Stevenson v. Superior Court

BROWN, J.

I dissent.

Reflecting on the tradition of the common law, Llewellyn commends the “wisdom and value of moving into any new development with canny caution” and respect for the difficulties that can “grow out of letting a concept’s seeming corollaries take over without reference to the sense of the situation.” (Llewellyn, The Common Law Tradition, Deciding Appeals (1960) p. 281.)

*912This case presents an issue of first impression: whether to extend the common law tort of wrongful discharge in violation of public policy approved in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314] (Tameny) to circumstances in which the public policy is articulated in a statutory scheme that provides comprehensive remedies both to redress the aggrieved employee and to vindicate the underlying policy. As Llewellyn’s observations imply, any development in the common law must proceed only after considered deliberation as to its purpose and effect. (See also Mosk, The Common Law and the Judicial Decision-making Process (1988) 11 Harv. J.L. & Pub. Pol’y 35, 36 [“The vitality of the common law can flourish if the courts remain alert to their obligation and have the opportunity to change it when reason and equity so demand.”]; cf. Civ. Code, § 3510.) For the reasons that follow, I believe neither the rationale of Tameny nor the public policy against employment discrimination articulated in the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.)1 warrants enlargement of this cause of action.

FEHA is a comprehensive statute that carefully balances complementary administrative and judicial remedies not only to make whole victims of discrimination in the workplace, but also to penalize these unlawful business practices and prevent their recurrence. Permitting a parallel common law tort claim puts courts in the untenable position of using a legislative declaration of public policy as a touchstone to justify duplicative remedies that ultimately can serve only to frustrate legislative intent. In addition, recognizing a FEHA-based cause of action for wrongful discharge in violation of public policy contradicts the rationale of this exception to the at-will employment doctrine. When the Legislature has provided an adequate statutory remedy to fully protect the interests of both the employee and the public, the courts have neither reason nor need to intercede. The employee is not without redress and the public policy can be vindicated through the statute. Finally, even without adding this qualification to the Tameny doctrine, I would deny plaintiff relief because she has failed to establish the public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial.”

I.

A FEHA-based Tameny claim duplicates remedies currently available to victims of employment discrimination while defeating the goals of FEHA by circumventing legislatively designed procedures for achieving its broad public policy “to protect and safeguard the right and opportunity of all persons” to be free from discrimination in the workplace. (§ 12920.)

*913As this court has explained on numerous occasions, FEHA is a comprehensive statutory scheme “to provide effective remedies which will eliminate . . . discriminatory practices” in employment based on protected characteristics including age. (§ 12920.) To this end, “[t]he statute creates two administrative bodies: the Department [of Fair Employment and Housing (the Department)], whose function is to investigate, conciliate, and seek redress for claimed discrimination (§§ 12901, 12930), and the [Fair Employment and Housing] Commission [(the Commission)], which performs adjudicatory and rulemaking functions (§§ 12903, 12935). An aggrieved person may file a complaint with the Department (§ 12960), which must promptly investigate (§ 12963). If the Department deems a claim valid it seeks to resolve the matter—in confidence—by conference, conciliation, and persuasion. (§ 12963.7.) If that fails or seems inappropriate, the Department may issue an accusation to be heard by the Commission. (§§ 12965, subd. (a), 12969.)” (Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 45 [276 Cal.Rptr. 114, 801 P.2d 357] (Peralta).) If the Department fails to act within 150 days after the filing of a complaint or earlier determines not to take administrative action, it issues a right-to-sue letter authorizing a private lawsuit. (§ 12965, subd. (b).) The right-to-sue letter is a prerequisite to judicial action. (Rojo v. Kliger (1990) 52 Cal.3d 65, 83 [276 Cal.Rptr. 130, 801 P.2d 373] (Rojo).)

“[A] primary purpose of the alternative systems of redress for employment discrimination is to permit efficient and prompt administrative disposition— without cost to the victim—of claims that are amenable to conciliation or to corrective equitable remedies, and thus do not warrant a full-scale judicial proceeding with its attendant expense and delay [citation], while reserving to the judicial system, with its attendant constitutional and statutory safeguards, those statutory claims that seek significant nonquantifiable monetary recompense or that the complainant wishes to join with nonstatutory causes of action.” (Peralta, supra, 52 Cal.3d at p. 55, fn. omitted; Rojo, supra, 52 Cal.3d at pp. 83-84.)

“[T]he compliance structure of the FEHA encourages cooperation in the administrative process.” (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 218 [185 Cal.Rptr. 270, 649 P.2d 912] (Commodore).) It also affords both the Department and the Commission an initial opportunity to utilize their respective expertise to eliminate “a particular unlawful employment practice and to prevent its recurrence.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1390 [241 Cal.Rptr. 67, 743 P.2d 1323], italics added (Dyna-Med); see State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 432 [217 Cal.Rptr. 16, 703 P.2d 354] (State Personnel Bd.).) As to the individual complainant, *914the goal is to “make the aggrieved employee whole in the context of employment” (Dyna-Med, supra, 43 Cal.3d at p. 1387); and the Commission may order reinstatement, hiring, promotion, and backpay as well as limited compensatory damages. (§ 12970, subd. (a).) More generally, “on finding harassment [or discrimination] the Commission will order such corrective measures as will benefit both the complainant and others, including that the employer cease and desist the practice, report the manner of compliance, and take other remedial action as appropriate. In addition, the Commission will thereafter conduct [or direct the Department to conduct] a compliance review to see that the employer is fully obeying the order. (§ 12973.) Hence the administrative procedure serves the statutory purpose of providing effective remedies that will eliminate the discriminatory practice and prevent its recurrence, not just as to the immediate victim, but as to all employees, present and future. (§ 12920.)” (Peralta, supra, 52 Cal.3d at p. 53, fns. omitted; State Personnel Bd., supra, 39 Cal.3d at pp. 429, 432; see Rojo, supra, 52 Cal.3d at p. 83; cf. Shaner v. Horizon Bancorp. (1989) 116 N.J. 433, 436-438 [561 A.2d 1130, 1131-1132] (Shaner) [discussing similar aspects of the comprehensive remedial scheme of New Jersey’s Law Against Discrimination].) In Jennings v. Marralle (1994) 8 Cal.4th 121 [32 Cal.Rptr.2d 275, 876 P.2d 1074] (Jennings), the court recognized the significance of this remediation authority in effectuating the broader goals of FEHA: The Legislature’s “aim was not so much to redress each discrete instance of individual discrimination as to eliminate the egregious and continued discriminatory practices of economically powerful organizations.” (Id. at p. 134.)

