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City of Moorpark v. Superior Court of Ventura County8/17/1998
ise. Nevertheless, we emphasize that not every instance of disability discrimination in violation of section 132a gives rise to a valid FEHA claim. The term "disability" has a specific meaning in the context of the workers' compensation law that it has in no other context. On the other hand, the FEHA includes detailed definitions of " `Physical disability' " and " `Mental disability' " that make no reference to the workers' compensation law. (Gov. Code, ยง 12926, subds. (i), (k).) Because the standards for establishing disability discrimination may well be different under the FEHA than under section 132a, a decision in an employee's favor on a section 132a petition would not establish a FEHA violation. Moreover, to the extent section 132a and the FEHA overlap, equitable principles preclude double recovery for employees. For example, employees who settle their claims for lost wages and work benefits as part of a section 132a proceeding could not recover these damages as part of a subsequent FEHA proceeding.
2. Dillon's common law wrongful discharge cause of action.
In the case of Dillon's common law wrongful discharge cause of action, our Conclusion that section 132a does not provide an exclusive remedy is only half the analysis. We must also decide whether disability discrimination can form the basis of a common law action of this type.
In Tameny, we reaffirmed "that when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action . . . ." (Tameny, supra, 27 Cal.3d at p. 170.) In that case, the plaintiff alleged that his employer terminated him because he refused to participate in an illegal scheme to fix gasoline prices. (Id. at p. 169.) The trial court sustained the defendants' demurrer to the plaintiff's tort cause of action for wrongful discharge, and the plaintiff appealed. (Id. at p. 171.) We reversed, noting the long-standing rule "that a wrongful act committed in the course of a contractual relationship may afford both tort and contractual relief . . . ." (Id. at pp. 174-175.) We reasoned that "an employer's obligation to refrain from discharging an employee who refuses to commit a criminal act . . . reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state's penal statutes. As such, a wrongful discharge suit exhibits the classic elements of a tort cause of action." (Id. at p. 176.) In subsequent cases applying Tameny, we recognized tort causes of action for wrongful discharge based on sex (Rojo, supra, 52 Cal.3d at pp. 90-91), age (Stevenson, supra, 16 Cal.4th at pp. 897, 909), and retaliation for testifying truthfully (Gantt, supra, 1 Cal.4th at pp. 1086-1087). We have not, however, addressed whether disability discrimination, like sex and age discrimination, can form the basis of a common law wrongful discharge claim.
In Stevenson, we articulated a four-part test for determining whether a particular policy can support a common law wrongful discharge claim. 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 discharge; and (4) substantial and fundamental." (Stevenson, supra, 16 Cal.4th at p. 894; see also Jennings v. Marralle, supra, 8 Cal.4th at p. 130; Gantt, supra, 1 Cal.4th at pp. 1090, 1095; Rojo, supra, 52 Cal.3d at pp. 89-90.) " ` ublic policy' as a concept is notoriously resistant to precise definition, and . . . courts should venture into this area, if at all, with great care . . . ." (Gantt, supra, 1 Cal.4
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