City of Moorpark v. Superior Court of Ventura County8/17/1998
same could not be said about common law remedies, and we expressly did not decide in Shoemaker whether, in addition to a claim under the whistleblower statute, the plaintiff could also pursue a common law wrongful discharge claim. (Shoemaker, supra, 52 Cal.3d at p. 23.) We addressed that unresolved question in Gantt, concluding that "the . . . `compensation bargain' cannot encompass conduct, such as sexual or racial discrimination, `obnoxious to the interests of the state and contrary to public policy and sound morality.' " (Gantt, supra, 1 Cal.4th at p. 1101, quoting Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 188; see also Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 714-715.) Accordingly, we held that workers' compensation exclusivity did not preclude a common law wrongful discharge claim: "we decline the invitation to retreat from our long-held view that employees discharged in violation of fundamental public policy may bring an action against their employers sounding in tort." (Gantt, supra, 1 Cal.4th at p. 1098.)
In Angell, the court considered whether Pickrel's holding remained valid in light of Shoemaker and Gantt; that is, whether wrongful termination in violation of section 132a "could be considered ` "a risk reasonably encompassed within the compensation bargain" ' " for which workers' compensation is the exclusive remedy. (Angell, supra, 21 Cal.App.4th at p. 994, quoting Gantt, supra, 1 Cal.4th at p. 1101.) The court seemed to accept without Discussion that disability discrimination could form the basis of a common law wrongful discharge claim. (Angell, supra, 21 Cal.App.4th at p. 995.) The court also acknowledged our holding in Gantt that these claims do not fall within the compensation bargain. (Angell, supra, 21 Cal.App.4th at pp. 990, 993.) Nevertheless, the court concluded that, by enacting section 132a, ". . . the Legislature specifically placed this type of discriminatory termination within the scope of the compensation bargain." (Angell, supra, 21 Cal.App.4th at p. 996.) Accordingly, the court held that section 132a provided an employee's exclusive remedy for discrimination based on a work-related disability, precluding claims under both the FEHA and the common law. (Angell, supra, 21 Cal.App.4th at p. 997; see also Adkins v. State of California, supra, 50 Cal.App.4th at pp. 1819-1822 [following Angell]; Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at pp. 668-670 [same].)
In rejecting the Conclusion of Portillo, Pickrel, Angell, and related cases, the Court of Appeal in this case focused on the 1993 amendment to the FEHA, reading it as repealing by implication all antidiscrimination laws that provide "less protection" than the FEHA, including section 132a. Notably, the Court of Appeal did not find an outright repeal of section 132a, but merely a repeal of its exclusivity, thus permitting employees to pursue FEHA and common law remedies in addition to section 132a remedies. We agree with the Court of Appeal that section 132a does not preclude Dillon's FEHA and common law causes of action, but, unlike the Court of Appeal, we reach this Conclusion without relying on the 1993 amendment to the FEHA. Accordingly, we do not decide what effect, if any, the 1993 FEHA amendment had on section 132a.
Though the Court of Appeal decided Portillo 16 years ago, and though other Court of Appeal decisions have affirmed its holding, we have never addressed its validity. We do so now.
As noted, the Portillo court held that, when section 132a applies, it provides an employee's exclusive remedy. (Portillo, supra, 131 Cal.App.3d at p. 290.) In reaching this Conclusion, the court applied the exclusive remedy provisions t
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