As an alternative to the administrative process, a complainant may seek judicial relief upon the issuance of a right-to-sue letter. In that event, “[t]he same remedies, along with [unlimited] compensatory and punitive damages, may be awarded by a superior court in a private enforcement action under the FEHA . . . .” (State Personnel Bd., supra, 39 Cal.3d at p. 434; Commodore, supra, 32 Cal.3d at p. 215.) Although by statute a private right of action is contingent on the Department’s decision not to prosecute, or the lapse of 150 days (§ 12965, subd. (b)), “the Director and the general counsel of the Department [have previously] advise[d the court] that right-to-sue letters are the rule, not the exception, because the Department rarely is able to complete investigations, pursue conciliation, and issue accusations within the 150-day period. For that reason, a right-to-sue letter is issued, even in advance of 150 days, to any person who states in writing that he wants to withdraw his complaint and file a civil action.” (Commodore, supra, 32 Cal.3d at p. 218, fn. 8; see State Personnel Bd., supra, 39 Cal.3d at p. 433, fn. 11; Peralta, supra, 52 Cal.3d at p. 54; Dyna-Med, supra, 43 Cal.3d at pp. 1401-1402; Carter v. Smith Food King (9th Cir. 1985) 765 F.2d 916, 923; *915see also Gelb & Frankfurt, California’s Fair Employment and Housing Act: A Viable State Remedy for Employment Discrimination (1983) 34 Hastings L.J. 1055, 1066, fn. 87.)

The director has nonetheless also informed the court in the past that “if a complainant requests a right-to-sue letter in order to bring a civil suit, current Department policy is to issue the letter only after the Department has invited the respondent to make settlement offers and settlement is not achieved.” (Rojo, supra, 52 Cal.3d at p. 84, fn. 11 [letter from the director of the Department to the Chief Justice of the Supreme Court dated June 9, 1989]; Commodore, supra, 32 Cal.3d at p. 218.) Such a policy is consistent with “the compliance structure of the FEHA[, which] encourages cooperation in the administrative process. . . . That helps deter strategies of ‘holding out’ for court damages in inappropriate cases. Further, the possibility that an action might lead to punitive damages may enhance the willingness of persons charged with violations to offer fair settlements during the conciliation process.” (Commodore, supra, 32 Cal.3d at p. 218, fn. omitted.) Administrative procedures also allow a compliant employer to rectify discriminatory practices without costly and protracted litigation, thus benefiting all employees.

In sum, a complainant ultimately has the option to seek redress under the more streamlined, informal, and cost-effective administrative procedures or to pursue litigation. With its broad remedial and oversight authority, the Commission can fully realize the “vital policy interests embodied in FEHA, i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation. [Citations.]” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123 [257 Cal.Rptr. 665]; cf. Shaner, supra, 116 N.J. at p. 438 [561 A.2d at p. 1132].) At the same time, the statutory scheme recognizes that judicial relief may be appropriate under particular circumstances, as long as the Department has the opportunity to “determinen that the claimant has satisfied all of the FEHA’s requirements and is entitled to bring a civil action against the offending individual or organization.” (Carter v. Smith Food King, supra, 765 F.2d at p. 923.)

The Legislature has expressly declared, “It is the existing policy of the State of California . . . that procedures be established by which allegations of prohibited harassment and discrimination may be filed, timely and efficiently investigated, and fairly adjudicated, and that agencies and employers be required to establish affirmative programs which include prompt and remedial internal procedures and monitoring so that worksites will be maintained free from prohibited harassment and discrimination .... To further this intent, the Legislature enacts [FEHA].” (Stats. 1984, ch. 1754, § 1, pp. *9166403-6404; see also Stats. 1992, ch. 911, § 1, subd. (a) [“primary public policy of [FEHA] is the prevention and elimination of unlawful employment practices”].) Thus, as with FEHA-type statutes in other states, “the remedies provided to eliminate prohibited discrimination form part of the anti-discrimination policy.” (Makovi v. Sherwin-Williams Co. (1989) 316 Md. 603, 621 [561 A.2d 179, 188] (Makovi); Shaner, supra, 116 N.J. at p. 439 [561 A.2d at p. 1140] [antidiscrimination statute “encompasses . . . substantive standards and procedures that are uniquely designed to further broader constitutional and legislative goals”].) Moreover, as the rationale of Jennings makes clear, to fulfill FEHA’s public policy courts must consider “the legislative intent reflected in [its] various provisions . . . .” (Jennings, supra, 8 Cal.4th at p. 124; see also Brown v. Superior Court (1984) 37 Cal.3d 477, 486 [208 Cal.Rptr. 724, 691 P.2d 272] [wide choice of venue “important consideration” in removing barrier to filing and prosecuting FEHA actions]; Makovi, supra, 316 Md. at p. 623 [561 A.2d at p. 189] [judicial determination whether to recognize tort of abusive discharge based on antidiscrimination statute “does not isolate the legislative remedy from the public policy goal and does not consider the latter in a vacuum”].)

