Sterling Transit Co. v. Fair Employment Practice Com.
An employer may not exclude physically handicapped workers by class; the safety exception must be tailored to the individual, and mere conjecture of possible future injury will not justify refusing to employ a handicapped person.
Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791
Disability & Accommodation
Danger / safety defense
Physical handicap (Gov. Code § 12940)
In brief. A trucking company refused permanent employment to a driver whose preemployment physical revealed a congenital low-back condition, applying an absolute rule against hiring anyone with back deficiencies. The Fair Employment Practice Commission found unlawful handicap discrimination, the trial court denied a writ, and the Court of Appeal affirmed under the substantial-evidence test. An employer cannot invoke a bona fide occupational qualification to exclude a handicapped person “on the basis of class alone, unless it is proved all, or substantially all, persons in that class are unable to perform the job duties safely and efficiently,” and the separate safety exception “must be tailored to the individual characteristics of each applicant.” (Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 797–798.) “[A] possibility [the employee] might endanger his health sometime in the future” was “conjecture” that “will not justify a refusal to employ a handicapped person.” (Id. at p. 799.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The case arose under the Fair Employment Practice Act (FEPA) — the predecessor to today’s Fair Employment and Housing Act — but the governing text is the same provision now codified at Government Code section 12940. (Sterling Transit, supra, 121 Cal.App.3d at p. 794 & fn. 1 [former Lab. Code, § 1420, subd. (a), “now Gov. Code, § 12940”].) “Every person’s civil right to obtain and hold employment without discrimination or abridgment on account of a physical handicap is guaranteed under the public policy of this state.” (Id. at p. 794; Gov. Code, §§ 12920, 12921.)
“There is no factual dispute.” (Sterling Transit, supra, 121 Cal.App.3d at p. 794.) Jose Bustamante drove trucks for Sterling as temporary help in the identical capacity for 19 months, performing “so satisfactorily he was offered permanent employment.” (Ibid.) “A preemployment physical revealed his low-back congenital problem (scoliosis), thus, probably to Bustamante’s surprise, he is a handicapped person.” (Ibid.) “Because of Sterling’s absolute rule against hiring persons with back deficiencies, even those not presently disabling, Bustamante was discharged,” the company applying that rule uniformly to all persons with similar conditions. (Ibid.) Sterling conceded its action would be discriminatory and prohibited under FEPA “unless otherwise excused.” (Ibid.) The job demanded heavy physical labor — “constant lifting, bending, stooping, lifting up to 100 pounds” — and Bustamante’s scoliosis made him “more susceptible to back injury than persons not so afflicted.” (Id. at p. 798.) But the countervailing evidence was strong: Bustamante “regularly performed equivalent duties for 10 years, held the identical job for 19 months, and is currently so employed by a company having full awareness of his back condition,” and “[h]e has had no job-related back problems.” (Ibid.) Sterling’s own orthopedic experts agreed “not all persons would be similarly affected,” could offer no statistics on the degree of increased risk, and “admitted Bustamante might never suffer injury.” (Id. at pp. 798–799.)
Procedural history
The enforcement structure framed the dispute. To vindicate the civil right against handicap discrimination, the Legislature designed an administrative apparatus in which complaints “are processed through hearings” and resolved by “findings and . . . published opinions which serve as precedent to interpret and apply the law to claims under section 12940.” (Sterling Transit, supra, 121 Cal.App.3d at pp. 794–795; Gov. Code, §§ 12935, 12967.) Bustamante’s administrative accusation alleged handicap discrimination. (Id. at p. 794.) The administrative law judge recommended a ruling for Sterling on both the safety defense and the bona fide occupational qualification (BFOQ) defense — and even “speculated Bustamante’s employment might expose the public to a slightly greater risk of injury” — but the Commission rejected those recommendations, holding that Bustamante had made a prima facie case after which Sterling “failed to carry its burden on either defense”: the BFOQ defense because the record did not show its automatic exclusion rule was reasonably necessary to the “essence of its business,” and the safety defense because “any potential danger to Bustamante’s health was not substantial or immediate.” (Id. at pp. 794–795.) Sterling sought a writ of mandate; the trial court applied the substantial-evidence test (rejecting Sterling’s call for independent-judgment review) and denied the writ. (Id. at p. 795.) The Court of Appeal affirmed, limited to “reviewing the trial court’s decision in the same manner” and “bound to uphold the lower court’s ruling where it is based upon a reasonable evidentiary finding, even in the face of equally, or even more persuasive, competent evidence.” (Ibid.)
