Badih v. Myers

Facts

The legal architecture matters more than usual in this case, so it helps to begin with it. California employment is presumptively at will: the rule, “now codified in Labor Code section 2922,” is “that unless otherwise agreed by the parties, an employment is terminable at will.” (Badih v. Myers (1995) 36 Cal.App.4th 1289, 1292, quoting Jennings v. Marralle (1994) 8 Cal.4th 121, 129.) The tort of wrongful discharge in contravention of public policy — the Tameny claim — is an exception to that rule, available “where an employer’s discharge of [the] employee contravenes the dictates of fundamental public policy.” (Badih, supra, at pp. 1292–1293, quoting Rojo v. Kliger (1990) 52 Cal.3d 65, 89.) But the exception has a discipline: “[C]ourts in wrongful discharge actions may not declare public policy without a basis in either constitutional or statutory provisions.” (Id. at p. 1293, quoting Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095.)

The statutory source that would ordinarily govern a pregnancy discharge — the Fair Employment and Housing Act — was unavailable here. The FEHA defines an “employer” as a person “regularly employing five or more persons” (Gov. Code, § 12926, subd. (d)), and the parties agreed that defendant Leonard Myers, a medical doctor, did not regularly employ five or more persons and hence was not subject to the act. (Badih, supra, 36 Cal.App.4th at p. 1291, fn. 1.) The constitutional source that ultimately decided the case is article I, section 8 of the California Constitution: “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.” (Id. at p. 1293, fn. 2.)

The facts the jury credited were stark. Fatmeh Badih, a recent immigrant from Sierra Leone, began working as a medical assistant in Myers’s offices in January 1987. About nine months later she started dating Constantine Kalaveras; Myers, who disapproved of interracial relationships, referred to Kalaveras as “the White guy.” (Badih, supra, 36 Cal.App.4th at p. 1291.) When Badih married Kalaveras in December 1988, Myers “slapped on the table, stood up, and started yelling and hollering” about the mistake she had made. (Id. at pp. 1291–1292.)

On September 6, 1989, Badih told Myers she was pregnant. According to her testimony, he answered: “I just can’t believe you. I just don’t know what to say to you anymore. It seems like everything I ever told you just went right in vain. [F]irst you introduce me to this White guy, and then you marry him, and then you’re having his baby. What’s next? I can’t take this anymore. If you told me you were going to get married and have babies, I wouldn’t have hired you in the first place. I need an office girl when I need her, not a person that has responsibilities the way you do now.” (Badih, supra, 36 Cal.App.4th at p. 1292.) He told her that her last day would be September 15; on September 13, he threatened to call security if she did not leave immediately, and she complied. (Ibid.) Myers denied firing Badih at all — his account was that she quit. (Ibid.)

Procedural history

Badih filed suit on June 25, 1990, alleging among other things race and pregnancy discrimination. She had first attempted to file an administrative complaint, but the Department of Fair Employment and Housing refused to accept it because Myers employed fewer than five people. (Badih, supra, 36 Cal.App.4th at p. 1291.) The case was tried to a San Francisco jury on a theory of wrongful discharge in contravention of public policy. The jury found that Myers had not terminated Badih’s employment on the basis of race but that he had terminated her on the basis of pregnancy, and it awarded her $20,226 in damages. The trial court then granted Badih’s motion for attorney fees, and Myers appealed from both the judgment and the fee order. (Id. at p. 1292.)

The Court of Appeal affirmed the judgment, with costs to Badih. (Badih, supra, 36 Cal.App.4th at p. 1296.) The opinion was certified for publication only in part: the published portion comprises the factual background and part II.A — the public-policy analysis discussed here — while parts II.B through II.E were left unpublished. The California Supreme Court denied review on October 19, 1995. (Id. at pp. 1289, 1296.)

Issue

Myers’s appellate theory tracked Jennings: he contended “that the judgment must be reversed because there is no fundamental public policy prohibiting discrimination on the basis of pregnancy by employers who are not subject to the Fair Employment and Housing Act.” (Badih, supra, 36 Cal.App.4th at p. 1291.) In his view, the FEHA — with its five-employee threshold — contained the only constitutional or statutory provisions prohibiting pregnancy discrimination in employment, so a small employer stood outside any “fundamental public policy” a Tameny claim could enforce. (Id. at p. 1293.) The question presented was therefore precise: is pregnancy discrimination a form of sex discrimination under article I, section 8 of the California Constitution — a source of public policy independent of the FEHA and indifferent to employer size? (Ibid.)