Transmuting a FEHA complaint into a Tameny claim upsets this carefully crafted statutory scheme by enabling the employee to seek the same judicial redress but entirely bypass the administrative review normally a prerequisite to such an action. Such bypass effectively forecloses any likelihood of “conference, conciliation, [or] persuasion” to resolve the dispute or rectify the discriminatory practice (§ 12931), compromising the Legislature’s ameliorative purpose with no perceptible advantage to the employee, who simply gains a duplicative judicial remedy limited to tort damages. (See Shaner, supra, 116 N.J. at p. 455 [561 A.2d at p. 1141]; see also Green v. Wyman-Gordon Co. (1996) 422 Mass. 551, 558 [664 N.E.2d 808, 813]; Clay v. Advanced Computer Applications (1989) 522 Pa. 86, 92 [559 A.2d 917, 920]; Bruffett v. Warner Communications, Inc. (3d Cir. 1982) 692 F.2d 910, 919.) Determining the viability of a Tameny claim is not an abstract or theoretical process by which the court looks no further than a statutory reference to “public policy,” thereby disassociating it from the very context that gives it substance.

Judicial interference with legislative prerogatives is particularly unwarranted where, as here, the Legislature continues to develop the statutory scheme in response to changing needs of employees, employers, and the public. For example, in the wake of this court’s decisions in Dyna-Med and Peralta, FEHA was amended to authorize the Commission to seek “actual damages” for “emotional injury” up to $50,000 (in combination with administrative fines) and up to $150,000 for violations of Civil Code section 51.7. *917(§ 12970, subd. (a)(3) & (4); see Stats. 1992, ch. 911, §§ 1, 6.) At the same time, the Legislature requires the Commission to prove “an aggrieved person has sustained actual injury” and has set forth the criteria for making that determination. (§ 12970, subd. (b).) Although the Commission may not award punitive damages (§ 12970, subd. (d)), it may assess administrative fines up to specified limits “to vindicate the purposes and policies of this part” when it finds the respondent “has been guilty of oppression, fraud, or malice”; the statute also outlines the “relevant evidence” for making such a finding. (§ 12970, subds. (c) & (d).) If the accusation prays for emotional injury damages or administrative fines, the respondent may elect to “transfer the proceedings to a court in lieu of a hearing . . . .” (§ 12965, subd. (c)(1).) As part of these amendments, the Legislature directed that the Department report “how many respondents elected to transfer the proceedings to court” and that the Commission determine “the adequacy of the amount available to compensate victims of discrimination and administrative fines” permitted under section 12970, subdivision (a)(3). (Stats. 1992, ch. 911, § 9.) By this monitoring process the Legislature can determine whether the impact of these changes comports with the decision to override DynaMed and Peralta.

Even this limited example highlights the necessary balance of interests the Legislature strives to maintain in executing the collective public policy undergirding FEHA: employees must be protected from discrimination and recompensed for violations of their rights; employers must rectify unlawful practices and maintain compliance without undue economic burden; the public must remain confident that antidiscrimination policies are enforced without resulting in a hostile business environment.2 (Cf. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 [4 Cal.Rptr.2d 874, 824 P.2d 680] *918(Gantt) [Basing Tameny claims on constitutional or statutory provisions strikes “the proper balance among the interests of employers, employees and the public.”].) The legislative process is uniquely suited to achieve the appropriate accommodation of competing interests. When present remedies are deemed adequate to redress employee complaints, the courts should act with particular restraint.

The United States Supreme Court’s analysis in Bush v. Lucas (1983) 462 U.S. 367 [103 S.Ct. 2404, 76 L.Ed.2d 648] is instructive. In that case, the petitioner asked the court “to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors.” (Id. at p. 368 [103 S.Ct. at p. 2406].) Because the violation arose in an employment relationship “governed by comprehensive procedural and substantive provisions giving meaningful remedies,” the high court determined “it would be inappropriate ... to supplement that regulatory scheme with a new judicial remedy.” (Ibid.) Acknowledging Congress had not prohibited the exercise of its remedial authority, the court also recognized it must take into account a “ ‘range of policy considerations’ ” in deciding whether to create a new remedy. (Id. at p. 376 [103 S.Ct. at p. 2410].) Of particular significance, the court noted the dramatic increase over the years in the protection afforded federal civil servants against termination and other retaliation for exercising their free speech and association rights. (Id. at pp. 381-386 [103 S.Ct. at pp. 2413-2416].) This development had culminated in substantial job protection as well as an administrative process by which aggrieved employees can challenge adverse actions by their superiors. (Id. at pp. 386-388 [103 S.Ct. at pp. 2415-2417].)

The court summarized the relevance of these circumstances as follows: “Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. . . . The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy *919for violations of employees’ First Amendment rights.” (Bush v. Lucas, supra, 462 U.S. at p. 388 [103 S.Ct. at pp. 2416-2417].) After identifying various advantages and disadvantages, the court concluded, “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancing governmental efficiency ánd the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to the courts.” (Id. at p. 389 [103 S.Ct. at p. 2417].)

In my view, the court’s intercession will likely upset the careful balance the Legislature has achieved after more than 35 years of fine-tuning FEHA. (Cf. Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 301-303 [250 Cal.Rptr. 116, 758 P.2d 58] (Moradi-Shalal); Hedlund v. Superior Court (1983) 34 Cal.3d 695, 704 [194 Cal.Rptr. 805, 669 P.2d 41, 41 A.L.R.4th 1063].) Like the United States Supreme Court, we should be wary of interposing a common law remedy that substantially displaces a statutory scheme forged to eliminate discrimination in the workplace— especially when the court-created claim affords little, if any, additional benefit to the victim and its presumed benefit to the public is entirely speculative.

II.

I would deny plaintiff’s Tameny claim for an additional reason related to the concern for its disruptive impact on FEHA.

