Opinion
KENNARD, J. California statutory law prohibits employers from discriminating against older workers (statutorily defined as workers over the age of 40) because of their age. Specifically, the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) makes it “an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action.” (Id., § 12941, subd. (a).)1 The FEHA defines an “employer” as a person “regularly employing five or more persons.” (Id., § 12926, subd. (d).)
[885]In Jennings v. Marralle (1994) 8 Cal.4th 121 [32 Cal.Rptr.2d 275, 876 P.2d 1074] (Jennings), we held that an older worker who has been discharged because of age by an employer having fewer than five workers (and thus not subject to the age discrimination prohibition of the FEHA) may not bring a tort claim for wrongful discharge in violation of public policy. But we specifically left for future determination the question whether an older worker may assert such a common law claim against an employer with five or more workers. (Id. at p. 130.) The issue we left open in Jennings we will decide here.
We conclude that, as applied to employers regularly employing five or more workers, the policy prohibiting employment discrimination against older workers satisfies each of the criteria this court has established as necessary to support a common law action for tortious wrongful discharge: The policy has been articulated in a statute (the FEHA), benefits society at large, is “substantial” and “fundamental,” and was well established at the time of the discharge here. We further conclude that, because the FEHA expressly does not preempt any common law tort claims, the FEHA’s age discrimination remedies are not exclusive and do not bar a tort claim for wrongful discharge in violation of the public policy against age discrimination.
I. Facts and Procedural History
Because this matter comes to us on demurrer, we take the facts from plaintiff’s complaint, the allegations of which are deemed true for the limited purpose of determining whether plaintiff has stated a viable cause of action. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747 [7 Cal.Rptr.2d 808, 828 P.2d 1195].)
When she was discharged at the age of 60, plaintiff Joan Stevenson (Stevenson) had worked as an employee of real party in interest Huntington Memorial Hospital (the Hospital) for over 30 years, performing her job competently and receiving commendations and pay increases. During 1992, shortly before her discharge, Stevenson had been on a medical leave of absence approved by the Hospital. According to the Hospital’s personnel policies and procedures manual, upon return from an approved medical leave of absence for occupational or nonoccupational injury or illness an employee [886]is guaranteed reinstatement to the same job classification and shift. The manual further states that if it is “not possible for business reasons to guarantee reinstatement to the same job classification and shift, an employee will be reinstated to any available job . . . which, in the judgment of the hospital, the employee is qualified to perform” and “will be given the opportunity to be reassigned to that same job classification and shift when next available.”
On November 6, 1992, the Hospital informed Stevenson that her right to reinstatement would be guaranteed until December 31, 1992. On an unspecified day during November 1992, Stevenson notified the Hospital that she was ready to return to work. At that time, the Hospital told Stevenson that she would not be allowed to return to her original job classification and shift, and it denied her reinstatement “to another job classification and shift with opportunity for later reassignment to her original job classification and shift.”
The Hospital terminated Stevenson’s employment “some time after December 31, 1992.” It did so “because of [Stevenson’s] age and to deny her the opportunity to obtain benefits to which she was entitled and eligible as a 30-year employee.”
On December 30, 1993, Stevenson filed a wrongful termination action against the Hospital. Her first amended complaint, which is the pleading at issue here, contains allegations grouped into four alleged causes of action: (1) breach of employment contract; (2) wrongful discharge in violation of a public policy against terminating an employee for taking an approved medical leave; (3) wrongful discharge in violation of a public policy against age discrimination; and (4) breach of the implied covenant of good faith and fair dealing.
The Hospital demurred to Stevenson’s first amended complaint in its entirety. Regarding the first and fourth causes of action (the contract claims), the Hospital asserted that Stevenson had not sufficiently alleged the existence of a written, oral, or implied contract. As to the second and third causes of action (the tort claims), the Hospital maintained that fundamental public policy was not violated by either age discrimination in employment or termination of employment for taking medical leave. These tort claims, according to the Hospital, were also barred because Stevenson had not exhausted her statutory remedies under the FEHA.
The trial court overruled the Hospital’s demurrer with respect to the contract claims. As to the tort claims for wrongful discharge in violation of [887]fundamental public policy, the trial court sustained the demurrer without leave to amend. Stevenson petitioned the Court of Appeal for a writ of mandate to set aside this latter part of the trial court’s order.
The Court of Appeal issued an alternative writ but ultimately denied Stevenson’s petition. The court devoted a large portion of its opinion to the central question of whether Stevenson’s wrongful discharge claim was supported by a fundamental public policy against age discrimination in employment. Although recognizing that we had expressly left this issue open in Jennings, supra, 8 Cal.4th 121, the Court of Appeal nonetheless viewed the logic of Jennings as leading ineluctably to the conclusion that age discrimination in employment does not violate any fundamental public policy of this state, no matter how many employees an employer regularly employs. The Court of Appeal ended its opinion by “respectfiilly urg[ing] the Supreme Court to explore further this troubling area of the law at its next opportunity.” We granted Stevenson’s petition for review.2
II. Discussion
A. Origins of the Tortious Discharge Claim
In California, an employment relationship may generally be terminated by either party “at will.”3 This means that, unless they agree otherwise, either party may terminate the employer-employee relationship without cause. (Lab. Code, § 2922.) On occasion, employers have abused the at will relationship by discharging employees for reasons contrary to public policy as expressed in statutory or constitutional mandates. In response, courts have created an exception to, or qualification of, the at will employment principle. The exception is this: An employer may not discharge an at will employee for a reason that violates fundamental public policy. This exception is enforced through tort law by permitting the discharged employee to assert against the employer a cause of action for wrongful discharge in violation of fundamental public policy.
[888]The first California appellate court decision to recognize a tortious discharge claim was Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 [344 P.2d 25] (Petermann). In Petermann, the plaintiff sued his employer after he was discharged for refusing to perjure himself during an investigative hearing before the Legislature. The trial court granted the employer’s motion for summary judgment based on the parties’ at will employment relationship. (Id. at p. 187.) The Court of Appeal reversed, stating: “It would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge an employee ... on the ground that the employee declined to commit perjury.” (Id. at pp. 188-189.) The Petermann court noted that Penal Code section 118, prohibiting perjury, derives from the general principle that “[t]he presence of false testimony in any proceeding tends to interfere with the proper administration of public affairs and the administration of justice.” (Petermann, supra, at p. 188.)
This court first addressed the tortious discharge claim in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314] (Tameny). There, the plaintiff filed a wrongful discharge action alleging that his employer had fired him for refusing to participate in an illegal scheme to fix retail gasoline prices. In his complaint, the plaintiff pleaded both contract and tort theories of wrongful discharge. After the trial court sustained a demurrer without leave to amend as to the tort claims, the plaintiff dismissed the remaining contract claim and appealed from the resulting judgment for the defendant. Citing Petermann, supra, 174 Cal.App.2d 184, we reversed the judgment, holding that a wrongful discharge claim may sound in tort. We declared that “an employer’s obligation to refrain from discharging an employee who refuses to commit a criminal act does not depend upon any express or implied ‘ “promise[s] set forth in the [employment] contract” ’ [citation], but rather reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state’s penal statutes.” (Tameny, supra, 27 Cal.3d 167, 176, italics added.) Tameny removed any doubt about the propriety of a tortious discharge claim based on violations of fundamental public policy, but it left unanswered many questions about the new claim’s scope and legal requirements.
