# Warriner v. Unemployment Insurance Appeals Board

> California Court of Appeal · May 15, 1973 · 32 Cal. App. 3d 353

URL: https://www.frixlaw.com/law-library/cases/9729133

## Case

- **Full name:** EDITH E. WARRINER, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent; INDUSTRIAL CONTROL SYSTEMS, Real Party in Interest and Respondent
- **Court:** California Court of Appeal
- **Decided:** May 15, 1973
- **Citations:** 32 Cal. App. 3d 353; 108 Cal. Rptr. 153; 1973 Cal. App. LEXIS 985
- **Precedential status:** Published
- **Opinion:** Dissent by Jefferson
- **Judges:** Kingsley, Jefferson
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved in part by Sanchez v. Unemployment Insurance Appeals Board, 36 Cal. 3d 575 (1984).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9729133

## Opinion text

JEFFERSON, Acting P. J.
I dissent. The judgment should be reversed. The majority have determined that a competent female employee, directly affected on the job by the discriminatory practices of her employer based upon sex, may not voluntarily terminate her employment as the result of such practices and seek work elsewhere without forfeiting her right to unemployment insurance benefits payable by the state. The majority decision is erroneous because it is based upon a misinterpretation of the Unemployment Insurance Code. Furthermore, the decision raises serious constitutional questions and is contrary to public policy expressions of our Legislature. The ruling as made sets a dangerous precedent for the denial of unemployment insurance compensation to other persons who are members of minority groups and subjected to discrimination in employment.
As I understand the reasoning behind the majority’s narrow construction of the Unemployment Insurance Code, it appears that they are saying that since the purpose of the legislation is to provide temporary economic assistance to the unemployed, this petitioner had no right to terminate her employment while work was still available to her “at full economic compensation” and apply for benefits, regardless of the attendant circumstances. I do not think the Legislature had ever intended the Unemployment Insurance Code to be interpreted in such a fashion; the existing case law certainly does not reflect the majority view.
The code is primarily based upon legislative concern for those persons unemployed “through no fault of their own.” (Unemp. Ins. Code, § 100.) To that extent, it is economic legislation. However, it is also remedial social legislation subject to liberal construction. (California Human Resources Dept. v. Java (1971) 402 U.S. 121 [ 28 L.Ed.2d 666 , 91 S.Ct. 1347 ].)
*361 Unemployment Insurance Code section 1256, which provides for disqualification of those unemployed persons who have been guilty of work-related “misconduct” or who have left their most recent employment without “good cause” has been liberally construed. The burden of proving disqualification falls upon the employer, not the employee, when an applicant’s eligibility for benefits is in dispute. (Maywood Glass Co. v. Stewart, 170 Cal.App.2d 719 [ 339 P.2d 947 ]; 37 Ops.Cal.Atty.Gen. 18 (1961).) The language employed in section 1256 itself conveys legislative recognition that there can be “good cause” for leaving employment even when work is still available. No “availability of work” limitation on “good cause” ié. set forth therein, and one should not be read into the section by judicial decision, as the majority attempts to do here.
“Good cause” as employed in the code has been described by the California Supreme Court as: “. . . an adequate cause, a cause that comports with the purposes of the Unemployment Insurance Code and with other laws.” (Italics added.) (Syrek v. California Unemployment Insurance Appeals Board, 54 Cal.2d 519, 529 [ 7 Cal.Rptr. 97 , 354 P.2d 625 ].) In California, “good cause” justifying termination may be work-related or due to the employee’s personal circumstances. (California Portland Cement Co. v. California Unemployment Insurance Appeals Board, 178 Cal.App.2d 263 [ 3 Cal.Rptr. 37 ].) Reduction in wages has been held “good cause.” (Bunny’s Waffle Shop v. Cal. Emp. Com., 24 Cal.2d 735 [ 151 P.2d 224 ].) More recently, “good cause” was found when the employment of a bearded male ended as the result of his refusal to shave off his beard upon his employer’s request. The continued availability of work was not allowed to support a denial of benefits by the state, because the employee was exercising a constitutionally protected right. (King v. California Unemployment Ins. Appeals Bd., 25 Cal.App.3d 199 [ 101 Cal.Rptr. 660 ].) 1 Obviously, the courts have considered circumstances other than economic in determining eligibility under the Unemployment Insurance Code. I find it *362 impossible to regard the termination of Mrs. Warriner as not for “good cause,” in view of King and the other cases cited herein.
There are other equally important reasons why the majority decision is not well founded. It ignores the requirement that the state must show a “compelling interest” to protect before it may deny unemployment insurance benefits to an applicant attempting to exercise constitutional rights. The state has not shown such an interest here. On the contrary, the denial of benefits by the state, affirmed by my fellow judges, constitutes support for the discriminatory practices of the petitioner’s private employer.
It seems hardly necessary to point out that under our present law, a person, including a female, does have the right not to be discriminated against in employment. That right extends not only to obtaining employment but to holding it as well, without being demoted or discharged because of discrimination. (Cal. Const., art. XX, § 18; Lab. Code, §§ 1410-1432, amended in 1970 to include sex as a prohibited basis for discrimination in employment; Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1 [ 95 Cal.Rptr. 329 , 485 P.2d 529 , 47 A.L.R.3d 351 ]; title VII, Federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-2(a).)