For the first time, this court squarely confronts a case in which a common law action for wrongful discharge in violation of public policy derives solely from a comprehensive remedial statute specifically intended to vindicate the predicate public policy. On careful scrutiny, such an action is inconsistent with the rationale of Tameny and its seminal antecedent, Petermann v. International Brotherhood of Teamsters (1954) 174 Cal.App.2d 184 [344 P.2d 25] (Petermann). This conclusion finds support in the decisions of numerous sister-state jurisdictions and federal courts that have determined an additional wrongful discharge cause of action is an unwarranted exception to the at-will employment doctrine.

The reasoning of the Maryland Supreme Court in Makovi, supra, 316 Md. 603 [561 A.2d 179], is particularly discerning. In that case, the plaintiff brought a common law claim for abusive discharge in violation of the public policy against sex discrimination promulgated in the Maryland Fair Employment Practices Law. (See Md. Ann. Code art. 49B, §§ 14-18 (1986).) Like FEHA, the statute does not preempt other causes of action for discrimination. (Makovi, supra, 316 Md. at pp. 608-609 [561 A.2d at pp. 181-182].) *920After recapitulating its reasons for originally granting a remedy for abusive discharge, the court concluded that the antidiscrimination statute would not sustain such relief: “ ‘ “[This] Court was focusing on what it perceived to be a void in the law—a discharge not expressly and directly precluded by some specific statute but which nevertheless contravened some other general statement of public policy. If there were already an adequate alternative remedy in existence, the legitimate interest of the employee that the Court identified as being deserving of recognition would indeed have attained that recognition, and the newly created common law remedy would be unnecessary to assure its protection. This suggests the notion that the new cause of action was not intended to supplant existing statutory remedies, at least not those specifically crafted and effective to provide an adequate remedy for the unlawful act.” ’ [Citation.]” (Id. at pp. 611-612 [561 A.2d at p. 183].)

The Makovi court also considered similar development in the common law of other jurisdictions and noted, “The general theme running through the wrongful discharge ‘first round’ decisions of other courts is the absence of any other remedy for the employee discharged in contravention of public policy. The tort was created so that the prospect of a remediless employee would not undercut the policies and goals that other laws sought to further. Consequently, a majority of courts faced with the issue before us has held that the tort does not lie for a discharge allegedly motivated by some discrimination which is prohibited by statute where that statute confers a remedy.” (Makovi, supra, 316 Md. at pp. 612-613 [561 A.2d at p. 183].)

The Supreme Court of Hawaii applied the same reasoning in rejecting a Tameny-type claim predicated on that state’s antidiscrimination law, Hawaii Revised Statutes section 378. “A Parnar claim [Parnar v. Americana Hotels, Inc. (1982) 65 Hawaii 370 [652 P.2d 625], Hawaii’s equivalent of Tameny] was ‘intended to apply to a “narrow class of cases” where the wrongful discharge action is seen as necessary to effectuate the public policy at stake. If, however, the statutory or regulatory provisions which evidence the public policy themselves provide a remedy for the wrongful discharge, provision of further remedy under the public policy exception are unnecessary. If the legislature has considered the effect of wrongful discharge on the policies which they are promoting, provision by the courts of a further remedy goes beyond what the legislature itself thought was necessary to effectuate that public policy.’ [Citations.] [¶ . . .By making the discharge of an employee ‘because of [a protected characteristic or status]’ unlawful [citation], and providing a remedial scheme for that discriminatory employment practice, the legislature itself has provided the means for enforcing the public policy that [plaintiff] seeks to vindicate through his Parnar claim. In other words, even before Parnar was decided, the legislature had already done what a *921Parnar claim is designed to do, that is, modify the employment at-will doctrine to further an important public policy.” (Ross v. Stouffer Hotel Co. (Hawai’i) Ltd. (1994) 76 Hawaii 454, 464 [879 P.2d 1037, 1047].)

In reaching their conclusions, these courts and many others have understood that Tameny-type claims are premised on closing a gap that would otherwise leave public policy vulnerable to employers that could flout it with impunity through their hapless employees. (See Rest.2d Torts, § 874A, com. h.) “Confronted with this ‘right without a remedy’ scenario, courts recognized a common law action in order to fill the legislative gap. [Citation.] When a statutory remedy is available, there is no gap and the justification for judicial creativity is absent. [Citation.]” (Crews v. Memorex Corp. (D.Mass. 1984) 588 F.Supp. 27, 29.) In sum, “the whole rationale undergirding the public policy exception is the vindication or the protection of certain strong policies of the community. If these policies or goals are preserved by other remedies, then the public policy is sufficiently served.” (Wehr v. Burroughs Corp. (E.D.Pa. 1977) 438 F.Supp. 1052, 1055; Melley v. Gillette Corp. (1985) 19 Mass.App.Ct. 511, 511-512 [475 N.E.2d 1227, 1228], affd. (1986) 397 Mass. 1004 [491 N.E.2d 252] [rejecting Tameny-type claim based on statutory prohibition against age discrimination]; Shaner, supra, 116 N.J. at pp. 453-454 [561 A.2d at pp. 1140-1141].)3

*922Limiting common law claims for wrongful discharge in violation of public policy to cases in which the Legislature has not afforded comprehensive statutory relief fully comports with the reasoning in Tameny and Petermann. In both cases, the employee faced the Hobson’s choice of termination or “continued employment. . . contingent upon his commission of a felonious [or other illegal] act at the instance of his employer . . . (Petermann, supra, 174 Cal.App.2d at p. 189; Tameny, supra, 27 Cal.3d at p. 174.) The Petermann court acknowledged that “[t]he threat of criminal prosecution would, in many cases, be a sufficient deterrent [to suborning or committing perjury] upon both the employer and employee .... However, in order to more fully effectuate the state’s declared policy against perjury, the civil law, too, must deny the employer his generally unlimited right to discharge an [at-will] employee . . . when the reason for the dismissal is the employee’s refusal to commit perjury.” (Petermann, supra, 174 Cal.App.2d at p. 189.)