Issue
Whether substantial evidence supported the Commission’s conclusion that Sterling failed to justify its absolute no-back-deficiency hiring rule under either of two defenses: (1) the BFOQ defense, which would permit class-based exclusion; and (2) the safety defense, which permits refusal to employ where the handicap prevents safe performance. A point worth flagging: the safety branch the court analyzed concerned danger to the employee’s own health, not danger to others — “[t]he evidence in no way supports a finding of danger to other persons.” (Sterling Transit, supra, 121 Cal.App.3d at p. 798 & fn. 5.)
Holding
Affirmed. (1) The BFOQ defense permits class-wide exclusion only on a stringent showing: “it is inconsistent with the public policy against discrimination to allow an employer to exclude a handicapped person on the basis of class alone, unless it is proved all, or substantially all, persons in that class are unable to perform the job duties safely and efficiently.” (Sterling Transit, supra, 121 Cal.App.3d at p. 797.) “Sterling submitted no evidence to support such a finding,” and the record showed “no reasonable possibility Sterling could meet the burden in any event.” (Ibid.) (2) The safety defense — that “[a]n employer may refuse to hire persons whose physical handicap prevents them from performing their duties in a manner which does not endanger their health” (§ 12940, subd. (a)(1)) — “must be tailored to the individual characteristics of each applicant . . . in relation to specific, legitimate job requirements.” (Id. at p. 798.) Sterling’s evidence “at best, shows a possibility Bustamante might endanger his health sometime in the future,” and “such conjecture will not justify a refusal to employ a handicapped person.” (Id. at p. 799.) (3) There is no “financial impact exception”: the court is “not empowered to create” one to let employers exclude “otherwise qualified handicapped persons.” (Id. at p. 799.)
Reasoning
The statutory backdrop and the policy of liberal construction. Modeling its analysis on Title VII jurisprudence, the court explained that California’s act “is similar in scope to the federal law regarding acts made unlawful and the defenses available to employers,” but reaches additional protected groups, including the physically handicapped. (Sterling Transit, supra, 121 Cal.App.3d at p. 796.) Because of the “strong public policy in favor of employing the handicapped,” the Commission applied “a rule of liberal construction,” and “[i]n view of the severe ramifications of cutting off an entire group of persons from an area of employment based solely on class characteristics,” the Legislature “intended the Commission to favor the handicapped and narrowly construe the BFOQ defense.” (Id. at pp. 796–797.)
BFOQ: class-based exclusion demands an “all or substantially all” showing. Drawing on Weeks v. Southern Bell Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, the court defined the BFOQ defense as one that, if proved, allows exclusion of an entire protected class “without inquiry as to whether certain members of the class may, in fact, be capable of safe and efficient job performance.” (Sterling Transit, supra, 121 Cal.App.3d at p. 797.) Precisely because the defense is so categorical, it carries a heavy burden: the employer must prove “all, or substantially all, persons in that class are unable to perform the job duties safely and efficiently.” (Ibid.) Sterling produced no such proof. The court rejected Sterling’s plea to import a relaxed “impossibility or impracticality of dealing with [class members] on an individualized basis” standard. Weeks itself had hypothesized that an employer might satisfy its burden without an “all or substantially all” showing by proving the impracticality of individualized assessment, and Harriss v. Pan Am. World Airways, Inc. (N.D.Cal. 1977) 437 F.Supp. 413 had found such a demonstration. (Sterling Transit, supra, 121 Cal.App.3d at p. 797.) But Harriss “involved safety regulations designed to safeguard passengers transported by common carrier,” and the cases recognizing a relaxed standard — Usery v. Tamiami Trail Tours and Hodgson v. Greyhound Lines — were likewise common-carrier cases reflecting the heightened duty owed to the traveling public. (Ibid.) Because “a lesser showing is required to justify employment discrimination by common carriers,” and Sterling was not one, “Sterling’s evidence does not support extending the lesser alternative standard to other than common carriers.” (Id. at pp. 797–798.) The court noted that the “all or substantially all” standard it applied “has now been enacted into a regulation,” codifying the Commission’s liberal-construction rule. (Id. at p. 797 & fn. 4 [Cal. Admin. Code, tit. 2, § 7286.7, subd. (a)].)
