I concur in the judgment of the court, but believe that the result can be supported on the narrow ground that a fundamental public policy against discrimination on the basis of age exists independent of the Fair Employment and Housing Act. Because an independent statutory expression of that policy exists the court need not address any broader question. Moreover, I do not agree with the conclusion of the majority that the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) itself may be the basis for finding a public policy that will support a common law tort action for wrongful termination in violation of public policy. That view is inconsistent with our recognition in Rojo v. Kliger (1990) 52 Cal.3d 65, 79, 81-82 [276 Cal.Rptr. 130, 801 P.2d 373] that the FEHA was not intended to create .new common law remedies outside the structure of the FEHA, but does preserve all preexisting common law remedies. (Gov. Code, § 12993, subd. (a).)
A firmly established, fundamental public policy against discrimination in employment on the basis of age independent of the FEHA has existed in Unemployment Insurance Code section 2070 since 1961 (Stats. 1961, ch. 1623, § 1, p. 3517), however. As we noted in Jennings v. Marralle (1994) 8 Cal.4th 121, 130-131 [32 Cal.Rptr.2d 275, 876 P.2d 1074], section 2070 of the Unemployment Insurance Code states: “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.”
This policy has been continuously recognized and enforced.1 Former section 2072 of the of the Unemployment Code made age-based discrimina*911tion an unlawful employment practice.2 When that section was repealed in 1972, age-based discrimination was made an unlawful employment practice by former section 1420.1 of the Labor Code (Stats. 1972, ch. 1144, § 1, p. 2211), and it has now been incorporated into the FEHA in Government Code section 12941. While the statutory proscription of age-based discrimination is now subsumed in the FEHA, the Legislature did not intend thereby to supplant any existing common law remedy. The Court of Appeal, reading statements in Jennings v. Marralle, supra, 8 Cal.4th at page 132, more broadly than their context warrants, concluded that the policy expressed in Unemployment Code section 2070 may not be the basis for a common law tort action for age discrimination against any employer. That opinion addressed only age-based discrimination by small employers whom the Legislature has consistently excluded from the reach of the public policy against age discrimination, however.
Since discrimination against older workers by other employers does violate a fundamental public policy of this state which was firmly established at the time plaintiff was discharged, I agree that defendant’s demurrer to plaintiff’s cause of action for wrongful termination in violation of a public policy against age discrimination should have been overruled.
I therefore concur in the judgment.
As is presently the case, the Legislature excluded small employers from compliance with this policy by excluding employers of less than six persons from the definition of “employer.” (Unemp. Ins. Code, § 2071.) No common law action would lie against a small employer for violation of the public policy expressed in Unemployment Insurance Code section 2070, therefore. (See Jennings v. Maralle, supra, 8 Cal.4th at pp. 135-136.)
Former section 2072 of the Unemployment Insurance Code provided: “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. This section shall not be construed to make unlawful the rejection or termination of employment where the individual applicant or employee failed to meet bona fide requirements for the job or position sought or held, or to affect bona fide retirement or pension programs; nor shall this section preclude such physical and medical examinations of applicants and employees as an employer may make or have made to determine fitness for the job or position sought or held.
"Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities and trade schools shall not, in and of themselves, constitute a violation of this chapter.
“This section shall not limit the right of an employer, employment agency, or labor union to select or refer the better qualified person from among all applicants for a job. The burden of proving a violation of this section shall be upon the person or persons claiming that the violation occurred.” (Stats. 1961, ch. 1623, § 1, p. 3518.)