AMERICAN NATIONAL INSURANCE COMPANY, Plaintiff and Appellant, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Respondent, 32 Cal. 3d 603

Opinion NEWMAN, J. Succinctly, the proceedings below and facts concerning us here were summarized by the Presiding Justice of Divison Four in the Second District of the California Courts of Appeal as follows: “This is an appeal by an employer from a judgment of the superior court upholding a decision of the State Fair Employment Practice Commission on review by administrative mandamus. The issue before the commission was whether the employer violated Labor Code

section 1420 in refusing employment to a man because of his elevated blood pressure which did not impair his ability to work but which the employer believed, upon medical advice, would expose him to a greater than normal risk of disability or death. . . . “In June 1975, American National Insurance Company (hereafter Company) employed Dale Rivard as a sales and debit agent, subject to approval of the home office. Between 1963 and 1968, Rivard had been employed by the Company for similar work.

After six weeks, the Company terminated the employment because he did not meet the Company’s health requirements for that position. “The work of a sales and debit agent is to go door-to-door in a specified residential district selling insurance and collecting premiums. Agents are expected to meet certain sales quotas and to be current in the collection of premiums. The Company regards the work of a sales and debit agent as stressful, and as a matter of policy does not hire persons with elevated blood pressure for that work.

When the Company terminated his 1975 employment, Rivard filed a complaint wih the commission alleging that he had suffered discrimination because of a physical handicap in violation of Labor Code

section 1420. “Following an administrative hearing, the commission decided that the Company had discriminated unlawfully against Rivard and ordered his reinstatement with back pay. The Company then petitioned the superior court for review of the commission’s decision. The court found that the commission’s findings were supported by the evidence and concluded that ‘high blood pressure is a protected physical handicap under the California Fair Employment Practice Act, Labor Code

section 1410 et seq. [FEHA].’ Accordingly, the superior court denied the Company’s petition. This appeal is from that judgment. ” Substantial Evidence The Company contends that the superior court erred first, because it refused to exercise its independent judgment on the evidence and, instead, used the substantial evidence test; second, because, regardless of the evidence, the FEHA does not apply to high blood pressure. Northern Inyo Hospital v. Fair Empl.

Practice Com. (1974) 38 Cal.App.3d 14, 23 [112 Cal.Rptr. 872] states: “Applying Bixby guidelines, Hospital’s right to establish its employment practices and procedures and to impose conditions of employment can in no sense be termed a fundamental vested right. While the right to pursue a lawful business or occupation is a fundamental right [citing cases], there is no vested right to conduct a business free of reasonable governmental rules and regulations (see Bixby v. Pierno, supra, 4 Cal.3d 130, 145-46 [93 Cal.Rptr. 234, 481, P.2d 242]; Beverly Hills Fed. S & L Assn. v.

Superior Court, 259 Cal.App.2d 306, 316-317 [66 Cal.Rptr. 183]).” We agree with that conclusion, and use here of the substantial evidence test therefore was appropriate. (Cf. Steams v.

Fair Employment Practice Com. (1971) 6 Cal.3d 205, 211 [98 Cal.Rptr 467, 490 P.2d 1155].) The trial court found as a fact that “[t]he record did not support petitioner’s contention that the real party in interest could not perform his duties or that he could not perform such duties in a manner which would not endanger his health or safety or the health or safety of others.” We agree with that finding, and the following excerpt from respondent’s brief illuminates reasons that to us seem persuasive: “Despite appellant’s doctor’s claim that Rivard would not take his medicine, it was uncontroverted that the appellant had a general policy of excluding all persons from the debit agent category if they manifested high blood pressure.

It was also uncontroverted that the appellant’s policy had nothing to do with the ability of [Rivard] to do the job. Inasmuch as these facts were undisputed, the trial court did not have to apply any standard of review with respect to them. There was never any personal examination of Rivard by the appellant’s physician. There was no prediction as to how long Rivard could work. Instead, appellant’s physician assumed that once Rivard fit into a specific category, he was to be summarily disqualified. There was absolutely no evidence to qualify the employer’s physician as a heart specialist.

Indeed, at one point in the hearing the appellant’s physician admitted to relying on morbidity tables which insurance companies use to adjust insurance rates. Such a person could hardly be considered an expert in determining the possibility of danger to Rivard’s health except in general and stereotypical terms.” Physical Handicap What next we must decide is whether the Legislature intended that in certain cases high blood pressure may be a “physical handicap” under the FEHA.

That statute proscribes unjustified discrimination based on “race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age . . . .”

Section 12926, subdivision (

h) of the act tells us that the phrase “‘[pjhysical handicap’ includes [1] impairment of sight, hearing or speech, or [2] impairment of physical ability because of amputation or loss of function or coordination . . . .” (Italics added.) Because in that clause the word the drafters chose was “includes” (rather than “means” or “refers to,” say) we infer that the Legislature did not endorse a restrictive definition. Instead it appears to have contemplated that the cognizant administrative officials and judges would consider all handicaps that are physical.

Nonphysical handicaps—mental, economic, etc.—by implication are excluded. Also excluded are various ills or defects that in fact are not handicapping; for example, certain kinds of digestive, respiratory, or skin disorders. The Company concedes that the list of handicaps in

section 12926, subdivision (

h) does not “purport to be exhaustive . . . .” Yet its efforts to distinguish between covered and noncovered handicaps disclose how useless in this case are the maxims ejusdem generis and noscitur a sociis. For example, the Company says that “additional handicaps [i.e., those covered though not listed] must be similar in nature to those ... set forth.” (Italics added.) To us, “similar in nature” means (1) that the illness or defect is physical, and (2) that it is handicapping.