Safety: the exception must be individualized, and speculation will not do. The safety defense differs fundamentally from the BFOQ defense. “Unlike the BFOQ defense, this exception must be tailored to the individual characteristics of each applicant . . . in relation to specific, legitimate job requirements.” (Sterling Transit, supra, 121 Cal.App.3d at p. 798.) On the individualized record, the danger was theoretical: Bustamante’s own physician found him unrestricted and unlikely to suffer “major” disability absent “new events,” and Sterling’s experts conceded he “might never suffer injury” and that safe performance “depended on how careful he was and whether he stayed physically fit.” (Id. at pp. 798–799.) “Sterling’s evidence, at best, shows a possibility Bustamante might endanger his health sometime in the future. In the light of the strong policy for providing equal employment opportunity, such conjecture will not justify a refusal to employ a handicapped person.” (Id. at p. 799.)
The individualized record defeated the safety defense. The court’s application of the individualized standard repays attention because it models how the defense is tested in practice. Sterling’s job description called for “constant lifting, bending, stooping, lifting up to 100 pounds,” and its two orthopedic experts agreed that scoliosis “increases the risk of back injury” in such strenuous work. (Sterling Transit, supra, 121 Cal.App.3d at pp. 798–799.) But the same experts “agreed not all persons would be similarly affected,” “could offer no statistics showing the degree to which the risk of injury increases,” and “each admitted Bustamante might never suffer injury”; one testified that safe performance “‘depended on how careful he was and whether he stayed physically fit.’” (Id. at pp. 798–799.) Against that, Bustamante had “regularly performed equivalent duties for 10 years,” held the identical job for 19 months, had “no job-related back problems,” and was then employed in the same work by a company aware of his condition. (Id. at p. 798.) On that record the danger was “a possibility . . . sometime in the future,” and “conjecture will not justify a refusal to employ a handicapped person.” (Id. at p. 799.)
No financial-impact exception. Sterling argued the Commission’s ruling exposed it to substantial future workers’-compensation and replacement costs. (Sterling Transit, supra, 121 Cal.App.3d at p. 799.) The court acknowledged the concern is real and “mirrored by employers in every jurisdiction,” but held the statute admits no such defense: “There is no ambiguity in the language of the act, and we are not empowered to create a financial impact exception allowing employers to prevent otherwise qualified handicapped persons from competing for employment on an equal footing with all others.” (Ibid.) Screening out all persons with “nondisabling abnormal backs” merely “decreases [the employer’s] risk of an undetermined future increase in the cost of doing business,” and “such a blanket exclusion eviscerates the legislative policy by erecting employment barriers more difficult to scale than Mount Rainier.” (Id. at pp. 799–800.)