Holding

Reasoning

The Tameny framework demands a constitutional or statutory anchor — and the FEHA could not be it. The court began from settled principles: the public-policy tort excepts an employee from at-will termination only where the discharge “contravenes the dictates of fundamental public policy,” and courts “may not declare public policy without a basis in either constitutional or statutory provisions.” (Badih, supra, 36 Cal.App.4th at pp. 1292–1293, quoting Rojo v. Kliger, supra, 52 Cal.3d at p. 89 and Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1095.) Myers’s argument rested on Jennings v. Marralle, supra, 8 Cal.4th 121, in which the Supreme Court held that an employee of a small employer could not pursue a common-law discharge claim premised on the FEHA’s age-discrimination policy: the small-employer exemption “was enacted simultaneously to, and is inseparable from, the legislative statement of policy,” and “because no other statute or constitutional provision bars age discrimination,” no fundamental policy precluded age discrimination by a small employer. (Badih, at p. 1293, quoting Jennings, at p. 125.) The FEHA, in other words, cannot give with one hand a policy the Legislature withheld with the other.

Badih’s escape from Jennings: pregnancy discrimination has an independent constitutional source. Badih did not quarrel with Jennings; she distinguished it. Pregnancy discrimination, she argued, is a form of sex discrimination — and sex discrimination in employment, unlike age discrimination, is prohibited not only by the FEHA but also by article I, section 8 of the California Constitution. (Badih, supra, 36 Cal.App.4th at p. 1293.) That constitutional provision needs no five-employee threshold; under Rojo, it independently “expresses a fundamental public policy against sex discrimination in employment.” (Id. at p. 1296.) The court announced at the outset of the analysis: “For the reasons discussed below, we agree.” (Id. at p. 1293.) The dispositive question thus became definitional — whether “sex discrimination” in article I, section 8 includes discrimination because of pregnancy.

The federal counterpoint: Geduldig and Gilbert. The court acknowledged candidly that “[t]he question of whether pregnancy discrimination in employment is a form of sex discrimination is not without controversy.” (Badih, supra, 36 Cal.App.4th at p. 1293.) In Geduldig v. Aiello (1974) 417 U.S. 484, the United States Supreme Court had held, in the federal equal protection context, that “[w]hile it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification”; the pregnancy exclusion there divided potential recipients into “pregnant women and non-pregnant persons,” and “[w]hile the first group is exclusively female, the second includes members of both sexes.” (Badih, at pp. 1293–1294, quoting Geduldig, at pp. 496–497, fn. 20.) General Electric Co. v. Gilbert (1976) 429 U.S. 125, 133–140, then extended that reasoning to Title VII. (Badih, at p. 1294.) Had the analysis stopped with federal doctrine, Myers would have had a serious argument that pregnancy classifications are not sex-based at all.

The legislative and administrative repudiation of Gilbert. The heart of the opinion is its account of how completely California and Congress rejected that view. “Both the California Legislature and the United States Congress reacted swiftly to the Gilbert decision.” (Badih, supra, 36 Cal.App.4th at p. 1294.) In 1978 the Legislature amended the Fair Employment Practices Act — the FEHA’s predecessor — to prohibit pregnancy discrimination in employment specifically (former Lab. Code, § 1420.35, now Gov. Code, § 12945), providing that the new section “shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy.” (Ibid.) The same year, Congress enacted the Pregnancy Discrimination Act, amending Title VII to declare that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” (Ibid., quoting 42 U.S.C. § 2000e(k).) As the United States Supreme Court itself later recognized, “[w]hen Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision.” (Ibid., quoting Newport News Shipbuilding & Dry Dock v. EEOC (1983) 462 U.S. 669, 678; see also California Federal S. & L. Assn. v. Guerra (1987) 479 U.S. 272, 284–285; Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 534–535.) The administrative construction matched: the Fair Employment and Housing Commission’s 1980 regulation provided that “[d]iscrimination because of pregnancy, childbirth or related medical conditions constitutes sex discrimination under Government Code section 12940,” and the Commission’s precedential decisions were in accord. (Badih, at pp. 1294–1295.) In 1990 the Legislature codified that understanding, amending the FEHA to provide that “‘[s]ex’ includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth” — an amendment that by its own terms “does not constitute a change in, but is declaratory of, existing law” — while simultaneously providing that Government Code section 12945 “shall not be construed . . . in any way to diminish the coverage of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth under any other provisions of [the FEHA].” (Id. at p. 1295.)

Closing the circle: the same definition governs article I, section 8. With that background assembled, the court turned to the constitutional question. Only one court had addressed it directly — a federal district court, which answered affirmatively. (Badih, supra, 36 Cal.App.4th at p. 1295, citing Merrell v. All Seasons Resorts, Inc. (C.D.Cal. 1989) 720 F.Supp. 815; see id. at p. 1295, fn. 3 [noting that Arriaga v. Loma Linda University (1992) 10 Cal.App.4th 1556 declined to reach the question, and that Gunn v. Employment Development Dept. (1979) 94 Cal.App.3d 658, 663 assumed the affirmative answer].) The court agreed with Merrell: “With the exception of the United States Supreme Court’s roundly disapproved decision in General Electric Co. v. Gilbert, supra, 429 U.S. 125, the statutes, regulations, and decisions discussed above strongly support the notion that pregnancy discrimination in employment should be treated as a form of sex discrimination.” (Id. at p. 1295.) And although much of that authority arose under the FEHA and Title VII, “there is no reason why a different definition of sex discrimination should be applied in the context of article I, section 8.” (Ibid.) For that interpretive move the court invoked Rojo itself, which had relied on FEHA regulations and precedential decisions to conclude that sexual harassment is a form of sex discrimination under article I, section 8. (Ibid., citing Rojo v. Kliger, supra, 52 Cal.3d at p. 73, fn. 4, p. 90.) The conclusion followed: pregnancy discrimination is sex discrimination under the Constitution, the Constitution states a fundamental public policy, and the Tameny claim was proper. (Id. at p. 1296.)

