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City of Moorpark v. Superior Court of Ventura County8/17/1998
th at p. 1095.) Therefore, when the constitutional provision or statute articulating a public policy also includes certain substantive limitations in scope or remedy, these limitations also circumscribe the common law wrongful discharge cause of action. Stated another way, the common law cause of action cannot be broader than the constitutional provision or statute on which it depends, and therefore it "presents no impediment to employers that operate within the bounds of law." (Ibid.) For example, in Jennings, we noted that the FEHA does not apply to employers of fewer than five employees (Gov. Code, § 12926, subd. (d)), and therefore we found no fundamental public policy against age discrimination by these employers. (Jennings v. Marralle, supra, 8 Cal.4th at pp. 135-136; see also Reno v. Baird (1998) 18 Cal.4th 640, 663-664.)
As in Stevenson, " hree of the four requirements [of a policy that can support a common law wrongful discharge claim] are not reasonably subject to dispute in this case." (Stevenson, supra, 16 Cal.4th at p. 894.) First, the FEHA clearly delineates a policy against disability discrimination in employment-at least in the case of employers of five or more employees. (Gov. Code, §§ 12940, subd. (a), 12926, subd. (d).) Moreover, the FEHA is just one expression of a much broader policy against disability discrimination that appears in a variety of legislative enactments. (See, e.g., Civ. Code, §§ 51, 54 [barring disability discrimination in public accommodations]; Gov. Code, §§ 11135 [barring disability discrimination in state-funded programs], 19230, subd. (a) [declaring state policy to encourage disabled persons to participate in the social and economic life of the state], 19230, subds. (b), (c), 19702 [barring disability discrimination in state civil service employment].) Second, the policy " `inures to the benefit of the public' " (Stevenson, supra, 16 Cal.4th at p. 894) because (1) any member of the public may develop a disability and become the victim of disability discrimination, (2) the public at large benefits from the productivity of disabled employees, and (3) any type of invidious discrimination " `foments . . . strife and unrest.' " (Id. at p. 895.) Third, the policy against disability discrimination has been included in the FEHA since July 1, 1974, and therefore is well established. (Stats. 1973, ch. 1189, §§ 6, 9, pp. 2501-2502.)
Accordingly, we turn to whether the policy against disability discrimination is "substantial and fundamental." Disability discrimination is indistinguishable in many ways from race and sex discrimination. Specifically, it can "attack the individual's sense of self-worth in much the same fashion as race or sex discrimination." (Stevenson, supra, 16 Cal.4th at p. 896.) Nevertheless, an employer may have valid reasons to treat disabled employees differently than nondisabled employees, and the FEHA recognizes this fact by expressly providing that it does not "subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations . . . ." (Gov. Code, § 12940, subd. (a)(1).)
But this caveat does not lead us to conclude that the policy against disability discrimination is not "substantial and fundamental." Even in the case of race, sex, and age discrimination, the FEHA does not prohibit discrimination that is "based upon a bona fide occupational qualification." (Gov. Code, § 12940.) Similarly, our opinions articulating "substantial and fundamental" policies against sex and age discrimination use the
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