Supreme Court No. S052588



IN THE SUPREME COURT


OF THE STATE OF CALIFORNIA



JOAN STEVENSON, (Court of Appeal No. B089375)


Plaintiff,

and Petitioner,



vs. (Los Angeles County

Superior Court No. GC011606,

SUPERIOR COURT OF LOS Hon. Coleman A. Swart, Judge)

ANGELES COUNTY,


Respondent;


HUNTINGTON MEMORIAL HOSPITAL,



Real Party in Interest.



______________________________





DECISION OF THE COURT OF APPEAL

SECOND APPELLATE DISTRICT

DIVISION THREE

_____________________________________________



REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND

AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF

AND PETITIONER JOAN STEVENSON

____________________________________________





JOSEPH POSNER, INC.

16311 Ventura Blvd., Ste. 555

Encino, California 91436-4303

(818) 990-1340


Attorney for California Employment Lawyers Association

Supreme Court No. S052588





IN THE SUPREME COURT



OF THE STATE OF CALIFORNIA







JOAN STEVENSON, (Court of Appeal No. B089375)


Plaintiff, and Petitioner,



vs. (Los Angeles County

Superior Court No. GC011606,

SUPERIOR COURT OF LOS Hon. Coleman A. Swart, Judge)

ANGELES COUNTY,


Respondent;



HUNTINGTON MEMORIAL HOSPITAL,



Real Party in Interest.


______________________________




DECISION OF THE COURT OF APPEAL

SECOND APPELLATE DISTRICT

DIVISION THREE

_____________________________________________



REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PLAINTIFF AND PETITIONER JOAN STEVENSON

____________________________________________





TO THE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE JUSTICES

OF THE SUPREME COURT:

The California Employment Lawyers Association (CELA) requests permission to file a brief as amicus curiae in support of plaintiff and petitioner Joan Stevenson. CELA is a statewide organization of attorneys primarily representing plaintiffs in employment termination and discrimination cases.

CELA, through its undersigned attorneys, is familiar with the questions involved in this case and the scope of their presentation and believes that there is necessity for additional argument on the following points:

- The Legislature has enacted not one but many statutes declaring age discrimination to violate public policy. There is more than sufficient statutory support, therefore, for Ms. Stevenson's wrongful termination action in violation of public policy;

- Both empirical experience and research studies show that the American workforce is getting older, and as a consequence age discrimination is likely to increase. To carry out the state's public policy of eradicating discrimination, a plaintiff in an age discrimination case should have the right to proceed on all available bases.

If this request is granted, the following brief in support of plaintiff and petitioner is respectfully submitted.

Respectfully submitted,



JOSEPH POSNER, INC.





By___________________________

JOSEPH POSNER,

Attorneys for California Employment

Lawyers Association, Amicus Curiae

Supreme Court No. S052588













IN THE SUPREME COURT


OF THE STATE OF CALIFORNIA




JOAN STEVENSON, (Court of Appeal No. B089375)


Plaintiff,

and Petitioner,


vs. (Los Angeles County

Superior Court No. GC011606,

SUPERIOR COURT OF LOS Hon. Coleman A. Swart, Judge)

ANGELES COUNTY,



Respondent;


HUNTINGTON MEMORIAL HOSPITAL,


Real Party in Interest.


______________________________



DECISION OF THE COURT OF APPEAL

SECOND APPELLATE DISTRICT

DIVISION THREE

_____________________________________________



AMICUS CURIAE BRIEF BY CALIFORNIA EMPLOYMENT

LAWYERS ASSOCIATION IN SUPPORT OF PLAINTIFF

AND PETITIONER JOAN STEVENSON

____________________________________________




TO THE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE JUSTICES

OF THE SUPREME COURT:



INTRODUCTION

Age discrimination is a widespread, pervasive evil that threatens to become more of a problem as the American workforce ages. The Legislature has recognized the problem by enacting many statutes declaring the public policy of the state to be against age discrimination. Plaintiffs suing on an age discrimination basis should be able to hold an entity liable, either under the Fair Employment & Housing Act (FEHA), Government Code Section 12900, or under common law, or both.