When an employer jeopardizes a fundamental public policy such as the administration of justice, the right to discharge may be limited both “by statute” and “by considerations of public policy.” (Petermann, supra, 174 Cal.App.2d at p. 188; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 668 [254 Cal.Rptr. 211, 765 P.2d 373] (Foley); Tameny, supra, 27 Cal.3d at p. 172.) In Petermann and Tameny, no statute protected the employee and the public from the employer’s attempts to contravene the public welfare; therefore, the courts perforce had to invoke policy considerations. (Tameny, supra, 27 Cal.3d at p. 177; see also Gantt, supra, 1 Cal.4th at p. 1090; Foley, supra, 47 Cal.3d at p. 670.) The implicit corollary to this rationale is that an existing remedy adequate to the task of defending the interests at stake obviates the need for any further protection. (Cf. Moradi-Shalal, supra, 46 Cal.3d at p. 304.) This deference to legislative priorities also underscores the *923reasoning of Gantt, which makes a constitutional or statutory provision the requisite source of public policy. (Gantt, supra, 1 Cal.4th at p. 1095.)

As previously noted, “FEHA establishes a comprehensive scheme for combating employment discrimination. [Citations.] As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. [Citation.]” (Brown v. Superior Court, supra, 37 Cal.3d at p. 485.) To that end, it provides for a broad array of administrative and judicial remedies intended and adequate to vindicate the policies it reflects; indeed, the remedies are integral to accomplishing its goals. (Stats. 1984, ch. 1754, § 1, p. 6403.) There is no void for this court to fill, no legislative gap. As the Petermann court would see it, the public policy of this state would not “be seriously impaired” if employees were denied a FEHA-based Tameny claim. (Petermann, supra, 174 Cal.App.2d at p. 189; cf. Jennings, supra, 8 Cal.4th at p. 136.)

Applying such a limitation to these claims does not raise a question of FEHA preemption or exclusivity. The court’s task is to define the parameters of a common law tort action for wrongful discharge in violation of public policy, not to interpret FEHA qua a statutory scheme “to provide effective remedies which will eliminate . . . discriminatory practices [in employment].” (§ 12920; cf. Rojo, supra, 52 Cal.3d 65.) The proper focus is thus the evolving contours of the common law, not the scope of the predicate legislation. Just as this court has in past decisions tethered Tameny claims to fundamental and well-established public policies grounded in a statute or the Constitution and intended to inure to the benefit of the public, it should now further refine its criteria to require that there be no competing comprehensive remedial scheme already protecting the interests of the aggrieved employee and society. This is a question of judicial restraint not statutory construction.

This restriction also does not contravene the construction of FEHA articulated in Rojo, supra, 52 Cal.3d 65. There, the court held that exhaustion of administrative remedies was a prerequisite only to litigation under the statute, which “does not displace any causes of action and remedies that are otherwise available to plaintiffs.” (Id. at p. 82, fn. omitted.) In addition to their FEHA claims, the plaintiffs in Rojo asserted their employer had violated the constitutional prohibition against sex discrimination; because this cause of action was independent of FEHA, the court allowed them to proceed under Tameny without exhausting administrative remedies. (Id. at pp. 89-91.) In the present circumstance, however, the question is not one of displacement but of duplication. The Legislature may not have precluded *924FEHA-based Tameny claims but that is a different inquiry from whether this court should afford a common law remedy on the same basis. Plaintiff’s Tameny claim is not “outside the ambit of statutory protection” (id. at p. 81); it is wholly derivative of and dependent on FEHA as its source of public policy. (See Jennings, supra, 8 Cal.4th at p. 125 [“no other statute or constitutional provision bars age discrimination”]; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490 [156 Cal.Rptr. 14, 595 P.2d 592] [FEHA’s antecedent FEPA (Fair Employment Practices Act) “in no sense declaratory of preexisting common law doctrine”].) As we explained in Jennings, section 12920 “reflects an intent to create new rights within the FEHA statutory scheme while leaving existing rights intact, not intent to create new common law rights.” (Jennings, supra, 8 Cal.4th at p. 135.) Rojo notwithstanding, a FEHA-based Tameny claim can be no more expansive than its predicate.

This proposed limitation is quite narrow and would apply only when, as here, adequate statutory remedies are available. When necessary to fill legislative gaps and to effectuate public policy, Tameny claims would still be available consistent with their rationale. The intensity of the majority’s animosity toward such a modest proposal is indeed curious for by definition there is nothing inexorable about the development of the common law. The court created the tort of wrongful discharge in violation of public policy; the court has in the past demarcated its scope; the court may further delimit its application as “reason and equity so demand.” (Mosk, The Common Law and the Judicial Decision-making Process, supra, 11 Harv. J.L. & Pub. Pol’y at p. 36.) In expanding the public policy exception to cases in which the statutory predicate incorporates a comprehensive remedial scheme, the majority cite no unmet need, articulate no injustice lacking redress. Rather, they ironically seek to justify an expansion of court-made law by claiming—to paraphrase Flip Wilson—“the [Legislature] made [us] do it.” The Legislature’s failure to make FEHA exclusive does not compel this court to create duplicative remedies. This is not an issue of legislative intent or acquiescence, but of common law evolution consistent with statutory policy.

A clear majority of courts faced with precisely the same opportunity for expansion of the common law have prudently declined the temptation and have refused to recognize Tameny-type claims when “the same statute that enunciates the public policy . . . also provides the structure for pursuing a claim for [wrongful discharge] in contravention of its terms.” (Grzyb v. Evans, supra, 700 S.W.2d at p. 401; see ante, fn. 3.) Although refusal is sometimes based on legislative intent, courts have also consistently recognized that the rationale of the public policy exception does not extend to such cases because there simply is no inequity for the common law to *925mitigate.4 Significantly, many of these decisions arose in the context of statutory schemes prohibiting employment discrimination, and several specifically concerned claims of age discrimination.5 These cases articulate a principled framework for determining when to invoke a common law exception to the at-will employment doctrine; their persuasiveness lies not in their numbers but in the force of their logic.