B. Refining the Analysis of Tortious Discharge: Gantt v. Sentry Insurance
This court further defined the framework of the tortious discharge claim in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083 [4 Cal.Rptr.2d 874, 824 P.2d 680] (Gantt). There, the plaintiff was constructively discharged for [889]resisting the employer’s pressures to lie during the investigation of a coworker’s sexual harassment complaint. Recognizing the public policy exception to the general “at will” rule, this court analyzed the types of claims subject to this exception: “Yet despite its broad acceptance, the principle underlying the public policy exception is more easily stated than applied. The difficulty, of course, lies in determining where and how to draw the line between claims that genuinely involve matters of public policy, and those that concern merely ordinary disputes between employer and employee. This determination depends in large part on whether the public policy alleged is sufficiently clear to provide the basis for such a potent remedy.” (Id. at p. 1090.)
Citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669-670 [254 Cal.Rptr. 211, 765 P.2d 373], this court explained that to support a tort action for wrongful discharge, “the policy in question must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer,” and must be not only “fundamental” and “substantial,” but also “well established” at the time of the discharge. (Gantt, supra, 1 Cal.4th 1083, 1090.) This court noted four categories of employee conduct subject to protection under a claim of wrongful discharge in violation of fundamental public policy: “(1) refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of public importance [citations].” (Id. at pp. 1090-1091, fn. omitted.)
Based upon a historical survey of tortious discharge decisions and this court’s reluctance to declare public policy without legislative guidance, this court observed: “A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public.” (Gantt, supra, 1 Cal.4th 1083, 1095; but see also id. at pp. 1101-1104 (conc. & dis. opn. of Kennard, J.).) In the context of a tort claim for wrongful discharge, tethering public policy to specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge: “The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of the law.” (Id. at p. 1095.)
In this manner, this court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy [890]must be supported by either constitutional or statutory provisions. Second, the policy must be “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be “fundamental” and “substantial.”4
C. The FEHA and Tortious Discharge: Rojo v. Kliger and Jennings v. Marralle
Stevenson alleges that fundamental public policy prohibits age discrimination by employers who are subject to regulation under the FEHA. This court has previously discussed the interplay between the FEHA and common law claims, such as wrongful discharge in violation of public policy, in Rojo v. Kliger (1990) 52 Cal.3d 65 [276 Cal.Rptr. 130, 801 P.2d 373] (Rojo) and Jennings, supra, 8 Cal.4th 121. Together with Gantt, supra, 1 Cal.4th 1083, these decisions provide the basis for our analysis here.
Rojo, supra, 52 Cal.3d 65, which this court decided more than one year before Gantt, supra, 1 Cal.4th 1083, was the first decision in which this court addressed a tortious discharge claim for employment discrimination prohibited by the FEHA. The plaintiffs in Rojo sued their former employer, asserting, among other claims, tortious constructive discharge. They alleged that they had been forced to leave their employment to escape their employer’s sexual harassment. The trial court granted summary judgment for the employer, ruling that plaintiffs’ action was barred because they had failed to exhaust their administrative remedies under the FEHA. Disagreeing, we concluded that the FEHA’s remedies for employment discrimination are not exclusive and do not supplant common law claims, that a plaintiff need not exhaust administrative remedies under the FEHA before asserting a common law claim, and that the plaintiffs had pleaded a viable tortious discharge claim because sexual harassment in the workplace violates fundamental public policy. (Rojo, supra, 52 Cal.3d 65, 70-71.)
We began our analysis with a description of the “salient features” of the FEHA:
“The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab. Code, § 1410 et seq.) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq.) to form the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140 et [891]seq.) The law establishes that freedom from job discrimination on specified grounds, including sex [and age], is a civil right. ([Gov. Code,] § 12921.) It declares that such discrimination is against public policy ([id.,] § 12920) and an unlawful employment practice ([id.,] § 12940). (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213 [185 Cal.Rptr. 270, 649 P.2d 912].) The statute creates two administrative bodies: the Department of Fair Employment and Housing (Department) ([Gov. Code,] § 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination ([id.,] § 12930), and the Fair Employment and Housing Commission (Commission) ([id.,] § 12903), which performs adjudicatory and rulemaking functions ([id.,] § 12935). An aggrieved person may file a complaint with the Department ([id.,] § 12960), which must promptly investigate ([id.,] § 12963). If the Department deems a claim valid, it seeks to resolve the matter—in confidence—by conference, conciliation, and persuasion. ([Id.,] § 12963.7.) If that fails or seems inappropriate, the Department may issue an accusation to be heard by the Commission. ([Id.,] §§ 12965, subd. (a), 12969.) The Department acts as prosecutor on the accusation and argues the complainant’s case before the Commission. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383-1384 [241 Cal.Rptr. 67, 743 P.2d 1323].)
“If no accusation is issued within 150 days after the filing of a complaint, or if the Department earlier determines not to prosecute the case and the matter is not otherwise resolved, the Department must give the complainant a ‘right to sue’ letter. Only then may that person bring a civil suit ‘under this part.’ ([Gov. Code,] § 12965, subd. (b); Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1384; Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 213-214.)
“The broad goal of the FEHA is set forth at [Government Code] section 12920, which states in pertinent part: ‘It is hereby declared as the public policy of this state that it is necessary 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.’ ” (Rojo, supra, 52 Cal.3d 65, 72-73, fn. omitted.)
Concluding that the Legislature had not made the FEHA’s employment discrimination remedies exclusive, we quoted an earlier decision of this court: “ ‘The FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination . . . . ([Gov. Code,] § 12993, subd. (a).)’ ” (Rojo, supra, 52 Cal.3d 65, [89274]-75, quoting State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 431 [217 Cal.Rptr. 16, 703 P.2d 354].) We agreed that the wording of the FEHA clearly reflected the Legislature’s intent to “amplify, not abrogate, an employee’s common law remedies for injuries relating to employment discrimination.” (Rojo, supra, 52 Cal.3d 65, 75.)
Holding that the plaintiffs in Rojo possessed a valid tortious discharge claim, we concluded that sexual harassment violates fundamental public policy. Citing Foley v. Interactive Data Corp., supra, 47 Cal.3d 654, we found that the state Constitution (Cal. Const., art. I, § 8) declared a fundamental public policy against sex discrimination in employment (Rojo, supra, 52 Cal.3d 65, 89-90), and that this fundamental public policy “inured” to the benefit of the public at large and was firmly established at the time of the plaintiffs’ discharge (id. at pp. 90-91). Because the importance of the public interest that the policy against sexual harassment served seemed self-apparent, we provided no detailed support for our conclusion that the policy is fundamental: “No extensive discussion is needed to establish the fundamental public interest in a workplace free from the pernicious influence of sexism.” (Id. at p. 90, italics omitted.)
Because the California Constitution amply established the existence of a fundamental public policy against sex discrimination in employment, we did not consider whether the same public policy was also independently established by the FEHA’s prohibition against sex discrimination in employment. Thus, Rojo, supra, 52 Cal.3d 65, although it does define important aspects of the relationship between the FEHA and common law wrongful discharge claims, did not expressly decide whether the FEHA may itself be a source of fundamental public policy.