In the King case ( 25 Cal.App.3d 199, 204 ), it was said: “We first note that claimant is not challenging the reasonableness or validity of his discharge by the employer; he is advancing his constitutional argument only as to the state’s action in denying him unemployment compensation benefits. . . .
“. . . the United States Supreme Court held that the disqualifying provision of state law [South Carolina] was constitutionally defective, as it pertained to the claimant, because it operated to infringe upon her First Amendment right to free exercise of religion (Sherbert v. Verner, supra, 374 U.S. 398 at pp. 402-405 [ 10 L.Ed.2d 965 at pp. 969-971 , 83 S.Ct. 1790 ] and that ‘no compelling state interest’ had been shown which would justify such infringement. (Citation.)”
The reasoning employed in Sherbert and King applies to the case before us as well. At the administrative hearing below, the employer freely admitted that the course of conduct pursued with respect to Mrs. Warriner was based .upon a sexually discriminatory policy. No effort was made to justify it. It is obvious that the duties involved in office management are normally not of a nature which would bring the position within a bona fide occupational disqualification based upon sex. The duties are not such that only a suitable male could perform them. The employer’s course of conduct resulted in the infringement of Mrs. Warriner’s rights. *363 The fact that she had not, at the time of her departure, actually been replaced is not controlling; she had already been asked to and was engaged in training her replacement at the request of her employer, whose motivation was discrimination. Her rights had already been affected on the job. In view of these facts, and in the absence of a showing of a “compelling state interest,” the state could not constitutionally deny Mrs. Warriner unemployment insurance.
Finally, the majority decision reflects social attitudes and resultant legal thinking of many years past. It certainly does not reflect the legislative expression of public policy contained in Labor Code section 1411: “It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, or sex.” The Legislature made it abundantly clear in 1970 that it wished to end sexual discrimination in employment.
The majority have stated that the petitioner, Mrs. Warriner, should have filed charges against her employer pursuant to fair employment practices legislation. I do not disagree with that, but such action would not provide her with the economic sustenance she is entitled to pursuant to the Unemployment Insurance Code. Nothing therein requires her to file charges against her employer, and such action would not change the economic result. It is unrealistic to assume that Mrs. Warriner would have remained welcome at Industrial Control Systems after filing such charges. To suggest that under the circumstances presented here an employee must force the employer to discharge her is untenable. In any event, the employer’s power to discharge is not involved in our consideration of the state’s denial of compensation. If Mrs. Warriner had terminated and filed charges, she still would not have gotten unemployment insurance. If she had filed charges and been allowed to remain on the job, her personal discomfort would probably have substantially increased. The alternatives suggested are neither fair nor constitutional.
Nowhere in the Sherbert decision (cited supra) was it suggested that an applicant for unemployment insurance must “exhaust” other possible legal remedies before pursuing rights available pursuant to state unemployment insurance legislation.
The plight of this particular petitioner, Mrs. Warriner, is unfortunately not an uncommon one. She had performed competently for her employer, and the record discloses not one act on her part that justified the treatment she received. She was a female, however—and not a young one. The em *364 ployer decided to replace her for openly expressed reasons which on their face constituted a violation of present law.
The majority refer to the “full economic compensation” Mrs. Warriner was receiving at the time of her departure. The employer’s response to Mrs. Warriner’s complaint about the inequity of salary vis-a-vis the young male trainee was to “remedy” the inequity by “raising” her salary to the young man’s level. The response is indicative of the fact that discrimination in employment may be open, and it may also operate in more subtle ways. It should not be assumed that it is an expression of equality to compensate a female supervising employee of ten years’ duration at the same rate of pay afforded to a six-month male trainee, for the same work.
I can see no justification for denying unemployment insurance benefits to this petitioner.
Appellant’s petition for a hearing by the Supreme Court was denied July 12, 1973. Mosk, J., was of the opinion that the petition should be granted.
Cf. McCrae v. California Unemployment Ins. Appeals Bd., 30 Cal.App.3d 89 [ 106 Cal.Rptr. 159 ], wherein hair grown elsewhere on the head was not afforded the same First Amendment protection; McCrae was found guilty of work-related “misconduct” within the meaning of Unemployment Insurance Code section 1256 when he refused to tailor the length of his hair to meet his employer’s requirements. Other cases considering the “misconduct” disqualification reflect liberal construction: mere bumbling on the job, for example, is not “misconduct”; the employee’s acts must constitute a “wanton” and “wilful” disregard for the employer’s interests. (Maywood Glass Co. v. Stewart, cited supra.) More recently, an employee facing a demotion, who refused to train another worker, was found not guilty of “misconduct” (Lacy v. California Unemployment Ins. Appeals Bd., 17 Cal.App.3d 1128 [ 95 Cal.Rptr. 566 ]); nor was the alcoholic employee guilty of “misconduct” in Jacobs v. California Unemployment Ins. Appeals Bd., 25 Cal.App.3d 1035 [ 102 Cal.Rptr. 364 ], in the absence of evidence relating his condition to poor work performance.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729133. Public record. Not legal advice.