III.

Even without rejecting her Tameny claim because the statutory remedy adequately protects and vindicates the public policy at issue, I find plaintiff has failed to meet at least two of its criteria: that the public policy against age discrimination articulated in FEHA “inures to the benefit of the public at large” and that it is “fundamental.” (Foley, supra, 47 Cal.3d at p. 669.)

With respect to the “public benefit,” the majority conclude “there can be little doubt” this element is satisfied in part because “most California residents either are now or will become over-40 employees, thus creating an extraordinarily broad class of potential victims of age discrimination in employment.” (Maj. opn., ante, at p. 895, fn. omitted.) Granted. But “public” policy adequate to support a Tameny claim is not a matter of demographics; even a majority of the populace could not, simply by virtue of their numbers, establish the requisite societal benefit.

Nor does invoking FEHA’s general policy statement suffice. (§ 12920.) As previously discussed, the statutory scheme implicates a broader array of *926policy considerations. Retaining an older employee who no longer performs satisfactorily for fear of costly litigation can be as disruptive to the work environment as a discriminatory discharge. In its own respect, the hiring and advancement of younger workers serves the public interest as fully as the retention of older, more experienced workers. More to the point, even in an expanding economy the number of positions available in the workplace remains finite. Thus, although retaining older workers and promoting younger ones are not mutually exclusive goals, the inherent competition of the job market creates an inevitable tension. Perfect accommodation will undoubtedly remain elusive; however, FEHA is a reasonable effort to protect both the individual’s interest in discrimination-free employment and the broader public interest in vindicating that policy while maintaining a healthy business climate in California. The statutory scheme also reflects a legislative preference in achieving these policies for initiating the process of redress with conciliation and mediation rather than hit-and-miss litigation.

In gauging whether a particular policy is “public” in this context, our discussion in Foley offers considerable guidance. The plaintiff alleged he was wrongfully terminated because he reported to his employer that his immediate supervisor was suspected of embezzlement at another job. (See Lab. Code, § 1102.5.) The court rejected his Tameny claim because “the duty of an employee to disclose information to his employer serves only the [latter’s] private interest.” (Foley, supra, 47 Cal.3d at p. 671.) “The absence of a distinctly ‘public’ interest in this case is apparent when we consider that if an employer and employee were expressly to agree that the employee has no obligation to, and should not, inform the employer of any adverse information the employee learns about a fellow employee’s background, nothing in the state’s public policy would render such an agreement void. By contrast, in the previous cases asserting a discharge in violation of public policy [, e.g., Tameny and Petermann], the public interest at stake was invariably one which could not properly be circumvented by agreement of the parties.” (Id. at p. 670, fn. 12; see also Gantt, supra, 1 Cal.4th at p. 1090.)

An agreement requiring the employee to retire at some designated age over 40 would not contravene any societal interest; thus, the policy against age discrimination does not meet this element of a Tameny claim. (Cf. Rittenband v. Cory (1984) 159 Cal.App.3d 410 [205 Cal.Rptr. 576] [upholding constitutionality of aged-based benefit reduction provisions of Judges’ Retirement Law]; Vance v. Bradley (1979) 440 U.S. 93 [99 S.Ct. 939, 59 L.Ed.2d 171] [upholding constitutionality of compulsory retirement of foreign service officers at age 60]; Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307 [96 S.Ct. 2562, 49 L.Ed.2d 520] [upholding constitutionality of compulsory retirement of police officers at age 50].) Such an *927agreement would in effect be the equivalent of an employment contract for a specified term calculated according to the employee’s age.

The fact the Legislature has recognized the “opportunity to seek, obtain and hold employment without discrimination because of’ age as a “civil right” (§ 12921) further suggests the employee’s policy interest in FEHA is substantially personal. As a general rule, civil rights are those guaranteed to the individual by constitution or statute. (See Black’s Law Dict. (4th ed. 1968) p. 1487, col. 2; Webster’s New World Dict. (3d college ed. 1988) p. 257.) The public’s interest incorporates, but also transcends, the employee’s because it extends to an overarching concern for a vigorous state economy as well.

I also disagree with the majority’s conclusion the policy against age discrimination is fundamental in the sense required to establish a Tameny claim. (See Sands Regent v. Valgardson, supra, 105 Nev. at pp. 439-440 [777 P.2d at p. 900].) Because they “have identified certain considerations” presumably relevant to the analysis (maj. opn., ante, at p. 895), the majority find this element satisfied notwithstanding their acknowledged failure to articulate a test for making the determination. Discrimination based on age is not, however, like race and sex discrimination. It does not mark its victim with a “stigma of inferiority and second class citizenship” (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 19 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]); it is the unavoidable consequence of that universal leveler: time. (See Schuck, The Graying of Civil Rights Law: The Age Discrimination Act of 1975 (1980) 89 Yale L.J. 27, 33-34 (Schuck).)

The United States Supreme Court pointedly drew the distinction in Massachusetts Bd. of Retirement v. Murgia, supra, 427 U.S. 307, a case challenging the constitutionality of a Massachusetts statute mandating retirement of police officers at age 50. “While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” (427 U.S. at p. 313 [96 S.Ct. at p. 2567]; Schmidt v. Superior Court (1989) 48 Cal.3d 370, 389 [256 Cal.Rptr. 750, 769 P.2d 932] [declining to apply strict scrutiny to aged-based classifications]; see also Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 37-38 [219 Cal.Rptr. 133, 707 P.2d 195].) The aging process is by definition irreversible; but age is not an “immutable” characteristic comparable to race and sex, i.e.; “a status into which the class members are locked by the accident of birth.” (Sail’er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 18.) “While the age of each *928of us at any particular time is the certain result of the date of our birth, the progression through the stages of life is simply a natural process to which every one of us is subject. As a result, no member of an age group labors under any disability not encountered by every other member of society at some point in time. In that regard, age cannot be equated with race ... or sex.” (Kubik v. Scripps College (1981) 118 Cal.App.3d 544, 551 [173 Cal.Rptr. 539].)