ARGUMENT

1. THE LEGISLATURE HAS DECLARED UNEQUIVOCALLY THAT DISCRIMINATION BECAUSE OF AGE VIOLATES PUBLIC POLICY. THEREFORE, ANY EMPLOYER WHO DISCRIMINATES BECAUSE OF AGE IS LIABLE FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY.

There are over thirty California statutes, outside of FEHA and its predecessor (FEPA), that prohibit age discrimination. Most of these are centered on the basics of life - shelter (Civ. Code, 51.2; Gov. Code, 65008), health care (Health & Saf. Code, 1317, 1317.3, 1365.5), education (Ed. Code, 260, 262, 262.1, 262.2, 66030, 69535), and employment (Ed. Code, 44100 [public schools], 87100 [community colleges]; Gov. Code, 18932, 19700, 19706, 19793 [state employment]; Lab. Code, 1777.6 [public works projects]; Pub. Util. Code, 3542 [highway carriers]; Unemp. Ins. Code, 2070, 2073, 2075, 2076 [1961 act regarding "Employment for Older Workers" - stating a public policy against age discrimination in employment] and Unemp. Ins. Code, 16000 et seq. [Training and Employment Programs for Older Californians Act of 1983]). The Legislature minced no words in 1983 when it declared age discrimination to be a serious public problem:

"The Legislature of the State of California finds and declares that the use of chronological age as an indicator of ability to perform on the job and the practice of mandatory retirement from employment are obsolete and cruel practices. The downward trend toward involuntary retirement at ages from 55 years represents a highly undesirable development in the utilization of California's worker resources. In addition, this practice is now imposing serious stresses on our economy and in particular on our pension systems and other income maintenance systems."

(Emphasis added)

The above paragraph is not a quotation from the Fair Employment & Housing Act (FEHA). Nor is it a quotation from any part of the Labor Code. Instead, it is Section 1 of Statutes, 1983, Chapter 666, which amended two sections of the Education Code, Section 88033 concerning age limits for community college employees, and Section 45134, concerning employment of those in elementary or secondary education. Subdivisions (a) and (b) of both sections say:

"(a) Notwithstanding any other provisions of law, no minimum or maximum age limits shall be established for the employment or continuance in employment of persons a part of the classified service.

"(b) Any person possessing all of the minimum qualifications for any employment shall be eligible for appointment to that employment, and no rule or policy, either written or unwritten, heretofore or hereafter adopted, shall prohibit the employment or continued employment, solely because of the age of any such person in any school employment who is otherwise qualified therefore."

Even earlier, in 1945 - 50 years ago - the Legislature declared public policy concerning persons employed under the state civil service system. Government Code Section 19700 says:

"The board, its executive officer, or any appointing power shall not adopt any rule, either written or unwritten, prohibiting the employment of any person in any state position who is otherwise qualified therefor, solely because of his or her age, except as provided in Section 18932."

Section 18932 exempts from the operation of Section 19700 persons employed in public health or safety or having the powers and duties of a peace officer.

In 1961, the Legislature spoke again by enacting Unemployment Insurance Code Section 2070, which is still in force today:

"It is the public policy of the State of California that manpower should be used to its fullest extent. This statement of policy compels the further conclusion that human beings seeking employment, or retention thereof, should be judged fairly and without resort to rigid and unsound rules that operate to disqualify significant portions of the population from gainful and useful employment. Accordingly, use by employers, employment agencies and labor organizations of arbitrary and unreasonable rules which bar or terminate employment on the ground of age offend the public policy of this state."