Jennings, supra, 8 Cal.4th 121, a post-Gantt decision, examined whether the FEHA’s prohibition against age discrimination in employment sufficiently established a fundamental public policy against such discrimination for purposes of a wrongful discharge claim against an employer who was statutorily exempt from that same FEHA prohibition. There, an employee allegedly terminated because of her age sued her employer for wrongful discharge in violation of fundamental public policy. The employee had no statutory claim under the FEHA because her employer did not regularly employ five or more workers. (See Gov. Code, § 12926, subd. (d) [defining “employer” as a person “regularly employing five or more persons”].)
Central in Jennings was the scope of the fundamental public policy exception to the “at will” employment rule. Citing Gantt, supra, 1 Cal.4th [893108]3, this court affirmed that, to support a tortious wrongful discharge claim, a fundamental public policy must be grounded on either constitutional or statutory provisions. (Jennings, supra, 8 Cal.4th 121, 130.) To determine whether this state has a fundamental public policy against age discrimination in employment, we considered the FEHA, prior statutory references to age discrimination, and relevant case law. (Id. at pp. 130-135.)
We noted that the FEHA’s prohibition of employment discrimination against older workers was unambiguous: “The FEHA is a statute which clearly states a public policy against discrimination on the basis of age in employment.” (Jennings, supra, 8 Cal.4th 121, 130.) But we observed also that the Legislature had not extended this public policy to all employers: “The FEHA gives plaintiff no remedy as defendant does not regularly employ five or more persons.” (Ibid.)
Because the FEHA could not provide the necessary articulation of public policy against age discrimination by employers having fewer than five employees, we examined other possible legislative sources of this policy. As we observed in Jennings, the Legislature has broadly declared a public policy against age discrimination in the workplace in Unemployment Insurance Code section 2070, which provides: “It is the public policy of the State of California that manpower should be used to its fullest extent. . . . Accordingly, use by employers ... of arbitrary and unreasonable rules which bar or terminate employment on the grounds of age offend[s] the public policy of this State.” (See Jennings, supra, 8 Cal.4th 121, 130-131.) We concluded, however, that Unemployment Insurance Code section 2070 could not provide a sound basis for a fundamental public policy against age discrimination by small-scale employers because it had originally been coupled with enforcement provisions that contained an exclusion for employers having fewer than six employees.5 (Jennings, supra, 8 Cal.4th 121, 132.) Nor could we find any other statutory prohibition against age discrimination outside the FEHA. (Ibid.)
Next, we observed that exclusion of small-scale employers from the ambit of the FEHA’s prohibitions serves two purposes: “ ‘relieving the administrative body of the burden of enforcement where few job opportunities are [894]available, and . . . keeping the agency out of situations in which discrimination is too subtle or too personal to make effective solutions possible.’ ” (Jennings, supra, 8 Cal.4th 121, 132-133, quoting Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 240 [5 Cal.Rptr.2d 782, 825 P.2d 767], italics added by Jennings.) We viewed these purposes as inconsistent with an intent by the Legislature to establish or authorize a common law cause of action, to be asserted against both large- and small-scale employers, for wrongful discharge in violation of a public policy against age discrimination.
We summarized our conclusions this way: “While the FEHA includes age among the categories protected by public policy against discrimination in employment, it does not make discrimination by an employer of less than five persons unlawful. Employers of four or fewer persons are exempt under the FEHA and no other law makes discrimination on the basis of age unlawful. It would be unreasonable to expect employers who are expressly exempted from the FEHA ban on age discrimination to nonetheless realize that they must comply with the law from which they are exempted under pain of possible tort liability. We do not ascribe such a purpose to the Legislature.” (Jennings, supra, 8 Cal.4th 121, 135-136.)
In drawing this conclusion, we explicitly left open the question of whether fundamental public policy generally prohibits age discrimination in employment: “Whether discrimination in employment on the basis of age violates a ‘fundamental’ public policy has not been resolved by this court. We need not decide that question here since the ‘public policy’ on which plaintiff relies is not applicable to defendant. He is not an ‘employer’ subject to the age discrimination provisions of the FEHA.” (Jennings, supra, 8 Cal.4th 121, 130.)
Viewing the FEHA provisions relating to age discrimination as a whole, we must now determine whether they support a common law tort action for wrongful discharge in violation of a fundamental public policy against age discrimination by employers who are not statutorily exempt under the FEHA.
D. Age Discrimination by Employers Subject to the FEHA
As discussed earlier, for a policy to support a wrongful discharge claim, it must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental. Three of these four requirements are not reasonably subject to dispute in this case.
[895]First, the policy against age discrimination has been fully delineated by statute. The FEHA not only declares a general policy against age discrimination in employment, but also expressly prohibits discrimination against older workers by employers, like the Hospital, that regularly employ five or more employees.
Second, there can be little doubt that the FEHA’s express policy condemning employment discrimination against older workers is one that benefits the public at large. Because average life expectancy has risen to more than 80 years, most California residents either are now or will become over-40 employees,6 thus creating an extraordinarily broad class of potential victims of age discrimination in employment. Moreover, the pernicious effects of age discrimination in employment are not confined to the employees who are its immediate targets. As the Legislature has recognized in Unemployment Insurance Code section 2070, discrimination against older workers violates the public policy that “manpower should be used to its fullest extent,” thereby depriving society at large of the benefit of valuable human resources. (See also Comment, Expanding the Hostile Environment Theory to Cover Age Discrimination: How Far Is Too Far? (1996) 23 Pepperdine L.Rev. 565, 570 [observing that “age discrimination is harmful to society as a whole” because it “prevents millions of productive older workers from contributing to the national economy . . . .”].) Finally, the practice of age discrimination, like other invidious forms of discrimination, “foments domestic strife and unrest” in the workplace (Gov. Code, § 12920), making for a more stressful and ultimately less productive work environment.
Third, the FEHA’s policy against age discrimination in employment was well established when the Hospital discharged Stevenson. As noted earlier, the FEHA has protected older workers from employment discrimination since its enactment in 1980, and the statutory predecessors of its age discrimination provisions had previously been in effect continuously since 1961.
There remains only the question whether the FEHA’s express prohibition against age discrimination in employment is substantial and fundamental. This court has not articulated a test for determining when a public policy is sufficiently substantial and fundamental to support a cause of action for tortious wrongful discharge. In this case, however, we have identified certain considerations that lead us to conclude that the FEHA’s policy against age discrimination in employment is indeed fundamental.
The policy against age discrimination is similar in important ways to the policies against race and sex discrimination, policies that are unquestionably [896]substantial and fundamental. Like race and sex discrimination, age discrimination violates the basic principle that each person should be judged on the basis of individual merit, rather than by reference to group stereotypes. Age, like race and sex, is the product of the workings of nature rather than the individual’s free choice; once acquired, the status of being over 40 is as permanent and immutable as race or sex. Age discrimination attacks the individual’s sense of self-worth in much the same fashion as race or sex discrimination. Indeed, age discrimination (or “ageism,” as it is sometimes called) has been defined as “ ‘[a] systematic stereotyping of and discrimination against people because they are old, just as racism and sexism accomplish this with skin color and gender. Old people are categorized as senile, rigid in thought and manner, old-fashioned in morality and skills.’ ” (Whitton, Ageism: Paternalism and Prejudice (1997) 46 DePaul L.Rev. 453, 456, quoting Butler, Dispelling Ageism: The Cross-Cutting Intervention (1989) Annals Am. Acad. Pol. & Soc. Sci., pp. 138-139, fn. 2.)