FEHA itself reflects a recognition that some age-based distinctions are acceptable. (See §§ 12941, 12942; see also §§ 75075-75079; cf. Civ. Code, §§ 51.2, 51.3 [authorizing age discrimination in housing “to meet the physical and social needs of senior citizens”].) Furthermore, the legislative response to age discrimination in employment and elsewhere has resulted primarily from changing demographics. (See Schuck, supra, 89 Yale L.J. at pp. 40-41.) The California Constitution prohibited sex discrimination as early as 1879 (Cal. Const., art. XX, former § 18); race and several other characteristics were added in 1974 (Cal. Const., art. I, § 8), but age remains conspicuously absent from the list. On the other hand, a substantial number of the statutes cited by the majority protecting against age discrimination (maj. opn., ante, at pp. 896-897) were enacted much more recently.6 Technological changes in the workplace rather than fundamental social policies have also influenced some of this legislation. In enacting the Training and Employment Programs for Older Californians Act of 1983 (Unemp. Ins. Code, § 16000 et seq.), the Legislature specifically noted that the decline in civilian labor force participation of persons aged 55 to 64 was in part attributable to “[n]ew technologies, which have made individuals’ job skills obsolete.” (Id., § 16001.) Thus, unlike race and sex, the various prohibitions against age discrimination arise not from any fundamental character, but from the realization more and more of the population needs such protection.7 In reality, as baby boomers grow older, our society is becoming as solicitous of age as we once were fascinated by youth and beauty.

IV.

To deny plaintiff a FEHA-based Tameny claim is not to condone or countenance discrimination in employment because of age or on any other *929invidious basis. On the contrary, it recognizes that the Legislature has vigorously defended the public policy underlying FEHA and provided comprehensive remedies to redress and rectify violations. The only question before us is whether any other considerations justify the court in displacing these legislative efforts.

The peripatetic development of the common law tort action for wrongful discharge in violation of public policy has until now proceeded with a measure of judicial caution. (See Jennings, supra, 8 Cal.4th 121; Gantt, supra, 1 Cal.4th 1083; see also Foley, supra, 47 Cal.3d 654.) This restraint has reflected both an appreciation for protecting employees and the public interest and an understanding that “[tjhe expansion of tort remedies in the employment context has potentially enormous consequences for the stability of the business community.” (Foley, supra, 47 Cal.3d at p. 699; see Gantt, supra, 1 Cal.4th at p. 1095.) The majority’s holding departs dramatically from this circumspect path, and substantially untethers Tameny claims from their rationale. Before taking such a step, I would heed the words of William Penn: “Have a care therefore where there is more sail than ballast.”8

I would affirm the judgment of the Court of Appeal.

Further unspecified statutory references are to the Government Code.

As another example of the Legislature’s concern for balancing the respective interests implicated in FEHA, the 1992 amendments incorporate provisions of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) for the purpose of “strengthen[ing] California law in areas where it is weaker than the [ADA] [including reasonable accommodation of employees with mental disabilities] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].” (Stats. 1992, ch. 913, § 1.) The ADA applies only to employers with 25 or more employees, which was the initial threshold number in FEHA with respect to individuals with mental disabilities. (§ 12940, subd. (0(1).) Broader application to all employers having 15 or more employees was phased in within 18 months. (§ 12940, subd. (0(1); see § 12926, subd. (d)(2).)

At the same time, the Legislature enacted section 12940.3 directing various agencies to undertake “a study or survey of the costs, including litigation and reasonable accommodation expenses and other impacts on California employers of 15 or more employees, resulting from compliance with [the ADA] . . . .” The study is in part to “provide a basis for a recommendation to the Legislature and the Governor concerning whether the hardships imposed upon businesses outweigh the benefits to persons with disabilities when the requirements of [the ADA] are extended to California employers of 5 to 14 . . . employees” “by amending [FEHA] to include people with mental disabilities as a protected class.” The designated *918agencies are to “consider whether the additional requirements or consequences of being subject to the additional requirements will impose a significant hardship on employers of 5 to 14 . . . employees.” (§ 12940.3.) If the study discloses no significant hardship, “legislation should be introduced to require that employers with between 5 and 14 employees are covered by the requirements of [the ADA].” (Ibid.) Pending the study, the Legislature intends “voluntary compliance” without altering existing provisions. (Ibid.)

