State Personnel Board v. Fair Employment & Housing Commission

GRODIN, J.

I agree that the trial court erred in enjoining the Department of Fair Employment and Housing (DFEH) and the Fair Employment and Housing Commission (FEHC) from processing claims of discrimination by civil service employees, and therefore concur in the judgment. The Fair Employment and Housing Act (FEHA) reflects a legislative intent to afford civil service employees the benefits of that statute and, like the majority, I believe that intent can be effectuated by a process of accommodation that will not infringe upon the constitutional functions of the State Personnel Board (Board).

I write separately for two reasons. The first is to address an apparent point of disagreement between the majority opinion and that of Justice Lucas concerning whether a civil service employee who unsuccessfully invokes the procedures of the Board through a claim of discrimination may thereafter utilize the procedures of the FEHA as well. The majority imply that he may do so, notwithstanding a prior adverse determination by the Board *445 (ante, at p. 443), while Justice Lucas in his dissent assails such a procedure on the ground that it gives the employee “an undeserved second bite at the administrative apple” (post, at p. 446).

In my view, attempted resolution of this question in this case is both unnecessary and unwise. It is unnecessary because, as the majority observe (ante, at pp. 426-427), the Board treated the complaints filed by real parties in interest, not as complaints of discrimination on the basis of physical handicap, but as “medical appeals.” Thus, the Board never came to grips with, much less adjudicated, the claims which real parties in interest thereafter presented to the FEHC. What we have in hand is not a twice bitten apple but (to squeeze the metaphor) an apple and an orange.

Resolution of the election of remedies question in this case would be particularly unwise in light of the recent amendments to the Civil Service Act giving the Board remedial authority comparable to that possessed by the FEHC. (Stats. 1984, ch. 1754, § 6; § 19702, subd. (e).) (See ante, at p. 434, fn. 13.) The relationship of the two agencies under the amended statutory scheme involves issues best left for another day.

My second reason for writing separately is to focus upon a related aspect of this case which, in my view, deserves special emphasis. This is not a case of individual discrimination, in which the question is whether the employer acted with discriminatory motive in making a particular personnel decision. (Cf. McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [ 36 L.Ed.2d 668 , 93 S.Ct. 1817 ].) Real parties in interest attack the hiring criteria generally applicable to a classification in which they seek employment; and the basis of their attack is that the criteria, though neutral on their face, in fact operate to exclude a group protected against discrimination by the FEHA, and are not sufficiently job related to justify that discriminatory impact. (See Griggs v. Duke Power Co. (1971) 401 U.S. 424 [ 28 L.Ed.2d 158 , 91 S.Ct. 849 ].)

In the first type of case, the Board will not be called upon to take any action unless its jurisdiction has been specifically invoked. If its jurisdiction is invoked, its function (like that of the FEHC) will be to investigate a claim of discrimination by some other agency. In the second type of case, it is the Board itself that is responsible for the employment criteria which are in dispute. By approving those criteria, the Board has already determined, at least by implication, that they are job related. Exercise of FEHC jurisdiction in the second type of case thus poses, inevitably, a greater potential for conflict.

*446 Nonetheless, I agree with the majority that the mere potential for conflict is not enough to preclude FEHC jurisdiction, and that actual conflict can be avoided by appropriate accommodation, both on the part of the FEHC and, in the unlikely event that the dispute ends in litigation, by the reviewing court. In the latter event difficult questions may arise as to the weight to be given findings by the FEHC insofar as they are adverse to determinations by the Board. That is a bridge that need not be crossed in anticipation, however, and, as Justice Mosk suggests, perhaps not at all.

Gilbert (R. L.), J., * concurred.

Assigned by the Chairperson of the Judicial Council.