In the FEHA, the Legislature has recognized that age discrimination in employment is comparable in important ways to sex and race discrimination by declaring all three to be against public policy and by encompassing all three within the same broad prohibition. Because the FEHA’s exception for employers having fewer than five workers applies not only to age discrimination but also to race and sex discrimination, the existence of this exception does not by itself prove that the policy against age discrimination is in any way less substantial and fundamental than the policies against race and sex discrimination.
As this court observed in Jennings, supra, 8 Cal.4th 121, 131-132, the policy against age discrimination in employment by persons having five or more employees has been the law of this state for more than thirty-five years, during which time the Legislature has reaffirmed it at least twice by reenacting the statutory provisions that embody it. From this history, it is reasonable to infer that the policy has proven to have substantial and enduring value.
Further, we observe that the FEHA’s general prohibition against age discrimination in employment is a particular expression of a broader policy against age discrimination that the Legislature has articulated through a wide variety of California code provisions. Stevenson and her amici curiae list over 30 California code sections that prohibit age discrimination or implement a policy against age discrimination in specific areas such as education, health care, land use regulation, and state employment. (See, e.g., Civ. Code, § 51.2 [housing]; Gov. Code, § 11135 [state-funded programs]; id., § 65008 [land use regulation]; Health & Saf. Code §§ 1317, 1317.3, 1365.5 [health [897]care]; Ed. Code, §§ 260, 262, 262.1, 262.2, 66030, 69535 [education]; Gov. Code, §§ 18932, 19700, 19706, 19793 [civil service]; Lab. Code, § 1777.6 [public works contracts]; Unemp. Ins. Code, § 16000 et seq. [employment training for older workers].) These laws provide further evidence that the Legislature regards the policy against age discrimination as important and that this policy is now firmly rooted in California law.
Finally, additional assurance that the policy against age discrimination in employment is substantial and fundamental may be found in the laws of other jurisdictions. Age discrimination in employment has been considered a matter of sufficient gravity to warrant legislative action by the United States Congress through the federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.). And, as amicus curiae American Association of Retired Persons points out, laws against age discrimination in employment have been adopted in 45 other states and the District of Columbia. (See Alaska Stat. § 18.80.220(a)(1); Ariz. Rev. Stat. Ann. § 41-1463; Colo. Rev. Stat. § 8-2-116; Conn. Gen. Stat. § 46a-60(a)(1); Del. Code Ann. tit. 19, § 711(a); D.C. Code Ann. § 1-2512; Fla. Stat. Ann. §§ 760-10, 112.043; Ga. Code Ann. §§ 34-1-2(a), 45-19-20 et seq.; Haw. Rev. Stat. § 378-2; Idaho Code § 67-5909; 775 Ill. Comp. Stat. 5/1-103(Q), 5/2-102; Ind. Code § 22-9-2-2; Iowa Code § 216.6; Kan. Stat. Ann. § 44-1113; Ky. Rev. Stat. Ann. § 344.040; La. Rev. Stat. Ann. § 23:972; Me. Rev. Stat. Ann. tit. 5, § 4572; Md. Ann. Code of 1957, art. 49B, § 16(a); Mass. Gen. Laws Ann. ch. 151B, § 4; Mich. Comp. Laws § 37.2102; Minn. Stat. § 181.81; Mo. Rev. Stat. §213.055; Mont. Code Ann. § 49-2-303; Neb. Rev. Stat. §48-1004; Nev. Rev. Stat. § 613.330; N.H. Rev. Stat. Ann. § 354-A:7; N.J. Stat. Ann. §§ 10:3-1, 10:5-12; N.M. Stat. Ann. § 28-1-7; N.Y. Exec. Law § 296; N.C. Gen. Stat. §§ 126-36, 143-422.2; N.D. Cent. Code § 14-02.4-03; Ohio Rev. Code Ann. § 4112.02; Okla. Stat. tit. 25, § 1302; Or. Rev. Stat. § 659.030; 43 Pa. Cons. Stat. § 955; R.I. Gen. Laws § 28-5-7; S.C. Code Ann. § 1-13-80; Tenn. Code Ann. § 4-21-401; Tex. Lab. Code Ann. § 21.051; Utah Code Ann. § 34-35-6; Vt. Stat. Ann. tit. 21, § 495(c); Va. Code Ann. § 2.1-116.06; Wash. Rev. Code § 49.44.090; W. Va. Code §5-11-9; Wis. Stat. Ann. § 111.322; Wyo. Stat. Ann. § 27-9-105.)
For all these reasons, we are persuaded that the FEHA’s policy against age discrimination in employment is sufficiently substantial and fundamental to support a tort claim for wrongful discharge. We therefore conclude that the FEHA’s policy against age discrimination satisfies each of the four requirements that this court has established as essential to support a common law tort claim for wrongful discharge in violation of public policy.
We now consider certain arguments that the Hospital, those who have submitted briefs as amici curiae in support of the Hospital’s position, and the [898]dissenting opinion have raised against the conclusion that Stevenson may sue the Hospital for wrongful termination in violation of the FEHA’s policy against age discrimination in employment.7
The Hospital argues, first, that a common law wrongful termination claim may not be grounded on the FEHA’s prohibition against age discrimination in employment because the FEHA provides a comprehensive scheme for dealing with discrimination against older workers and therefore the Legislature must have intended that this comprehensive scheme would be exclusive and would preempt common law claims. The Hospital recognizes that this court has reached a contrary conclusion regarding claims based on sex discrimination (see Rojo, supra, 52 Cal.3d 65, 73-82), but it argues that claims based on sex or race discrimination are distinguishable because the public policy against such discrimination had been clearly articulated in the state Constitution when the FEHA was enacted, whereas the public policy [899]against age discrimination has been clearly articulated only in the FEHA and its statutory predecessors. According to the Hospital, the FEHA’s anti-preemption provisions are most reasonably construed as applying only to common law claims that existed before FEHA’s enactment and are independent of its provisions and not to common law claims, like the one at issue here, that are grounded in the FEHA itself.
The Hospital’s argument fails for the reasons stated in this court’s opinion in Rojo. We there framed one of the issues for decision as “whether the FEHA provides the exclusive remedy for injuries arising from discrimination in employment.” (Rojo, supra, 52 Cal.3d 65, 73, fn. omitted.) Notably, we did not limit the issue for decision to whether the FEHA provided the exclusive remedy for employment discrimination because of sex, even though Rojo concerned a claim of sex discrimination. Rather, we addressed the exclusive remedy issue in relation to employment discrimination claims generally.