Pursuant to this 1961 act, the Employment Development Department is to cooperate with public and private institutions "to protect and safeguard the right and opportunity of workers [over 40] to seek, obtain, and hold employment without discrimination or abridgment on account of age," is to "study the problems of discrimination [in employment] on account of age," and is to publish information based on such study that "will tend to minimize or eliminate discrimination in employment on account of age." (Unemp. Ins. Code, 2073, 2075, 2076.)

Former Unemployment Insurance Code Section 2072, part of the original framework of this 1961 act, stated in part: "It is unlawful for an employer to refuse to hire or employ; or to discharge, dismiss, reduce, suspend, or demote any individual between the ages of 40 and 64 solely on the ground of age, except in cases where the law compels or provides for such action." (Stats, 1961, ch. 1623, 1, p. 3518.) This section was repealed in 1972 and replaced by a FEPA statute, former Labor Code Section 1420.1, which adopted the language just quoted. (Stats. 1972, ch. 1144, 1, 2, pp. 2211-2212.) In 1978, the Legislature bolstered this unlawful employment practice proscription by amending FEPA to declare that age discrimination in employment is contrary to the public policy of California (former Lab. Code, 1411) and that freedom from such discrimination is a civil right (former Lab. Code, 1412). (Stats. 1978, ch. 1361, 1, 2, p. 4514.) As noted, these FEPA age discrimination provisions on unlawful employment practice, public policy and civil rights were superseded by substantially identical provisions in FEHA. ( 12941, 12920 and 12921, respectively.)

In the "Training and Employment Programs for Older Californians Act of 1983" (Unemp. Ins. Code, 16000 et seq.; applying to persons 55 and older), the Legislature found a "continuing pattern of age discrimination in employment." (Id. at 16001, subd. (b).)

Under Section 19793, the State Personnel Board, in its annual report on affirmative action in employment, is to "include information to the Legislature of laws which discriminate or have the effect of discrimination on the basis of...age...."

What these statutes say loud and clear is that except for certain categories of workers for whom age is a bona fide occupational qualification, California has a firm, well-established policy applicable to all enterprises and all citizens alike prohibiting discrimination against the older employee, and has had such for many years. Such a clear statement of public policy is exactly what the Supreme Court had in mind when it decided Gantt v. Sentry Insurance, 1 Cal. 4th 1083 (1992).

The Court of Appeal itself recognized that not allowing a Tameny action for age discrimination in view of California's longstanding policy against same makes no sense whatsoever:

"We observe age discrimination has a broader demographic reach than all other prohibited categories of discrimination, including the constitutionally prohibited categories of race and sex (Cal. Const. Article I, Section 8), in that barring a premature demise, old age is a universal inevitability. Further, certain realities soon must find their way into law. Today's aging population enjoys mental acuity and physical vitality, and the Information Age requires intellectual rather than physical endeavor. It behooves our society to utilize fully the talents of this group, lest they become a burden on younger taxpayers. Not only does such discrimination deprive individuals of the right to be evaluated fairly and without resort to irrelevant criteria, but it also denies the state of the fullest talents of its people. (Section 12920)."

Stevenson typed opinion, p. 10.

The Court of Appeal emphasized "There was no repeal of the policy statement in Unemployment Insurance Code Section 2070 declaring age discrimination in employment to be contrary to the public policy of the state." Stevenson, p. 13. In urging this Court to grant review, the Court of Appeal noted the need for both society and the individual to be free from age discrimination:

"In addition, we live in a time of rising life expectancy, a rapidly expanding older population, and the desire, necessity and practice of many older individuals to remain active in the workforce due to economic need, personal fulfillment, a sense of duty to serve one's country, or for other reasons. Public policy in a civilized society, to support a common law cause of action for tortious wrongful discharge in violation of public policy, certainly should flow from the recognition of these truisms."

Stevenson, p. 18.

Law, logic and common sense tell us that Ms. Stevenson should have the right to pursue her action either under the FEHA or under common law pursuant to Rojo v. Kliger, 52 Cal. 3d 65 (1990) and Government Code Section 12993(a), or both.



