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City of Moorpark v. Superior Court of Ventura County8/17/1998
tion law, to add the language italicized below: "(a) The administrative director shall establish and effect within the Division of Workers' Compensation a continuing program to provide information and assistance concerning the rights, benefits, and obligations of the workers' compensation law to employees and employers subject thereto. The program shall include, but not be limited to, the following: [ ] . . . . [ ] (2) The preparation, publishing, and as necessary, updating, of a pamphlet advising injured workers of their basic rights under workers' compensation law, and informing them of rights under the Americans with Disabilities Act, and the provisions of the Fair Employment and Housing Act relating to individuals with a disability. . . ." (See Stats. 1993, ch. 121, § 23.) The resulting pamphlet contains a detailed Discussion of both the ADA and FEHA proscriptions against disability discrimination.
The legislative mandate that "injured workers" be informed of "rights under the Americans with Disabilities Act, and the provisions of the Fair Employment and Housing Act relating to individuals with a disability" (Lab. Code, § 139.6, subd. (a)(2)) presupposes that, at least under certain circumstances, they enjoy such rights. Thus, the majority correctly concludes that an employee who has suffered discrimination based on a work-related disability can pursue a FEHA cause of action, provided he or she is "disabled" within the strict definition of that statutory scheme and could have been reasonably accommodated. (See Gov. Code, § 12926, subds. (i) & (k); id., § 12940, subd. (a)(1); see also Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1061 [" he touchstone of a qualifying handicap or disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities."].)
I decline, however, to join the majority's extended Discussion of whether Labor Code section 132a (section 132a) provides the exclusive remedy for discrimination based on work-related disabilities. As the majority readily acknowledges, " n its face, section 132a's remedies apply only when employers retaliate against employees for pursuing their rights under the workers' compensation law." (Maj. opn., ante, at p. 5.) Although we have held that section 132a impliedly covers discrimination based on work-related disabilities, our decision to do so is problematic at best. (See Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 669-670 (dis. opn. of Richardson, J., joined by Clark and Manuel, JJ.).) In my view, it makes little sense to consider whether section 132a provides the exclusive remedy for work-related disability discrimination when, in fact, it may provide no such remedy at all. Stated somewhat differently, it is unfair to pin all of the blame on the Courts of Appeal in Portillo v. G. T. Price Products, Inc. (1982) 131 Cal.App.3d 285, Pickrel v. General Telephone Co. (1988) 205 Cal.App.3d 1058, and their progeny for misconstruing section 132a when, in fact, the real culprit may be our own decision in Judson Steel.
II.
With respect to Dillon's Tameny claim, I would conclude the trial court erroneously overruled the demurrer to her common law wrongful discharge cause of action predicated on the public policy articulated in FEHA for the reasons set forth in my Dissenting opinion in Stevenson v. Superior Court (1997) 16 Cal.4th 880, 912-925 (Stevenson). "FEHA is a comprehensive statute that carefully balances complementary administrative and judicial remedies not only to make whole victims of discrimination in the workplace, but also to penalize these unlawful business practic
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