Turning for guidance to the FEHA’s provisions, this court found that “[t]he meaning of the FEHA is clear in this regard.” (Rojo, supra, 52 Cal.3d 65, 73.) We quoted Government Code section 12993, subdivision (a): “ ‘Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.’ ” (Rojo, supra, at p. 73; first italics added in Rojo, second italics added here.) We noted that the “ ‘law’ of this state” includes the common law and that the common law provides various remedies for employment discrimination. (Id. at p. 74.) We concluded that “the Legislature has manifested an intent to amplify, not abrogate, an employee’s common law remedies for injuries relating to employment discrimination.” (Id. at p. 75.)
We next turned our attention to subdivision (c) of Government Code section 12993, providing that “it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state . . . .” We concluded that this provision indicates “a legislative intent to preempt only local law” and “provides no support for the view that the FEHA was intended to displace state laws relating to employment discrimination.” (Rojo, supra, 52 Cal.3d 65, 78, italics in original.)
We did not alter these conclusions upon consideration of the general rule of statutory construction that “where a statute creates a right that did not [900]exist at common law and provides a comprehensive and detailed remedial scheme for its enforcement, the statutory remedy is exclusive.” (Rojo, supra, 52 Cal.3d 65, 79.) Rather, we found this general rule inapplicable because the FEHA “expressly disclaims any intent to repeal other state laws relating to discrimination, legislative or otherwise” (ibid.), because the right to freedom from invidious employment discrimination existed at common law, and because the FEHA “lacks the comprehensiveness necessary to infer a legislative intent to displace all preexisting or alternative remedies for employment discrimination” (id. at p. 80, italics added).
Finally, observing that the defendant in Rojo had relied on two lines of appellate decisions holding that the FEHA provides the exclusive remedy for injuries caused by employment discrimination, we explained why this reliance was unavailing. (Rojo, supra, 52 Cal.3d 65, 81-82.) We rejected the first line of authority because the courts authoring these decisions had erred by misconstruing subdivision (c) of Government section 12993 as evidencing legislative intent to preempt not only local employment discrimination laws, but also state laws. We rejected the second line of authority because the courts authoring these decisions had erroneously invoked the “new right—exclusive remedy” rule of statutory construction, which does not apply to the FEHA. Because amicus curiae California Employment Law Council has evidently misunderstood our discussion of this second line of authority, we quote that discussion in full:
“Illustrative of a second line of cases is Strauss v. A. L. Randall Co. (1983) 144 Cal.App.3d 514 [194 Cal.Rptr. 520]. In Strauss, an age discrimination case, the employee filed a civil suit alleging a common law cause of action for wrongful discharge in violation of public policy. The Court of Appeal affirmed the judgment of dismissal following an order sustaining the defendant’s demurrer. Asserting that no common law remedy for age discrimination predated the FEPA, the court concluded that the Legislature, in creating a new right, intended the statutory remedy to be exclusive. (Id. at p. 520.) ‘ “Where a new right is created by statute, the party aggrieved by its violation is confined to the statutory remedy if one is provided . . . .” [Citations.]’ (Id. at pp. 518-519.)
“In determining legislative intent, however, Strauss and its progeny needlessly invoked the ‘new right—exclusive remedy’ doctrine of interpretation. Because the FEHA, like its predecessor the FEPA, expressly disclaims any intent to displace other relevant state laws, no resort to interpretative aids is required and the existence vel non of a preexisting cause of action for the particular discrimination is irrelevant. While the FEHA conferred certain new rights and created new remedies, its purpose was not to narrow, but to [901]expand the rights and remedies available to victims of discrimination. ([Gov. Code,] §§ 12993, 12920.) Under the act, plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation.” (Rojo, supra, 52 Cal.3d 65, 81-82, italics added, fn. omitted.) In a footnote, we declined to express any opinion concerning the result in Strauss v. A. L. Randall Co. (1983) 144 Cal.App.3d 514 [194 Cal.Rptr. 520] (Strauss), because the “age discrimination cause of action pleaded” in that case was not before us. (Rojo, supra, 52 Cal.3d 65, 82, fn. 10.)
Despite our clear holding that the FEHA does not preempt any state common law remedies for employment discrimination, whether preexisting or not, despite our express conclusion that the “new right—exclusive remedy” rule of statutory construction has no application to the FEHA, and despite our express disapproval of the Court of Appeal’s invocation of that rule in Strauss, supra, 144 Cal.App.3d 514, amicus curiae California Employment Law Council has fashioned its argument in reliance on the reasoning of Strauss and in particular on its application of the “new right— exclusive remedy” rule of construction to a claim for wrongful discharge in violation of the public policy against age discrimination. The same argument is echoed by the Hospital and by amicus curiae The Employers Group.
The Hospital and its amici curiae supporters offer essentially two reasons for disregarding this court’s carefully considered and plainly articulated conclusion in Rojo, supra, 52 Cal.3d 65, that the FEHA does not preclude any common law tort remedies, whether preexisting or not. First, they point to the Rojo footnote declining to express any opinion concerning the result in Strauss, supra, 144 Cal.App.3d 514. Because the Court of Appeal in Strauss declined to recognize a common law tort claim for wrongful discharge in violation of the public policy against age discrimination, the Hospital argues that our failure to disapprove that result implies doubts about the validity of a common law wrongful discharge claim grounded on the FEHA’s policy against age discrimination. Second, they distinguish Rojo because the public policy against sex discrimination at issue there was grounded in the state Constitution, whereas the public policy against age discrimination is grounded in the FEHA itself. Neither of these proffered reasons withstands scrutiny.
As we have fully explained above, a policy may support a wrongful discharge claim only if it satisfies four requirements. The policy must be (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the [902]discharge; and (4) “substantial” and “fundamental.” In Rojo, the policy that the plaintiffs relied upon in support of their common law wrongful discharge claim was the policy against sex discrimination in employment. To determine the validity of that claim, we considered, among other things, whether the policy against sex discrimination in employment was sufficiently substantial and public to support the claim. In a part of the opinion entitled “Tortious Discharge Against Public Policy,” this court concluded that it was. (Rojo, supra, 52 Cal.3d 65, 88-91.) That part of our analysis was limited to employment discrimination on the basis of sex. We did not have occasion to consider, and did not consider, whether other prohibited forms of employment discrimination, such as discrimination on the basis of age, would also support a common law wrongful discharge claim. Because different forms of employment discrimination may be prohibited for different reasons and because the policies underlying different prohibitions may vary in strength, the conclusion that a prohibition of one form of employment discrimination will support a common law wrongful discharge claim does not necessarily mean that a prohibition of a different form of employment discrimination will do likewise. In declining to express any opinion on the result in Strauss, supra, 144 Cal.App.3d 514, we were merely recognizing this fact. Our decision in Rojo makes this plain. We said that we expressed no opinion concerning the result in Strauss because the “age discrimination cause of action pleaded in th[at] case[] is [not] before us.” (Rojo, supra, 52 Cal.3d 65, 82, fn. 10.)
