, but on only two days each week were there as many as five employees working. ²

Saul filed a complaint with the FEHC charging that plaintiff's refusal to reinstate her as a dental assistant following her pregnancy leave was an unlawful practice under section 12945. ³ Following the issuance of an accusation against plaintiff and a hearing before an administrative law judge, the FEHC concluded that it had jurisdiction and that plaintiff had violated section 12945 when he refused to reinstate Saul. ⁴ The FEHC ordered plaintiff to cease unlawful discriminatory practices; to pay back wages of $12,950 and retirement plan contributions of $1,295, both with interest; and to pay $20,000 as damages in compensation for Saul's emotional injury. ⁵

Plaintiff had stipulated that he had five or more employees on his payroll for at least twenty consecutive calendar weeks in 1983 and 1984, but argued that the FEHC lacked jurisdiction over him because some of the employees worked part time and were not physically present in his office on each working day during those weeks.

Plaintiff sought review of the FEHC ruling by a petition for writ of administrative mandamus (Code Civ.Proc., § 1094.5) filed in the superior court pursuant to section 11523, again challenging the jurisdiction of the FEHC on the ground that he was not an employer as defined by the FEHA. The superior court agreed and directed that a peremptory writ of mandate issue compelling the FEHC to dismiss the accusation. The FEHC appealed.

There being no prior case construing the term "regularly employing," the parties and the courts below relied on Regulation 7286.5 which was adopted by the FEHC in 1983, administrative construction and decision, and the construction and application of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.; hereafter Title VII).

The FEHC has asserted jurisdiction when an employer has five or more persons on the payroll for each working day, and includes part-time employees--i.e., those who work less than a full shift and those who do not work each day. (Dept. Fair Empl. & Hous. v. Bee Hive Answering Service (1984) No. 84-16, FEHC Precedential Decs. 1984-85, CEB 8, pp. 12-13; Dept. Fair Empl. & Hous. v. Travel Express (1983) No. 83-17, FEHC Precedential Decs. 1982-83, CEB 16, pp. 3-5.)

The Court of Appeal considered these decisions significant in the proper construction of section 12926(c), applying the rule that " '[c]onsistent administrative construction of a statute over many years, particularly when it originated with those charged with putting the statutory machinery into effect, is entitled to great weight....' " (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 491, 156 Cal.Rptr. 14, 595 P.2d 592.) That court also noted the apparent acceptance of the FEHC construction of section 12926 by the Legislature, which had amended the section in 1985 without making any change in subdivision (c).

The Court of Appeal also noted that while Title VII defines employer as a "person ... who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...." (42 U.S.C. § 2000e(b)), federal courts have consistently held that regular part-time employees are properly included as employees within the meaning of that definition. (See Thurber v. Jack Reilly's, Inc. (1st Cir.1983) 717 F.2d 633, 634, and cases cited.)

Finally, the court reasoned that a broad reading of section 12926 was required both by the rule that remedial legislation be given a liberal construction to promote its objective (Alford v. Pierno (1972) 27 Cal.App.3d 682, 688, 104 Cal.Rptr. 110) and by the express command of section 12993, subdivision (a) that: "The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof." Public policy required that the statute be construed to "safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination...." (§ 12920.)

II

Plaintiff does not dispute that section 12926(c) is broad enough to encompass employers of part-time employees who work less than a full day or less than the full workweek, but argues that in defining "employer" the regulation makes no reference to persons "on the payroll," and clearly and unambiguously applies only to someone who has five or more employees working each working day. He contends that because the distinction between "full-time" and "part-time" employees refers only to those employees who work all or less than all of the working day (Reg. 7286.5, subd. (b)), employees who work a full day on some but less than all working days of the week are not "regularly" employed.

The dispositive question, however, is whether the FEHC assertion of jurisdiction over plaintiff is authorized by section 12926(c). If so, the regulation as construed and applied by the FEHC, is consistent with the statute. Only if the regulation purported to extend FEHC jurisdiction to persons not within the statutory definition of employer, or if the FEHC misled plaintiff regarding his status, might plaintiff be entitled to relief.

A. Construction of Section 12926(c).

The statutory term "regularly employing" is susceptible of more than one interpretation. Therefore, the court will look to the legislative history of the FEHA (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 96, 255 Cal.Rptr. 670, 767 P.2d 1148) and to administrative construction reasonably contemporaneous with the law's adoption in order to ascertain the intent of the Legislature in using the phrase. (City of Los Angeles v. Public Utilities Com. (1975) 15 Cal.3d 680, 696, 125 Cal.Rptr. 779, 542 P.2d 1371; Wotton v. Bush (1953) 41 Cal.2d 460, 466, 261 P.2d 256.) "Consistent administrative construction of a statute over many years, particularly when it originated with those charged with putting the statutory machinery into effect, is entitled to great weight and will not be overturned unless clearly erroneous." (DiGiorgio Fruit Corp. v. Dept. of Employment (1961) 56 Cal.2d 54, 61-62, 13 Cal.Rptr. 663, 362 P.2d 487.) In construing a statute the court will also consider the purpose of the law and adopt a construction which will further that purpose. (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272.)

The intent of the Legislature when it used the limiting phrase "regularly employing" in the definition of employer is crucial since a regulation which is inconsistent with the statute it seeks to implement is invalid. (Mooney v. Pickett (1971) 4 Cal.3d 669, 679, 94 Cal.Rptr. 279, 483 P.2d 1231; Morris v. Williams (1967) 67 Cal.2d 733, 748, 63 Cal.Rptr. 689, 433 P.2d 697; ...