Further, the Company urges, “the protected ‘physical handicaps’ are major physical impairments similar to those listed in the definition.” (Italics in original.) By no means, though, do the Legislature’s words imply that only major ills or defects are covered. Not all “impairment^] of sight, hearing, or speech” are major; nor are all “impairment^] of physical ability because of loss of function or coordination . . . .’’To infer that nonmajor impairments are excluded would flout even the coverages that the statute expressly identifies.

Finally, says the Company, “a large number of physical impairments, such as epilepsy, cerebral palsy and arthritis, presumably are protected.” Those three ills are physical, and often in fact they are handicapping. In neither the statute’s words nor its legislative history, however, do we perceive an intent to include epilepsy, cerebral palsy, and arthritis while excluding ills such as high blood pressure. What then is a “physical handicap” for purposes of the statute? Webster’s tells us that a handicap is “a disadvantage that makes achievement unusually difficult.” (Webster’s New Internal.

Dict. (3d ed. 1961) p. 1027.) Obviously a condition of the body which has that disabling effect is a physical handicap. Did the Legislature intend to cover only those health problems that are presently disabling? We think not.

Indeed it made present inability to perform a particular job efficiently, safely, and without danger to health one of the few defenses to a charge of discrimination. (§ 12940, subd. (a)(1).) The law clearly was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk. (See Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 794, 796 [175 Cal.Rptr. 548].) To limit “handicap” to present disabilities would defy logic.

In effect that would proscribe discrimination based on current, manifest, physical disfunction while allowing exclusion on the basis of conditions—like high blood pressure—that may handicap in the future but have no presently disabling effect. We should not conclude that the Legislature intended any such anomalous result. The Company argues next that hypertension is more appropriately deemed a “medical condition” than a handicap.

It notes that the Legislature prohibited discrimination on grounds of “medical condition” but curiously restricted the reach of that term to cured or rehabilitated cancer. (See § 12926, subd. (f): “‘Medical condition’ means any health impairment related to or associated with a diagnosis of cancer, for which a person has been rehabilitated or cured, based on competent medical evidence.”) We need not decide whether that bizarre definition implies that an unrehabilitated and uncured cancer patient is never physically handicapped.

Even more bizarre, though, would be our presuming a legislative conclusion that high blood pressure is always a medical condition, never a physical handicap, and thus is unprotected by the statute.

Common knowledge is to the contrary; high blood pressure is physical, and often it is handicapping. (See too § 12993, subd. (a): “The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof . . . .” Cf. § 12920: “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 abridgment on account of . . . physical handicap. . . .”) The judgment is affirmed. Bird, C.

J., Kaus, J., Broussard, J., and Reynoso, J., concurred. “At the time of the discharge, the pertinent part of Labor Code

section 1420 read as follows: ‘“It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except when based upon applicable security regulations established by the United States or the State of California: “‘(

a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical handicap, or sex of any person, to refuse to hire or employ him or to refuse to select him for a training program leading to employment, or to bar or to discharge such person from employment or from a training program leading to employment, or to discriminate against such person in compensation or in terms, conditions or privileges of employment. . . At our oral argument, counsel for the Company contended that it had never conceded the lack of an individual evaluation of Rivard’s condition.

The issue then was explored in letters from both parties; and nothing cited by the Company contradicts the premise that (1) uncontrolled high blood pressure in the range of table 8 of the standard morbidity charts was a presumptive basis for rejecting prospective sales and debit agents, and

(2) Rivard was rejected accordingly. When the action was filed the statute was known as the California Fair Employment Practice Act. (Former Lab. Code, § 1410 et seq.) In 1980 that statute was repealed and reenacted as part of the California Fair Employment and Housing Act. (Gov. Code, § 12900 et seq.) Here we refer sometimes to both statutes as “the act.”

Section references are to the Government Code unless otherwise indicated. In this opinion we address only the facts before us and engage in no analysis of the Legislature’s implied exemption of individuals whose handicaps are nonphysical.

Article I,

section 8 of the California Constitution states: “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. ” The phrase we have italicized is quite similar to that considered in In re Cox (1970) 3 Cal.3d 205, 216 [90 Cal.Rptr. 24, 474 P.2d 992], It was added to the Constitution in 1974, after Cox had been decided. (See also the first paragraph of art. 2 of the Universal Declaration of Human Rights (Dept. of State Pub.

No. 8961 (Nov. 1978) p. 4): “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Cf. Lillich & Newman, International Human Right: Problems of Law and Policy (1979) pp. 56-57 [“The Legal Status of the Universal Declaration of Human Rights”].) “The distinction made [in 1980] by the World Health Organization between impairment, disability and handicap does more than clarify

definitions. Historically, the main focus has been on the individual. This definition points to the socio-economic and structural obstacles that hinder participation. The acceptance of this perspective means that all of society is responsible for creating equal opportunity. Particularly, it emphasizes that handicaps are the social disadvantages that may arise from either an impairment or a disability; thus handicap is a loss or limitation of opportunities to take

part in the normal life of the community on an equal level with others. ” (Rep. of Advisory Com. for the Internal. Year of Disabled Persons (7 Oct. 1981) U.N. Doc. No. A/36/471/Add. 1, p. 27, italics added.)