Significance

Badih is the mirror image of Jennings v. Marralle, and together the two cases map the outer boundary of the Tameny tort for California’s smallest workplaces. Jennings teaches that a policy found only in an inapplicable statute cannot support the tort; Badih teaches that where an independent constitutional source exists, the statutory threshold is no shelter. Because article I, section 8 recognizes no employer-size minimum, the roughly co-extensive categories it names — sex, race, creed, color, national or ethnic origin — carry fundamental-public-policy force against every California employer, however small. (Badih, supra, 36 Cal.App.4th at pp. 1293, fn. 2, 1296.) The Supreme Court’s later cases confirmed the architecture: Stevenson v. Superior Court (1997) 16 Cal.4th 880 located a viable age-based Tameny claim in the FEHA where that statute actually applied, and City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 recognized a public-policy claim for disability discrimination — each proceeding, as Badih did, source by source.

The definitional holding has also been overtaken — in the best sense — by statute. The 1990 codification the court relied upon, then Government Code section 12926, former subdivision (j), later subdivision (o), now lives at section 12926, subdivision (r)(1), which defines “sex” to include pregnancy, childbirth, breastfeeding, and medical conditions related to any of them. The Commission regulation the court quoted, former California Code of Regulations, title 2, section 7291.2, subdivision (d), has been superseded by the Civil Rights Council’s pregnancy regulations, now found at California Code of Regulations, title 2, section 11035 et seq. And section 12945 — the provision born of the 1978 anti-Gilbert amendment the court described — is today’s Pregnancy Disability Leave Law. None of those developments narrows Badih; they deepen the “statutes, regulations, and decisions” on which its constitutional conclusion rests. (Badih, supra, 36 Cal.App.4th at p. 1295.) The case is also a quiet landmark of method: like Rojo before it, it reads the Constitution’s open-textured guarantee through the accumulated statutory and administrative consensus, an approach that matters whenever a plaintiff must locate public policy outside a statute’s coverage limits.

Finally, Badih retains a distinctive procedural lesson. The DFEH refused even to accept Badih’s administrative complaint because of the employer’s size (Badih, supra, 36 Cal.App.4th at p. 1291), yet her tort claim proceeded to verdict and affirmance. The common-law claim is not an FEHA claim, and it does not borrow the FEHA’s coverage rules — only, where applicable, its expression of policy.

Key quotes

“In short, we conclude that pregnancy discrimination is a form of sex discrimination under article I, section 8 of the California Constitution.” (Badih, supra, 36 Cal.App.4th at p. 1296.)

“With the exception of the United States Supreme Court’s roundly disapproved decision in General Electric Co. v. Gilbert, supra, 429 U.S. 125, the statutes, regulations, and decisions discussed above strongly support the notion that pregnancy discrimination in employment should be treated as a form of sex discrimination.” (Id. at p. 1295.)

“Although much of this authority arises in the context of the FEHA and Title VII, there is no reason why a different definition of sex discrimination should be applied in the context of article I, section 8.” (Ibid.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The published opinion decides one question and carefully no more. Parts II.B through II.E — which addressed Myers’s remaining challenges, including his appeal from the attorney fee order — are unpublished and may not be cited (Cal. Rules of Court, rule 8.1115(a)), so Badih is authority only for its public-policy holding. (Badih, supra, 36 Cal.App.4th at pp. 1289, 1296.) Three questions remain live. First, the reach of article I, section 8 beyond discharge: the provision speaks of being “disqualified from entering or pursuing” employment (id. at p. 1293, fn. 2), and Badih, like Rojo, involved a completed termination; whether the constitutional policy supports a Tameny-style claim for adverse action short of discharge is unresolved — and the tort itself has historically been confined to discharge. Second, the modern statutory definition of “sex” now includes breastfeeding and related medical conditions (Gov. Code, § 12926, subd. (r)(1)), categories added after Badih; the opinion’s method — reading the constitutional term through the accumulated statutory and administrative consensus (Badih, at p. 1295) — points toward the same answer for those conditions, but no published decision has so held. Third, Badih did not decide what damages rules govern small-employer public-policy claims, and its fee discussion is locked in the unpublished portion; counsel should assume ordinary tort principles and Code of Civil Procedure section 1021’s American rule absent another basis.