2. AGE IS AN IMMUTABLE CHARACTERISTIC AND BECAUSE AGE AFFECTS ALL OF US, AGE DISCRIMINATION IS AN AFFRONT TO A HUGE AND GROWING SEGMENT OF AMERICAN CITIZENS.

The singer Bob Dylan once said that you don't have to be a weatherman to tell which way the wind is blowing. Likewise, you don't have to work at the Department of the Census or be a social demographer to know that America as a whole is getting older. Through advances in medicine and avoidance of known hazards to life and health, more people are living longer than ever before. But not only are people living longer; they are also living better. Gone are the days when someone at 55 or 60 had almost reached the end of his or her life span, with a concomitant destruction of the individual's physical and mental abilities. One need only look at the world of entertainment, at such dynamic and vital performers as George Burns, Bob Hope, Jessica Tandy, Hume Cronyn and many others, to realize that the ability to live a full, rewarding and professionally active life does not stop with the attainment of a given age. And as medical research and techniques improve, the numbers of individuals able to carry on productive careers far beyond the age at which they used to be dead is going to keep on going up.(1) Why should we let such productive citizens be consigned to the scrap heap?

Unfortunately while more and more citizens are enjoying more and more productive years, the older stereotypes remain. One need look no further than Ewing v. Gill Industries, 3 Cal. App. 4th 601 (1992) and Mangold v. California Public Utilities Commission, 67 F.3d 1470 (9th Cir. 1995) to see graphic examples of bigoted, age-related stereotypes. The tragedy - the real human tragedy - is that such stereotypical thinking leads exactly to the sort of cruel practices which the Legislature condemned in Chapter 666, Statutes, 1983.

It is precisely because more of us are living longer that age discrimination is as illegal and as destructive as discrimination based upon any other non-job-related classification. This Court should allow Ms. Stevenson's common law claim to proceed in order to provide an effective weapon against bigotry in the workplace.



3. RESEARCH TELLS US THAT UNTIL WE DISPEL THE MYTHS SURROUNDING THE OLDER WORKER WITH EFFECTIVE ENFORCEMENT OF PUBLIC POLICY, AGE DISCRIMINATION IS LIKELY TO INCREASE.

Studies reinforce what lawyers who handle age discrimination cases know from experience. Because the court is unlikely to have a copy, we append to this brief an article entitled "Refuting Ageist Stereotypes About Older Workers", excerpted from "Ageism: The Segregation of a Civil Right", by Cathy Ventrell-Monsees and Laurie McCann, original publisher and date unknown, reprinted in The Employee Advocate, Supplement Volume 23, Fall, 1993, pages 92-100. Ventrell-Monsees and McCann tell us that productivity is ageless, and point out that "some intellectual functions may even improve with age, particularly when older persons remain active and involved". Ibid. p. 93. They say that older persons who remain in the work force into their 60s, 70s or 80s are likely to represent a self-selected group of healthy individuals who cost an employer less for benefits than younger workers. Ibid. They emphasize that "professors, writers, lawyers, doctors, judges and many others remain motivated and are high achievers throughout their lives, perhaps in part because they control their jobs and their perceptions of their value to the job." Ibid. p. 94, emphasis added. They reinforce what employment lawyers know when they tell us that many older persons want and need to work: "Labor force participation rates for older women have been on the increase for many years. More older men are now remaining in the work force later in life and their numbers will continue to rise as the baby boomers age." Ibid. p. 95, fn. reference omitted.

They also describe a phenomenon which has been discussed little if at all as a contributor to discrimination - the fear of aging:

"The fear of aging also appears to contribute to discrimination. For example, if a manager in his 50s has an employee who isn't performing (who happens to be in his 60s), the manager may think, 'I don't want that (i.e., getting old and unproductive) to happen to me.' Since fear and avoidance often go hand-in-hand, the manager's reaction may be to remove the source of his fear about himself -- namely the older employee."

