Rojo v. Kliger

Facts

Emma Rojo and a coworker were employed in the medical office of Dr. Erwin Kliger. (52 Cal.3d at pp. 71–72.) They alleged that Kliger subjected them to sexual harassment — unwelcome advances and demands — and that when they resisted, they were effectively forced from their jobs. (Ibid.) Rather than (or in addition to) pursuing FEHA administrative remedies, they filed suit asserting common-law causes of action, including wrongful discharge in violation of public policy and related tort claims. (Id. at pp. 72–73.) The defendants demurred, contending the employees were required to exhaust their FEHA administrative remedies before suing and that the FEHA supplanted any common-law claims. (Id. at p. 73.)

Procedural history

The trial court sustained the demurrer to the common-law claims, and the Court of Appeal reached the exhaustion and displacement questions. (52 Cal.3d at pp. 72–73.) The Supreme Court granted review and held the FEHA neither displaces common-law remedies nor requires administrative exhaustion before a common-law suit, and that the public policy against sex discrimination supports a wrongful-discharge claim. (Id. at pp. 73–74, 88–91.)

Issue

Must an employee exhaust the FEHA’s administrative remedies before bringing common-law claims arising from employment discrimination; does the FEHA displace such common-law remedies; and does the policy against sex discrimination support a common-law wrongful-discharge claim? (52 Cal.3d at pp. 73–74.)

Holding

Reasoning

1. No displacement of the common law. The Court applied the settled principle that statutes do not abrogate common-law rights unless the Legislature clearly so intends. (52 Cal.3d at pp. 74–82.) The FEHA contains a savings provision and nowhere declares itself the exclusive remedy for employment discrimination; “[w]here a statute is silent, the common law governs.” (Id. at pp. 79–82.) The FEHA thus supplements, rather than supplants, pre-existing common-law tort and contract remedies. (Ibid.)

2. No exhaustion requirement for common-law claims. Because the common-law claims arise independently of the FEHA, the Court held that the FEHA’s administrative-exhaustion requirement — which conditions a statutory FEHA suit on first proceeding before the agency — does not apply to them. (52 Cal.3d at pp. 82–88.) An employee may pursue common-law claims in court without first filing a FEHA charge. (Ibid.)

3. Sex discrimination is a fundamental public policy. The Court held that the policy against sex discrimination in employment — rooted in the California Constitution (art. I, § 8) and statutory law — is sufficiently fundamental to support a Tameny claim for wrongful discharge in violation of public policy. (52 Cal.3d at pp. 88–91.) An employee forced from her job because of sex discrimination or harassment may therefore sue in tort, independent of the FEHA. (Ibid.)

4. Limits. The Court took care to define what survived: it preserved common-law claims (such as wrongful discharge and certain tort theories) but did not hold that the FEHA itself could be bypassed for relief the statute provides, nor that every incident of workplace misconduct states a tort. (52 Cal.3d at pp. 79–91.) The decision establishes coexistence — statutory and common-law remedies operate in parallel. (Ibid.)

Significance

Rojo is a foundational decision on the relationship between the FEHA and the common law. By holding that the FEHA neither displaces common-law remedies nor requires administrative exhaustion before a common-law suit, and that sex discrimination supports a Tameny public-policy claim, it allowed employees to pursue common-law tort theories — with their broader remedies — alongside or instead of FEHA claims. It anticipated and underpins later coexistence rulings such as Stevenson v. Superior Court (1997) 16 Cal.4th 880 (FEHA remedies cumulative; age-discrimination policy supports a Tameny claim) and informs how courts treat exhaustion and remedy-stacking across the FEHA, the Tameny tort, and statutory whistleblower claims. Rojo remains a staple citation whenever a defendant argues that the FEHA is the exclusive route or that administrative exhaustion bars a common-law claim. See the Review’s coverage of the discrimination and wrongful-termination lines.

Key quotes

“[P]laintiffs need not exhaust their remedies under the FEHA before” bringing common-law claims. (Rojo, supra, 52 Cal.3d at p. 88.)

“Where a statute is silent, the common law governs.” (Id. at p. 81.)

“[S]ex discrimination in employment may support a claim of wrongful discharge in contravention of public policy.” (Id. at pp. 88–91.)

Read the full opinion (California Supreme Court — full text) →

Practice pointer

Open questions

The precise boundary between common-law claims that survive independently and those effectively governed by the FEHA’s remedial scheme continues to be refined, as does which statutory schemes are exclusive versus cumulative. How Rojo’s no-exhaustion rule interacts with later procedural requirements and with the modern whistleblower and retaliation framework remains a recurring subject of litigation.