Opinion
[Copyrighted Material Omitted] Reprinted without change for tracking pending review and disposition by the Supreme Court.
Superior Court of Sacramento County, No. CV540585, Ronald W. Tochterman, Judge.
COUNSEL
Porter, Scott, Weiberg & Delehant and Ned P. Telford for Plaintiff and Appellant.
Foley, Lardner, Weissburg & Aronson and Stephen W. Parrish for Defendant and Respondent. OPINION
PUGLIA, P. J.
Plaintiff June McKeon appeals from a judgment of dismissal entered following the granting of summary judgment in favor of defendant Mercy Healthcare Sacramento. Plaintiff claims defendant discriminated against her in her employment on the basis of her race and sex. The trial court ruled her employment discrimination claim, based solely on the provisions of the Fair Employment and Housing Act (FEHA or the Act), fails as a matter of law because defendant is not an employer subject to the Act. We shall reverse.
The Act prohibits an employer from discriminating in employment with regard to certain protected classifications, including race and sex. (Gov. Code, section 12940, subd. (a); hereafter statutory references to sections of an undesignated code are to the Government Code.) The Act excludes from the definition of employer and thereby exempts from its provisions employers who are religious corporations not organized for private profit. (section 12926, subd. (d) (1).)
As we explain, the Act's religious exemption applies only to nonprofit religious corporations organized primarily or exclusively for religious purposes under the Nonprofit Religious Corporation Law. (Corp. Code, section 9110 et seq.) Defendant Mercy Healthcare Sacramento is organized for public and charitable purposes under the Nonprofit Public Benefit Corporation Law. (Corp. Code, section 5110 et seq.) Accordingly, defendant is not exempt from the antidiscrimination provisions of the Act.
Plaintiff, a Black female, is a registered nurse (RN). She was hired by defendant in November 1990 to work in that capacity at Mercy General Hospital. Mercy General Hospital is one of four hospitals owned and operated by defendant Mercy Healthcare Sacramento. Defendant and its parent company, Catholic Healthcare West, which is also organized as a nonprofit public benefit corporation, are sponsored by various Religious Orders (Sponsoring Congregations) of the Roman Catholic Church. The Sponsoring Congregations are organized under the auspices, and as an integral part, of the Roman Catholic Church for the purpose of furthering its teachings and faith. The corporate bylaws of defendant provide there shall be one voting member of the corporation-Catholic Healthcare West.
It is defendant's precept to support and conduct corporate activities in a manner consistent with the philosophy of the Sponsoring Congregations, subject to the moral and ethical principles of the Roman Catholic Church, and with full adherence to the Ethical and Religious Directives for Catholic Health Facilities. Despite its significant religious affiliations, defendant is not incorporated under California law as a nonprofit religious corporation. Defendant's articles of incorporation state its purposes are public and charitable. Defendant offers medical services to the entire community, regardless of age, nationality, sex or creed. Like any secular hospital, defendant's principal functions are to provide medical care and healing. Profession of Catholic faith is not required of patients nor of employees, although defendant will not permit any medical service or procedure to be performed in any of its facilities which is contrary to the teachings of the Roman Catholic Church.
For example, the Roman Catholic Church's Ethical and Religious Directives proscribe euthanasia in all forms, as well as all forms of therapeutic sterilization, nontherapeutic abortions, and artificial insemination.
In March 1993, defendant established the new job category of RN III which offered a promotional opportunity for plaintiff. Plaintiff applied for the promotion, but alleges her application was deliberately stalled in order to allow defendant to hire two Caucasian males for the two RN III positions then open.
Plaintiff filed a charge of employment discrimination with the California Department of Fair Employment and Housing. In January 1994, the department issued plaintiff a notice of case closure and informed her of her right to file a civil action.
Plaintiff filed a complaint alleging a violation of the Act in that she was denied promotion to the position of RN III because of her race and sex. Defendant answered the complaint and moved immediately for summary judgment, claiming that as a nonprofit religious corporation it is exempt from the Act.