Ibid. pp. 95-96.

It is one thing to read about age discrimination. It is another thing to sit and counsel ex-employees aged 50 or 60 or above, who tell their attorney that despite days, weeks and months of pounding the pavement and answering every ad in a three county area, they keep getting the same reaction: "You are over-qualified!" But it is a real eye-opener to see what actually happens when an older employee tries to find a job for which he is qualified in the face of blatant discrimination. On June 9, 1994 the ABC television network in its program "Prime Time Live" produced a segment called "Age and Attitudes." Studio makeup artists took a man, Michael Ianello, age 37, and first made him up to appear to be 53 years old. He answered numerous ads for employment and went for interviews, usually to be told the same old You-Are-Overqualified refrain. Unknown to the employers, Mr. Ianello was being trailed by a video cameraperson, who caught much of the dialogue and the facial expressions on videotape.

The studio makeup technicians then made Mr. Ianello up to look 27, or 10 years younger than he really was. He applied for the same jobs that he had when he looked 53. To nobody's surprise, this time the interviewers and employers greeted him with open arms. And even when a television reporter interviewed some of the same employers and told them what they had done had been illegal, some of these employers couldn't care less!

(If the Court is interested to see it, we will provide a copy of that tape. Other parties may request same at their expense for duplicating.)

As America ages, the need for effective mechanisms to challenge age discrimination is greater and will become more so. Until employers learn that they cannot discriminate on the basis of age with impunity, they will continue to do so. Persons such as Ms. Stevenson should be given every legal tool available in order to combat what the California Legislature itself has recognized is a pervasive, growing national problem. For these reasons, we believe that this court should reinforce its historic commitment to ///

///

///

ending discrimination in the work place by allowing Ms. Stevenson's suit to go forward.



Respectfully submitted,



JOSEPH POSNER, INC.





By___________________________

JOSEPH POSNER,

Amicus Curiae on behalf of

Plaintiff Stevenson



Service List:



California Court of Appeals

Second Appellate District

Division Three

300 South Spring Street

Los Angeles, CA 90013



Hon. Coleman A. Swart, Judge

Los Angeles Superior Court

300 East Walnut

Pasadena, CA 91101



Todd Croutch, Esq.

O'Flaherty & Belgum

1000 North Central Avenue

Suite 300

Glendale, CA 91202



Fernando Olguin

Traber, Voorhees & Olguin

128 N. Fair Oaks Ave, Ste. 204

Pasadena, CA 91103



Antonio M. Lawson, Esq.

835 Mandana Boulevard

Oakland, CA 94610



Laurie McCann

AARP

601 E. Street, NW

Washington, DC 20049



Courtesy Copies to:



Fred Ashley, Esq.

2201 Dupont Drive

Suite 710

Irvine, CA 92715





Carla Barboza, Esq.

660 S. Figueroa St., Ste. 1700

Los Angeles, CA 90017





Nancy Bornn, Esq.

1411 5th Street, Ste. 200

Santa Monica, CA 90401





Mary Dryovage, Esq.

340 Pine Street

Suite 501

San Francisco, CA 94104





Ellen Lake, Esq.

4230 Lakeshore Avenue

Oakland, California 94610





Gary Laturno, Esq.

9255 Towne Center Drive

Suite 520

San Diego, California 92121





Barbara Lawless, Esq.

600 Montgomery Street

33rd Floor

San Francisco, CA 94111



Dolores Leal, Esq.

6300 Wilshire Blvd.

Suite 1500

Los Angeles, CA 90048



John McCarthy, Esq.

401 Harvard Avenue

Claremont, CA 91711



Cliff Palefsky, Esq.

535 Pacific Avenue

San Francisco, CA 94133



Steven Pingel, Esq.

3020 Old Ranch Pkwy, Ste. 320

Seal Beach, CA 90740



William Quackenbush, Esq.