In Rojo, this court devoted a separate part of the opinion, entitled “FEHA Preclusion of Common Law Claims,” to the question whether the FEHA preempted common law remedies for employment discrimination. (Rojo, supra, 52 Cal.3d 65, 73-82.) In that part of the opinion, we did not confine our discussion to claims of employment discrimination on the basis of sex. Rather, we considered the broader question of whether the FEHA preempted any common law tort claims for any employment discrimination. As noted above, we concluded that “the FEHA . . . expressly disclaims any intent to displace other relevant state laws,” that “the existence vel non of a preexisting cause of action for the particular discrimination is irrelevant,” and that “plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation.” (Id. at p. 82, italics in original.) Thus, our failure to expressly disapprove the result in Strauss, supra, 144 Cal.App.3d 514, in no way suggests that the FEHA may be interpreted as precluding or preempting an older worker’s common law cause of action for wrongful discharge in violation of the public policy against age discrimination.
Equally unpersuasive is the Hospital’s attempt to distinguish Rojo, supra, 52 Cal.3d 65, on the basis that the public policy at issue there was grounded [903]in the state Constitution rather than in the FEHA itself. Our conclusion that the FEHA was intended “to amplify, not abrogate, an employee’s common law remedies for injuries relating to employment discrimination” (id. at p. 75) was based primarily on the language of Government Code section 12993, subdivision (a), stating that “[njothing contained in this part shall be deemed to repeal. . . any other law of this state relating to discrimination because of [among other things] age.” Nothing in this statutory language supports a distinction between common law claims based on policies articulated outside the FEHA and common law claims based on policies articulated within the FEHA itself. The Hospital’s argument would require us to read into this clear language a qualification that the Legislature did not see fit to include. We decline to do so.
Similarly, nothing in the language of this court’s Rojo opinion supports the proposed distinction between public policies articulated within and outside the FEHA. To the contrary, we carefully explained that it is irrelevant whether a particular common law claim preexisted the FEHA and we excluded distinctions of the kind that the Hospital here suggests by stating that under the FEHA “plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation.” (Rojo, supra, 52 Cal.3d 65, 82, new italics added, original italics omitted.)
The Hospital’s remaining argument essentially is a variation on the first. The Hospital argues that even if, as we have concluded, an older worker may ground a common law wrongful termination claim in the FEHA’s prohibition against age discrimination in employment, Stevenson may not rely on the FEHA to support such a claim because she did not exhaust her administrative remedies under the FEHA. As the Hospital acknowledges, this court has rejected the contention that a plaintiff must exhaust administrative remedies under the FEHA to maintain a common law tort claim of wrongful discharge in violation of public policy. (Rojo, supra, 52 Cal.3d 65, 88.) But the Hospital contends that this holding does not control here because it was made in the context of a claim of sex discrimination and the policy against sex discrimination is embodied in the state Constitution, whereas Stevenson relies exclusively on the FEHA as the source of the public policy against age discrimination in employment. According to the Hospital, Stevenson may not rely on the FEHA’s public policy provisions to support her claim unless she establishes that the FEHA applies to her, and the Hospital asserts that the FEHA does not apply to persons who do not exhaust its administrative remedies. The Hospital attempts to draw support for this argument from this court’s reasoning in Jennings, supra, 8 Cal.4th 121, in which we held that the plaintiff could not rely on the FEHA’s articulation of a public policy against age discrimination because that policy did not apply to the plaintiff’s [904]employer, who qualified under the statutory exemption for employers who regularly employed fewer than five workers.
This argument ignores the logic of Jennings, supra, 8 Cal.4th 121. There, this court declined to permit a common law tort action for age discrimination to be asserted against an employer with fewer than five employees because the public policy against such discrimination was effectively articulated only in the FEHA, and there it was coupled with an exemption for employers having fewer than five workers. Because of the statutory exemption, this court was unable to conclude that the Legislature intended the public policy against age discrimination in employment to apply to this group of employers. Also, employers with fewer than five workers lacked reasonable notice that their conduct could subject them to liability.
Neither of these considerations applies here. Because the Hospital has more than four workers, the Legislature clearly intended the policy against age discrimination to apply to it, and therefore recognizing a common law cause of action would not be inconsistent with an implied legislative determination regarding the proper scope of liability. In addition, the Hospital may not reasonably claim lack of notice that age discrimination would result in liability, nor is it the beneficiary of any statutory grant of immunity. As an over-40 worker, Stevenson belongs to the class of persons for whom the Legislature intended to afford a remedy for age discrimination in employment. That she failed, for whatever reason, to avail herself of those remedies does not mean either that the policy against age discrimination in employment does not apply to her or that the Hospital did not engage in conduct prohibited by the FEHA when it terminated her employment because of her age. Because the FEHA’s policy against age discrimination in employment applies to both Stevenson and the Hospital, she may assert her common law wrongful termination claim without exhausting her administrative remedies under the FEHA. (Rojo, supra, 52 Cal.3d 65, 88.)
Stated more analytically and precisely, when a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition, but the common law claim is not subject to statutory procedural limitations affecting only the availability and scope of nonexclusive statutory remedies. Under the rule as thus stated, a common law tort claim for wrongful termination in violation of the public policy against age discrimination articulated in the FEHA is subject to the FEHA’s exemption for small-scale employers because that exemption is a limitation affecting the nature and scope of the age discrimination prohibition. Simply put, [905]employers regularly employing fewer than five persons cannot violate the FEHA’s prohibition against age discrimination in employment because that prohibition does not apply to them. So too, a worker must be “over the age of 40” at the time of the alleged discrimination to rely upon the FEHA’s policy against age discrimination in employment because the over-40 limitation of the FEHA (Gov. Code, § 12941, subd. (a)) is a statutory limitation affecting the nature and scope of the statutory prohibition.
By contrast, a common law tort claim for wrongful termination in violation of the public policy against age discrimination articulated in the FEHA is not subject to the FEHA’s requirement that an employee exhaust administrative remedies before seeking judicial relief because that requirement does not affect the nature and scope of the prohibition but only the availability and scope of the statutory remedies. An employee’s post-termination failure to exhaust administrative remedies has no bearing on whether the termination violated the public policy expressed through the statutory prohibition against age discrimination, and thus the employee’s post-termination administrative default does not preclude assertion of a nonstatutory tort claim for wrongful termination in violation of public policy. .
In her dissent, Justice Brown urges this court to adopt an entirely new and additional requirement for the tort of wrongful discharge in violation of public policy—that the wrongfully discharged employee have no judicial remedy under the FEHA or under any similar statutory scheme. The dissent argues that this additional requirement is necessary to prevent employees who are the victims of prohibited employment discrimination from bypassing the administrative procedures under the FEHA (or similar statutes) because, the dissent asserts, forcing discharged employees to subject their claims to the FEHA’s administrative process is essential to further the purposes of the FEHA and to maintain the proper balance between the interests of employers and employees.
As is evident from this summary of its position, the dissent’s real quarrel is not with our holding in this case, but with this court’s previous decision in Rojo, supra, 52 Cal.3d 65, and, even more fundamentally, with the Legislature itself.
In Rojo, supra, 52 Cal.3d 65, this court, after a careful examination of the FEHA as a whole and in particular its administrative scheme for processing employment discrimination complaints, unanimously held that the FEHA does not preempt any common law claims for employment discrimination and that a wrongfully discharged employee need not exhaust the FEHA’s administrative remedies before bringing a non-FEHA wrongful discharge [906]action against the employer. The dissent refuses to accept, and scarcely acknowledges, these holdings of Rojo.