Plaintiff opposed the motion, asserting that because defendant is incorporated as a nonprofit public benefit corporation for public and charitable purposes, defendant is not a nonprofit religious corporation within the meaning of section 12926, subdivision (d) (1), and thus is not exempt from the Act's antidiscrimination provisions.
Following hearing and argument, the trial court granted defendant's motion for summary judgment. The court ruled that the undisputed evidence establishes defendant is a religious corporation not organized for private profit within the meaning of the FEHA religious exemption. The trial court concluded the fact defendant is organized under the Nonprofit Public Benefit Corporation Law, and not under the Nonprofit Religious Corporation Law, is of no legal significance, as there is no reason to believe the Legislature intended the FEHA exemption to encompass only nonprofit corporations organized under the Nonprofit Religious Corporation Law.
A motion for summary judgment raises only questions of law concerning the construction and effect of supporting and opposing papers. (Arriaga v. Loma Linda University (1992) 10 Cal.App.4th 1556, 1560 [13 Cal.Rptr.2d 619].) Our review proceeds according to the same general principles applicable at the trial level. We analyze the issues framed by the pleadings, determine whether the moving party has established facts that negate the opposing party's claims and, where the moving party has made a prima facie showing justifying summary judgment, determine whether the opposing party has demonstrated the existence of a triable issue of material fact. (Ibid.)
Plaintiff's complaint for race and sex discrimination is premised upon the provisions of the Act. (section 12900 et seq.) The Act prohibits an employer from discriminating against an employee on the basis of "race ... color ... [or] sex .... in compensation or in terms, conditions or privileges of employment." (section 12940, subd. (a).) These provisions apply only to an "employer" as defined by the Act.
An employer subject to the Act is "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly ...." (section 12926, subd. (d).) " 'Employer' does not include a religious association or corporation not organized for private profit." (section 12926, subd. (d) (1).) Section 12926, subdivision (d) (1) is a jurisdictional bar to claims of employment discrimination brought against nonprofit religious corporations. (See Arriaga v. Loma Linda University, supra, 10 Cal.App.4th at p. 1561 ["[Plaintiff] does not dispute that [defendant] was organized as a nonprofit religious corporation under California laws. As such, [defendant] was excluded from coverage under FEHA."].)
The issue in this appeal is whether defendant, a nonprofit public benefit corporation organized for public and charitable purposes with extensive religious affiliations, qualifies as a nonprofit religious corporation within the meaning of the Act. Plaintiff insists it does not. We agree.
California law provides for three major types of nonprofit corporations: public benefit, mutual benefit, and religious. (See Corp. Code, section 5000 et seq.) "Each of these types of nonprofit corporations is governed by a separate self-contained part of the Nonprofit Corporation Law, known respectively as the Nonprofit Public Benefit Corporation Law (Corp. [Code,] sections 5110-6910), the Nonprofit Mutual Benefit Corporation Law (Corp. [Code,] sections 7110-8910), and the Nonprofit Religious Corporation Law (Corp. [Code,] sections 9110-9690). The three types of nonprofit corporations differ from one another primarily in the purposes they may have, the way their assets may be distributed, and the extent to which they are subject to statutory or administrative regulation." (Advising Cal. Nonprofit Corporations (Cont.Ed.Bar 1984) section 1.9, p. 12.)
Public benefit corporations are those formed for public or charitable purposes. (Corp. Code, section 5130, subd. (a).) Corporations organized under the Nonprofit Religious Corporation Law are those whose purposes are primarily or exclusively religious. (Corp. Code, section 9130, subd. (b).)
Defendant was incorporated in 1987 as a California nonprofit public benefit corporation. As required by law, defendant's articles of incorporation state the corporation "is organized under the Nonprofit Public Benefit Corporation Law for public and charitable purposes." (See Corp. Code, section 5130, subd. (b).)
In construing the Act's exclusion of nonprofit religious corporations from the definition of "employer," " 'we begin with the fundamental rule that a court "should ascertain the intent of the Legislature so as to effectuate the purpose of the law." ' [Citations.] 'An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.' [Citations.] Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature. [Citations.] 'If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' [Citations.]" (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [170 Cal.Rptr. 817, 621 P.2d 856].)