Accord, Walt v. State (Alaska 1988) 751 P.2d 1345, 1353, footnote 16; Corbin v. Sinclair Marketing, Inc. (Colo.Ct.App. 1984) 684 P.2d 265, 266 (“public policy exception ... is not available when [the] statute at issue provides to [the] employee a wrongful discharge remedy”); Atkins v. Bridgeport Hydraulic Co. (1985) 5 Conn.App. 643, 648 [501 A.2d 1223, 1226] (declining to permit Tameny-type claim based on employment discrimination statute); Nolting v. National Capital Group, Inc. (D.C. 1993) 621 A.2d 1387, 1389; Ross s. Stouffer Hotel Co. (Hawai’i) Ltd., supra, 76 Hawaii at page 464 [879 P.2d at page 1047]; Mein v. Masonite Corp. (1984) 124 Ill.App.3d 617, 619 [80 Ill.Dec. 154, 464 N.E.2d 1137, 1139], affirmed (1985) 109 Ill.2d 1 [92 Ill.Dec. 501, 485 N.E.2d 312] (rejecting Tameny-type claim based on statutory prohibition against age discrimination; law “contains a comprehensive series of remedies for violations of the policy therein stated”); Grzyb v. Evans (Ky. 1985) 700 S.W.2d 399, 401 (rejecting Tameny-type claim based on employment discrimination statute: “Where the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute. [Citations.]”); Makovi, supra, 316 Md. at page 626 [561 A.2d at page 190]; Dudewicz v. Norris-Schmid, Inc. (1993) 443 Mich. 68, 79 [503 N.W.2d 645, 650]; Sands Regent v. Valgardson (1989) 105 Nev. 436, 440 [777 P.2d 898, 900] (“Legislature has addressed the gravity of violating Nevada’s public policy against age discrimination by defining the extent of the remedy available to parties injured by such discrimination.”); Howard v. Dorr Woolen Co. (1980) 120 N.H. 295, 297 [414 A.2d 1273, 1274] (rejecting Tameny-type claim based on statutory prohibition against age discrimination); Provens v. Stark Cty. Bd. of Mental Ret. (1992) 64 Ohio.St.3d 252, 255-261 [594 N.E.2d 959, 961-965] (same; no need for courts to “fill the void”); List v. Anchor Paint Mfg. Co. (Okla. 1996) 910 P.2d 1011, 1015 (no common law action for violation of statutory prohibition against age discrimination); Walsh v. Consolidated Freightways, Inc. (1977) 278 Or. 347, 352 [563 P.2d 1205, 1208-1209]; Cross v. Eastlund (1990) 103 Or.App. 138 [796 P.2d 1214] (declining to permit Tameny-type claim *922based on employment discrimination statute); Clay v. Advanced Computer Applications, supra, 522 Pa. at pages 90-95 [559 A.2d at pp. 919-921] (same); Epps v. Clarendon County (1991) 304 S.C. 424, 426 [405 S.E.2d 386, 387]; Bourque v. Wausau Hosp. Center (1988) 145 Wis.2d 589, 597-599 [427 N.W.2d 433, 436-437] (rejecting Tameny-type claim based on employment discrimination statute); Allen v. Safeway Stores Inc. (Wyo. 1985) 699 P.2d 277, 284 (same); Smith v. F.W. Morse & Co., Inc. (1st Cir. 1996) 76 F.3d 413, 428-429 (applying Maine law in declining to permit Tameny-type claim based on employment discrimination statute); Polson v. Davis (10th Cir. 1990) 895 F.2d 705, 709-710 (same, applying Kansas law); Fellows v. Earth Const., Inc. (D.Vt. 1992) 794 F.Supp. 531, 538, vacated on other grounds 805 F.Supp. 223 (same, applying Vermont law); Prewitt v. Factory Motor Parts, Inc. (W.D.Mo. 1990) 747 F.Supp. 560, 565-566 (applying Missouri law); Steinbach v. Northwestern Nat. Life Ins. Co. (D.Minn. 1989) 728 F.Supp. 1389, 1294 (applying Minnesota law in declining to permit Tameny-type claim for violation of statutory prohibition against age discrimination); see also federal cases cited in Makovi, supra, 316 Md. at page 617 [561 A.2d at page 186].

See, e.g., Corbin v. Sinclair Marketing, Inc., supra, 684 P.2d at page 267; Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn.App. at page 648 [501 A.2d at p. 1226]; Ross v. Stouffer Hotel Co. (Hawai’i) Ltd., supra, 76 Hawaii at page 464 [879 P.2d at p. 1047]; Makovi, supra, 316 Md. at pages 612-621 [561 A.2d at pages 183-188]; Shaner, supra, 116 N.J. at pages 453-454 [561 A.2d at pp. 1140-1141]; Provens v. Stark Cty. Bd. of Mental Ret., supra, 594 N.E.2d at pages 961-962; List v. Anchor Paint Mfg. Co., supra, 910 P.2d 1011, 1013-1014; Walsh v. Consolidated Freightways, Inc., supra, 278 Or. at pages 351-352 [563 P.2d at pp. 1208-1209]; Allen v. Safeway Stores Inc., supra, 699 P.2d at page 284; Bush v. Lucas, supra, 462 U.S. at page 388 [103 S.Ct at pp. 2416-2417]; Bruffett v. Warner Communication, Inc., supra, 692 F.2d at page 919 (applying Pennsylvania law); Prewitt v. Factory Motor Parts, Inc., supra, 747 F.Supp. at pages 565-566; Crews v. Memorex Corp., supra, 588 F.Supp. at page 29.

See Mein v. Masonite Corp., supra, 124 Ill.App.3d 617, 619 [80 Ill.Dec. 154, 464 N.E.2d 1137, 1139] (statute provided “comprehensive series of remedies” as well as limited judicial review); Melley v. Gillette Corp., supra, 19 Mass.App.Ct. 511 [475 N.E.2d 1227]; Sands Regent v. Valgardson, supra, 105 Nev. 436 [777 P.2d 898]; Howard v. Dorr Woolen Co., supra, 120 N.H. 295 [414 A.2d 1273]; Shaner, supra, 116 N.J. 433 [561 A.2d 1130]; List v. Anchor Paint Mfg. Co., supra, 910 P.2d 1011; Steinbach v. Northwestern Nat. Life Ins. Co., supra, 728 F.Supp. 1389 (applying Minnesota law); cf. Bennett v. Hardy (1990) 113 Wn.2d 912 [784 P.2d 1258] (Tameny-type action allowed for claim of age discrimination because statute provided right but no remedy).

See, e.g., Civil Code section 51.2 (1984); Education Code sections 260 (1982), 262 (1982), 262.1 (1988), 262.2 (1988), 66030 (1991), 69535 (1976); Government Code sections 19793 (1977); Health and Safety Code sections 1317.3 (1987), 1365.5 (1990); Unemployment Insurance Code section 16000 et seq. (1983).

In support of their conclusion that plaintiff has identified a fundamental public policy, the majority also cite statutes similar to FEHA in numerous other jurisdictions. (Maj. opn., ante, at p. 897.) As noted, at least seven courts have rejected Tameny-type claims predicated on statutory prohibitions against age discrimination in employment. (Ante, at p. 925, fn. 5.)

Some Fruits of Solitude.