Although the dissent attempts to distinguish Rojo, supra, 52 Cal.3d 65, on the ground that it involved a claim of sex discrimination, not age discrimination (dis. opn., post, at p. 923), the logic of the dissent’s argument does not permit any distinction along these lines. If parallel common law and statutory remedies for employment discrimination on account of race or sex do not undermine the legislative intent underlying the FEHA, then parallel remedies for discrimination against older workers will not do so either. Conversely, if, as the dissent repeatedly asserts, the FEHA’s “carefully crafted scheme” will be “upset” if an age discrimination claimant is permitted to sue for wrongful discharge without first submitting a FEHA administrative claim (dis. opn., post, at p. 916),8 then it must be equally “upset” if a race or sex discrimination claimant does not initiate the FEHA’s administrative process. Thus, acceptance of the dissent’s argument would require this court to overrule Rojo, supra, 52 Cal.3d 65, and to preclude the assertion of any common law tort claim for injuries arising from employment discrimination prohibited under the FEHA.
In support of its position, the dissent cites what may seem to be an impressive number of decisions from other jurisdictions. But an examination of these decisions reveals that they provide little or no assistance on the narrow issue before us in this case. In declining to recognize common law actions for violations of statutory nondiscrimination policy, many of the courts authoring these decisions relied upon the same “new right—exclusive remedy” rule of statutory construction that this court has already found to be inapplicable to the FEHA. (Rojo, supra, 52 Cal.3d 65, 79-81.) In other decisions, the courts restricted the scope of the tort of wrongful discharge in violation of public policy in ways that this court has previously rejected. In none of these decisions did a court find that the antidiscrimination law under consideration contained language that, like subdivision (a) of Government Code section 12993, expressly preserved for the benefit of employees all preexisting or alternative common law claims.
When we held in Rojo, supra, 52 Cal.3d 65, that the FEHA’s employment discrimination remedies are to be in addition to, and not in lieu of, other [907]state law remedies for employment discrimination, we did so because we concluded that the Legislature had intended and required this result through the language of Government Code section 12993. That language dates from the FEHA’s enactment in 1980, and we may presume that in enacting the FEHA the Legislature was aware of our then-recent decision in Tameny, supra, 27 Cal.3d 167, recognizing the tort of wrongful discharge in violation of public policy. (See Jennings, supra, 8 Cal.4th 121, 132, fn. 7.) Thus, we may presume that the Legislature understood that the public policies it articulated in the FEHA, including the policy prohibiting employment discrimination against older workers, could trigger claims under this newly recognized tort. Although it surely has the power to do so, the Legislature did not then, nor has it at any time since, acted to make the FEHA remedies for employment discrimination against older workers exclusive of Tameny claims. Ultimately, it is the Legislature that determines whether the assertion of non-FEHA claims for employment discrimination is inconsistent with or disruptive of the FEHA.
Since this court’s decision in Rojo, supra, 52 Cal.3d 65, construing subdivision (a) of Government Code section 12993 as preserving all preexisting or alternative remedies for employment discrimination, the Legislature has amended that provision three times without altering the language we construed. (Stats. 1993, ch. 1277, § 15; Stats. 1992, ch. 913, § 25; Stats. 1992, ch. 912, § 8.) Under an established rule of statutory construction, the Legislature is presumed, by virtue of its action in amending a previously construed statute without changing the portion that was construed, to have accepted and ratified the prior judicial construction. (In re Malinda S. (1990) 51 Cal.3d 368, 380 [272 Cal.Rptr. 787, 795 P.2d 1244].) Therefore, the recent amendments of Government Code section 12993 have removed any doubt that this court correctly interpreted that provision as one that makes the FEHA’s employment discrimination remedies cumulative and not, as the dissent would prefer, exclusive.
In addition to assaulting this court’s decision in Rojo, supra, 52 Cal.3d 65, and the legislative judgments on which that decision was based, the dissent asserts that the state’s policy against age discrimination should not support a tortious wrongful discharge claim because that policy provides no benefit to the public at large, but is merely special interest legislation for the benefit of discharged older workers. In support of its assertion that the public does not benefit when employers are prevented from discriminating against older workers, the dissent observes that discharging older workers creates job openings for younger workers, that the number of jobs is finite even in an expanding economy, and that allowing discharged older workers to sue their employers for age discrimination imposes a financial burden on businesses. (Dis. opn., post, at pp. 925-926.)
[908]Here too, the dissent engages in second-guessing the Legislature, not only as to whether the policy against discrimination benefits the public generally, but also as to whether the policy against discrimination is a sound and beneficial policy for this state to adopt. On both of these points, the Legislature has clearly spoken. By declaring, in Government Code section 12920, “that the practice of denying employment opportunity and discriminating in the terms of employment” on enumerated grounds, including age, “substantially and adversely affects the interest of employees, employers, and the public in general” (italics added), the Legislature has made a finding of general public benefit that is consistent with, and supportive of, our similar determination in this case. And, by including age discrimination among the prohibited forms of discrimination, the Legislature has determined that whatever burdens this policy imposes on employers or younger workers is outweighed by the benefits of a labor market in which older workers are judged on their abilities, not their age.
Our decision recognizing a tortious discharge claim for older workers discharged because of age imposes no new burdens on California employers because under the FEHA the victims of such discrimination may bring civil actions for compensatory and punitive damages after obtaining a right-to-sue letter. (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221 [185 Cal.Rptr. 270, 649 P.2d 912].) As compared to a statutory FEHA cause of action, a common law wrongful discharge claim does not broaden the scope of prohibited conduct, nor does it expand the array of available remedies for prohibited age discrimination; it merely provides another legal theory on which employees may pursue remedies comparable in all relevant respects to those already available to them under the FEHA. Thus, to whatever extent the threat of civil litigation and liability in damages may serve to discourage employers from firing “an older employee who no longer performs satisfactorily” (dis. opn., post, at p. 925), this threat exists already and is in no way amplified by our holding here. Likewise, because it does not afford any different or expanded penalties for discriminatory conduct beyond those already available under the FEHA, our decision does not upset any “careful balance the Legislature has achieved” (dis. opn., post, at p. 919) or create a “hostile business environment” (dis. opn., post, at p. 917).
At bottom, the dissent appears to question the wisdom of any government policy to inhibit employment discrimination against older workers. But “[o]ur function is not to judge the wisdom of statutes.” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099 [282 Cal.Rptr. 841, 811 P.2d 1025].) Indeed, when this court established that only those public policies that had been articulated in a constitutional or statutory provision could [909]support a wrongful discharge claim, one reason this court gave was “that courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch, ‘lest they mistake their own predilections for public policy which deserves recognition at law.’ [Citation.]” (Gantt, supra, 1 Cal.4th 1083, 1095.) Because no issue has been raised that the Legislature exceeded its constitutional powers when it enacted the FEHA, when it included discrimination against older workers among the prohibited forms of employment discrimination, when it made the FEHA’s remedies for employment discrimination cumulative rather than exclusive, or when it declared that the policy against age discrimination benefits the public at large, our function here is simply to recognize and to implement, not to question, the Legislature’s considered judgments.