The exclusion of section 12926, subdivision (d) (1) ("... a religious ... corporation not organized for private profit") is closely analogous to the language of Corporations Code section 9130, subdivision (b) ("... a religious corporation ... not organized for the private gain of any person .... [but] for religious purposes.") Defendant's corporate purposes are public and charitable (Corp. Code, section 5130, subd. (b)), not religious. Like any secular hospital, defendant's primary mission is to provide medical care and healing, not to propagate the faith. Nothing in section 12926, subdivision (d) (1), suggests its exemption is intended to apply to corporations other than nonprofit religious corporations whose corporate purposes are "primarily or exclusively ... religious ...." (Corp. Code, section 9130, subd. (b).)
Defendant maintains there is no sound reason to limit the religious exemption only to those nonprofit corporations organized under the Nonprofit Religious Corporation Law. In enacting the FEHA, the Legislature declared it "... 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 ...." (section 12920.) The Legislature has further declared the right to hold employment free of discrimination is a civil right. (section 12921; Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1213 [37 Cal.Rptr.2d 529].) [4] "Because the FEHA is remedial legislation, which declares '[t]he opportunity to seek, obtain and hold employment without discrimination' to be a civil right (section 12921), and expresses a legislative policy that it is necessary to protect and safeguard that right (section 12920), the court must construe the FEHA broadly, not ... restrictively." (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243 [5 Cal.Rptr.2d 782, 825 P.2d 767].)
In construing the Act's religious exemption, we consider the Legislature's express purpose of eliminating discrimination in the workplace against those in protected classifications and the related requirement that the Act be broadly construed to accomplish that purpose. [5] Exemptions from the Act therefore must be strictly construed: " 'Exceptions to the general rule of a statute are to be strictly construed. In interpreting exceptions to the general statute courts include only those circumstances which are within the words and reason of the exception.... One seeking to be excluded from the sweep of the general statute must establish that the exception applies.' " (Da Vinci Group v. San Francisco Residential Rent etc. Bd. (1992) 5 Cal.App.4th 24, 28 [6 Cal.Rptr.2d 461].)
Narrowly construed, the exemption in section 12926, subdivision (d) (1) applies to nonprofit religious corporations whose purposes are primarily or exclusively religious, i.e., those organized as religious corporations under the Nonprofit Religious Corporation Law.
Defendant argues the legislative history of the Act indicates the Legislature intended the religious exemption to apply to any religiously affiliated, nonprofit corporation. Defendant notes that prior to 1980, all California nonprofit corporations were incorporated under the General Nonprofit Corporation Law, which did not separately classify public benefit and religious corporations. (See former Corp. Code, section 9000 et seq., added by Stats. 1947, ch. 1038, section 9000, p. 2410.) When the FEHA exemption for nonprofit religious corporations was first enacted in 1959 as part of the Fair Employment Practice Act (see former Lab. Code, section 1413, added by Stats. 1959, ch. 121, section 1, p. 2000), the law did not recognize "religious corporations" as a discrete category of nonprofit corporation. Therefore, defendant argues, the FEHA nonprofit religious corporation exemption could not have been intended to be limited to those corporations specifically so organized.
Defendant's contention has a superficial appeal. On further examination, however, it fails. When the FEHA was enacted in 1959, its employer exemption applied not just to nonprofit religious corporations, but broadly to all nonprofit associations or corporations: " 'Employer' does not include a social club, fraternal, charitable, educational or religious association or corporation not organized for private profit." (Former Lab. Code, section 1413.) This exemption provision was amended in 1977 to delete all organizations except nonprofit religious associations or corporations. (Stats. 1977, ch. 1019, section 1, p. 3055.) The following year, the Legislature substantially revised the nonprofit corporations law. The Corporations Code, as reorganized by 1978 amendments (eff. Jan. 1, 1980 [see Stats. 1978, ch. 567, section 5, p. 1750]), divided nonprofit corporations into three separate types, including public benefit, whose purposes are public or charitable, and religious, whose purposes are primarily or exclusively religious.