1700 So. El Camino, Suite 408

San Mateo, CA 94402



James P. Stoneman, Esq.

100 W. Foothill Blvd.

Claremont, CA 91711



Chris Bello, Esq.

2320 Seventh St.

Berkeley, CA 94710



Teri Chaw

National Employment Lawyers Association

600 Harrison St., #535

San Francisco, CA 94107



TABLE OF CONTENTS



Page



Table of Authorities ii



REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS

ASSOCIATION FOR PERMISSION TO FILE AMICUS

CURIAE BRIEF IN SUPPORT OF PLAINTIFF AND

PETITIONER JOAN STEVENSON 1

AMICUS CURIAE BRIEF BY CALIFORNIA EMPLOYMENT

LAWYERS ASSOCIATION IN SUPPORT OF PLAINTIFF

AND PETITIONER JOAN STEVENSON 4

INTRODUCTION 4

1. THE LEGISLATURE HAS DECLARED UNEQUIVOCALLY

THAT DISCRIMINATION BECAUSE OF AGE VIOLATES PUBLIC POLICY. THEREFORE, ANY EMPLOYER WHO DISCRIMINATES BECAUSE OF

AGE IS LIABLE FOR WRONGFUL TERMINATION IN VIOLATION OF

PUBLIC POLICY. 4

2. AGE IS AN IMMUTABLE CHARACTERISTIC AND BECAUSE

AGE AFFECTS ALL OF US, AGE DISCRIMINATION IS AN

AFFRONT TO A HUGE AND GROWING SEGMENT OF AMERICAN CITIZENS. 10

3. RESEARCH TELLS US THAT UNTIL WE DISPEL THE

MYTHS SURROUNDING THE OLDER WORKER WITH EFFECTIVE

ENFORCEMENT OF PUBLIC POLICY, AGE DISCRIMINATION

IS LIKELY TO INCREASE. 12





TABLE OF AUTHORITIES



Case Page



Ewing v. Gill Industries,
3 Cal. App. 4th 601 (1992) 11

Gantt v. Sentry Insurance,
1 Cal. 4th 1083 (1992) 8

Mangold v. California Public Utilities Commission,
67 F.3d 1470 (9th Cir. 1995) 11





Other Authorities



"Refuting Ageist Stereotypes About Older Workers", excerpted from "Ageism: The Segregation of a Civil Right", by Cathy Ventrell-Monsees and Laurie McCann, original publisher and date unknown, reprinted in The Employee Advocate, Supplement Volume 23, Fall, 1993, pages 92-100 12

Civ. Code, 51.2 4

Ed. Code, 260, 262, 262.1, 262.2, 66030, 69535 4

Ed. Code, 44100, 87100 4

Education Code, Section 45134 5

Education Code, Section 88033 5

Gov. C., 12941, 12920 and 12921 8

Gov. Code, 65008 4

Gov. Code, 18932, 19700, 19706, 19793 4

Government Code Section 12900 4

Government Code Section 19700 6

Health & Saf. Code, 1317, 1317.3, 1365.5 4

Lab. Code, 1777.6 4

Pub. Util. Code, 3542 4

Section 1, Statutes, 1983, Chapter 666 5

Stats. 1972, ch. 1144, 1, 2, pp. 2211-2212 7

Stats. 1978, ch. 1361, 1, 2, p. 4514 8

Unemp. Ins. Code, 16000 et seq. 5, 8

Unemp. Ins. Code, 2070, 2073, 2075, 2076 4

Unemp. Ins. Code, 2073, 2075, 2076 7

Unemployment Insurance Code Section 2070 6

1. See, for example, U.S. News & World Report, June 12, 1995, "New Passages," p. 62, describing the effects of increased longevity on peoples' lives, and "Stop Working? Not Boomers," p. 70, emphasizing that people will want and need to work longer as time goes on.