III. Conclusion
Aging is a highly complex and variable process. Chronological age alone is not a reliable measure of any individual’s vitality or ability, and many individuals remain robust and productive well past the normal retirement age. Nevertheless, some employers have discriminated against highly qualified older workers solely because of their age, either by not hiring them or by replacing them with younger persons.
To remedy this injustice, the Legislature has afforded displaced older workers statutory remedies under the FEHA. In so doing, the Legislature has expressly declared that the FEHA’s remedies shall be cumulative to all other state law remedies. Those remedies include common law tort claims such as a claim for wrongful discharge in violation of public policy.
We conclude that Stevenson has successfully pleaded a claim for tortious wrongful discharge grounded in the FEHA’s provisions prohibiting discrimination against older workers because of their age. The policy against age discrimination in employment, as applied to over-40 workers and to employers who regularly employ more than 4 workers, is delineated by statute, benefits the public at large, and is substantial and fundamental. Furthermore, this public policy was well established at the time of Stevenson’s discharge. Because the Legislature has expressly declared that the FEHA’s statutory remedies are cumulative rather than exclusive, assertion of a common law tort claim for wrongful discharge in violation of the public policy against age discrimination as articulated in the FEHA is consistent with the legislative intent underlying the FEHA.
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court with directions to issue a writ of mandate commanding the superior court to vacate its order insofar as it sustains the Hospital’s [910]demurrer to Stevenson’s claim for wrongful discharge in violation of the public policy against age discrimination in employment and to enter a new order overruling the demurrer as to that claim.
George, C. J., Mosk, J., Werdegar, J., and Chin, J., concurred.
In full, Government Code section 12941 provides:
“(a) It is an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action. This section shall not be construed to make unlawful the rejection or termination of employment where the individual applicant or employee failed to meet bona fide requirements for the job or position sought or held, or to require any changes in any bona fide retirement or pension programs or existing collective-bargaining agreements during the life of the contract, or until January 1, 1980, whichever occurs first, nor shall this section preclude such physical and medical examinations of applicants and employees as an employer may make or have made to determine fitness for the job or position sought or held.
“Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under [885]an established recruiting program from high schools, colleges, universities, and trade schools shall not, in and of themselves, constitute a violation of this section.
“(b) This section shall not limit the right of an employer, employment agency, or labor union to select or refer the better qualified person from among all applicants for a job. The burden of proving a violation of this section shall be upon the person or persons claiming that the violation occurred.”
As stated in the petition for review, the issue presented here is “[w]hether age discrimination in employment violates a fundamental public policy thereby permitting a common law cause of action for tortious wrongful discharge.” Stevenson has abandoned her second cause of action—wrongful discharge in retaliation for taking an approved medical leave.
Firmly entrenched in traditional American common law, the at will doctrine is a particular application of the more general doctrine of freedom to contract. An 1877 law treatise put it this way: “ ‘With us, the rule is inflexible that a general or indefinite hiring is, prima facie, a hiring at will; and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. . . . [A]n indefinite hiring ... is determinable at will by either party.’ ” (Comment, The Public Policy Exception to the Employment-at-Will Doctrine: Its Inconsistencies in Application (1994) 68 Tul. L.Rev. 1583, 1586, quoting Wood, A Treatise on the Law of Master and Servant (1877) § 134, p. 272.)
This court has not articulated any distinction between the terms “substantial” and “fundamental” as used in this context; accordingly, we treat them as constituting a single requirement.
As this court explained in Jennings, the Legislature enacted Unemployment Insurance Code section 2070 in 1961, together with section 2071 and former section 2072 of the same code. (Stats. 1961, ch. 1623, § 1, p. 3517.) Former section 2072 made it unlawful to discharge an employee between the ages of 40 and 64 solely on the ground of age, but section 2071 limited this prohibition to employers with at least 6 employees. In 1972, the Legislature repealed section 2072 and reenacted it, with minor alterations, as former section 1420.1 of the Labor Code, while at the same time, in former section 1413 of the Labor Code, limiting this prohibition to employers with five or more employees. (Stats. 1972, ch. 1144, § 1, p. 2211.) These Labor Code provisions were in turn repealed and replaced by the current provisions of the FEHA. (See Jennings, supra, 8 Cal.4th 121, 131-132.)
As we have observed, the FEHA’s age discrimination prohibition applies only to employees “over the age of 40.” (Gov. Code, § 12941, subd. (a).)
In his concurring opinion, Justice Baxter states that he does not agree that a public policy articulated in the FEHA may supply the public policy element of a common law wrongful discharge claim because this “view is inconsistent with our recognition in Rojo v. Kliger (1990) 52 Cal.3d 65, 79, 81-82 [276 Cal.Rptr. 130, 801 P.2d 373]) that the FEHA was not intended to create new common law remedies outside the structure of the FEHA, but does preserve all preexisting common law remedies.” (Conc, opn., post, at p. 910.)
Justice Baxter is correct that in Rojo this court held that the FEHA preserves all preexisting common law remedies. But we stated that it preserved not only remedies that were “preexisting” but also those that were “alternative” (Rojo, supra, 52 Cal.3d 65, 80) and that under the FEHA “plaintiffs are free to seek relief for injuries arising from discrimination in employment under any state law, without limitation” (id. at p. 82, original italics). Nowhere in Rojo did this court state that the FEHA “was not intended to create new common law remedies.” Such an observation would be beside the point, in any event, because common law remedies are established by court decision, not by statute. The common law claim for wrongful discharge in violation of public policy is no exception, having been established by the court decisions we have previously described in this opinion. One of the requirements of this cause of action is a public policy that has been articulated in a statute or a constitutional provision. (Gantt, supra, 1 Cal.4th 1083, 1095.) The relationship between a statute articulating public policy and a common law wrongful discharge claim is similar to the relationship, under the negligence per se doctrine (see Evid. Code, § 669), between a statute articulating a standard of care and a common law negligence claim. In both instances, the statute is used to establish the common law claim, and in both instances the purposes underlying the statute are relevant, but in neither instance can it be said that the statute “created” the common law claim or that a legislative intention to “create” a common law claim is essential or even relevant. The Legislature, of course, remains free to abrogate judicial decisions establishing common law claims or defining their elements.
Justice Baxter states that he concurs in the judgment here because a “fundamental public policy against discrimination in employment on the basis of age independent of the FEHA has existed in Unemployment Insurance Code section 2070 since 1961 . . . .” (Conc, opn., post, at p. 910.) It is unclear, however, what advantage Justice Baxter perceives in tracing the public policy against age discrimination to the FEHA’s 1961 statutory antecedents in the Unemployment Insurance Code, since Justice Baxter does not explain how the Legislature’s intent in enacting those provisions was any more or less consistent with a common law wrongful discharge claim than its intent in enacting the FEHA.
The dissent is wrong in its assertion that recognizing a common law claim for wrongful discharge in violation of a public policy articulated in the FEHA “effectively forecloses any possibility of ‘conference, conciliation, [or] persuasion’ to resolve the dispute or rectify the discriminatory practice (§ 12931).” (Dis. opn., post, at p. 916.) The FEHA’s administrative process and administrative remedies remain available to any employment discrimination claimant who elects to invoke them; such a claimant is not forced to choose between the common law claim and the FEHA’s administrative remedies.