Virtually contemporaneously the Legislature limited the scope of the employer exemption in the Act to nonprofit religious corporations or associations, and established discrete categories of nonprofit corporations, including a separate category for nonprofit religious corporations. These parallel statutory developments tend to support the conclusion that the religious exemption in the Act applies only to those religious corporations organized under the Nonprofit Religious Corporation Law.
The project to reorganize the General Nonprofit Corporation Law began in September 1976. (See 5 Assem. J. (1979-1980 Reg. Sess.) p. 9002.)
Labor Code sections 1101 and 1102 prohibit an employer from discriminating in respect to employment or opportunity for employment on the basis of sexual orientation (Lab. Code, section 1102.1, subd. (a); Gay Law Students Assn. v. Pacific Tel. and Tel. Co.(1979) 24 Cal.3d 458 [156 Cal.Rptr. 14, 595 P.2d 592]). Labor Code section 1102.1, enacted in 1992, defines "employer" for the purposes of Labor Code sections 1101 and 1102 and excludes from that definition a "religious association or corporation not organized for private profit, whether incorporated as a religious association or public benefit corporation." (Lab. Code, section 1102.1, subd. (b) (2).)
Defendant invokes the legislative history of Labor Code section 1102.1 to demonstrate a legislative intention to make that section's religious employer exemption coextensive with the religious employer exemption in section 12926, subdivision (d) (1). On that issue, the legislative history is inconclusive, but the language of the two statutes makes it quite clear that their reach is not coextensive. Labor Code section 1102.1 expressly excludes from the definition of employer religious nonprofit corporations and religious nonprofit public benefit corporations. Section 12926, subdivision (d) (1), excludes only the former. The language of the Labor Code section is broader than that of section 12926, subdivision (d) (1). [6] When a statute contains a particular provision, the omission of that provision from a similar statute on the same or a related subject is significant to show a different intention existed. (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 507 [247 Cal.Rptr. 362, 754 P.2d 708].) The difference in the two statutes supports plaintiff's contention that because defendant is not incorporated as a nonprofit religious corporation under the Nonprofit Religious Corporation Law, it is not exempt from the provisions of the Act.
In construing the meaning and purpose of a statute, the courts accord substantial deference to administrative interpretations of the statute. (See Page v. Superior Court, supra, 31 Cal.App.4th at p. 1214 ["[W]e 'give great weight to [the Fair Employment and Housing Commission's] interpretation of its own regulations and the statutes under which it operates ....' "].) The Fair Employment and Housing Commission has ruled the religious employer exemption in section 12926, subdivision (d) (1) applies only to those corporations organized under the Nonprofit Religious Corporation Law: "The requirements and laws governing the religious non-profit corporation are distinctly different from those governing the other non-profit corporations. It is reasonable, therefore, that the Legislature might choose to exempt only religious non-profit corporations from the purview of the Act. Religious non-profit corporations have always been accorded separate treatment under California's non-profit laws because of their unique protected status under the First Amendment to the United States Constitution. Even prior to the reorganization of the state's non-profit law in 1978, California courts were careful to respect the special status afforded religious non-profit corporations. [Citation.] The separate treatment of religious non-profit corporations, then, as the only exempt employers under the Act, continues a long and historical record of legislative deference to such activities." (Department of Fair Employment v. Bohemian Club (1981) No. 81-19, FEHC Precedential Decs. 1980-1981, CEB 27, p. 14, italics added.)
As a nonprofit public benefit corporation, defendant is not included in the exemption in section 12926, subdivision (d) (1), for nonprofit religious corporations. Accordingly, defendant is a covered employer under the Act and subject to its proscriptions against discrimination.
The judgment is reversed and the matter remanded to the trial court with directions to vacate its order granting defendant's motion for summary judgment and to deny said motion. Plaintiff shall recover costs on appeal.
Davis, J., and Nicholson, J., concurred.