Significance
Sterling Transit is a foundational California decision on the “danger” and BFOQ defenses to handicap (now disability) discrimination, and it supplies the analytical architecture the courts still use. Its core contributions endure: class-based exclusion of the handicapped requires an “all or substantially all” showing; the safety exception is an individualized inquiry, not a class judgment; speculation about possible future harm is not enough; and employer cost-avoidance is not a defense. Eight years later, Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242 relied on Sterling Transit for the proposition that the employer bears the burden of proving the safety defense by a preponderance of the evidence — there, the danger-to-others branch in the AIDS context. Together the two cases frame the modern statutory defense now codified in Government Code section 12940, subdivision (a)(1), under which an employer may decline to employ a disabled person who cannot perform essential duties “in a manner that would not endanger his or her health or safety or the health or safety of others,” subject to an individualized assessment based on objective evidence. One caution on scope: Sterling Transit addressed danger to the employee himself; the danger-to-others branch was not at issue (id. at p. 798, fn. 5), and later authority (including Raytheon) elaborates that branch.
The decision also models a now-familiar division of analytical labor between the two defenses. The BFOQ defense operates at the level of the class: it asks whether the protected group, as a group, can be categorically excluded, and answers yes only on the near-impossible “all or substantially all” showing — a deliberately stringent test because a successful BFOQ defense forecloses employment to every member of the class “without inquiry as to whether certain members . . . may, in fact, be capable of safe and efficient job performance.” (Sterling Transit, supra, 121 Cal.App.3d at p. 797.) The safety defense operates at the level of the individual: it asks whether this applicant can perform these duties safely, and demands a particularized, evidence-based assessment. (Id. at p. 798.) That structure — categorical defense for class exclusion, individualized defense for the particular worker — is the conceptual backbone of disability-discrimination defenses, and Sterling Transit is among the earliest California cases to articulate it clearly.
Key quotes
“[I]t is inconsistent with the public policy against discrimination to allow an employer to exclude a handicapped person on the basis of class alone, unless it is proved all, or substantially all, persons in that class are unable to perform the job duties safely and efficiently.” (Sterling Transit, supra, 121 Cal.App.3d at p. 797.)
“Unlike the BFOQ defense, this exception must be tailored to the individual characteristics of each applicant . . . in relation to specific, legitimate job requirements.” (Id. at p. 798.)
“Sterling’s evidence, at best, shows a possibility Bustamante might endanger his health sometime in the future. In the light of the strong policy for providing equal employment opportunity, such conjecture will not justify a refusal to employ a handicapped person.” (Id. at p. 799.)
Practice pointer
When an employer defends an exclusion on the ground that a disability makes safe performance impossible, Sterling Transit dictates the framing. First, separate the two defenses: a class-wide rule (everyone with condition X is barred) is a BFOQ-type defense requiring proof that “all, or substantially all” of the class cannot perform safely — a burden almost impossible to carry; the individualized safety defense requires a particularized assessment of this applicant against specific job requirements. (Sterling Transit, supra, 121 Cal.App.3d at pp. 797–798.) For plaintiffs, attack a blanket medical rule as forbidden class-based exclusion, and show your client’s actual track record of safe performance; “conjecture” of future harm is insufficient, and cost concerns are no defense. (Id. at pp. 799–800.) For defense counsel, never rely on a categorical medical disqualification; build an individualized, evidence-based assessment tied to essential functions, and be prepared to prove the danger by a preponderance (per Raytheon). Watch the distinction the case draws between danger to the employee’s own health (at issue here) and danger to others (developed in Raytheon) — the analysis is individualized either way, but the record you must build differs.
Open questions
The court expressly reserved the danger-to-others branch, noting “[t]he evidence in no way supports a finding of danger to other persons,” so it did not decide what showing would justify exclusion to protect third parties — a question later courts (notably Raytheon) took up. (Sterling Transit, supra, 121 Cal.App.3d at p. 798 & fn. 5.) It also left open the boundaries of the relaxed “impossibility or impracticality of individualized assessment” standard: the court declined to extend that lesser standard “to other than common carriers” on Sterling’s record, without deciding when, if ever, a non–common-carrier employer might invoke it. (Id. at pp. 797–798.) Finally, the opinion construes the FEPA-era statute; while its holdings carried into the FEHA framework, it does not address the later statutory shift from “physical handicap” to “physical disability,” the essential-functions and reasonable-accommodation overlay, or how the safety defense interacts with the interactive-process obligations that postdate the decision.