Club v. Fair Employment & Housing Commission

The petition did not name the Department and its director as real parties in interest; they, however, opposed the petition and filed their own petition in intervention to set aside the Commission’s ruling purporting to deny classwide backpay. While the Commission agreed that the backpay ruling should be set aside, the trial court, in granting the Club’s petition, denied the petition in intervention as moot.

On December 1 and 3, a hearing was held, after which the trial court issued a tentative ruling granting the Club’s petition. In the aftermath of attendant publicity, the Commission learned for the first time that the trial judge had participated in the Club’s activities, and the Commission’s request that he disqualify himself was denied.

The Club’s petition was granted. The trial court held that: (1) Title VII preempts the FEHA; and (2) even if the FEHA is not preempted, male gender is a bona fide occupational qualification. The court did not merely order the Commission to set aside its decision, but also dismissed the underlying accusation against the Club. While the Club was awarded costs, its cost bill was subsequently denied insofar as it claimed attorney’s fees.

Both the Commission and the Department appealed.^[1] The Club also appealed from the order denying it attorney’s fees.

A review of the pertinent factual context reveals the following. The Bohemian Club is a distinguished private nonprofit association whose membership is limited to men professing devotion to the arts. It has a long and honorable history since its inception more than a century ago and it occupied an important place in the history of literature in early-day San Francisco. Its approximately 2,000 members are chosen by a highly selective process. Potential members are interviewed extensively and must be devoted to the arts, or willing to participate in artistic activities.

The Club’s activities take place at two different locations: the City Club in San Francisco and the Grove, a 2,500-acre camping area near Monte Rio, California. Members attend concerts, theatrical and musical productions, oratorical presentations, lakeside talks and other functions.

The Club permanently employs 90 men in managerial, clerical, craft, food preparation and service, cleaning and personal service positions at its

When Government Code section 12926, subdivision (c) was originally enacted, the term employer did not “include a social club, fraternal, charitable, educational or religious association or corporation not organized for private profit.” (Lab. Code, § 1413, subd. (d).) Under the amended version, however, the Legislature deleted social clubs, as well as fraternal, charitable, and educational organizations from the statutory exemption. “Where the amendment of a statute consists of the deletion of an express provision, the presumption is that a substantial change in the law was intended.” (Subsequent Injuries Fund v. Industrial Acc. Com. (1963) 59 Cal.2d 842 , 844 [ 31 Cal.Rptr. 477 , 382 P.2d 597 ] citing Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227 , 231 [ 273 P.2d 5 ]; see also Longshore v. County of Ventura (1979) 25 Cal.3d 14 , 26 [ 157 Cal.Rptr. 706 , 598 P.2d 866 ]; Ladd v. Board of Trustees (1972) 23 Cal.App.3d 984 , 990 [ 100 Cal.Rptr. 571 ].)

By specifically deleting “social clubs” from the statutory exemption, it appears that the Legislature no longer wished to afford such entities an exemption from the nondiscrimination policies of the FEHA. Moreover, the deletion of charitable organizations, which are by nature nonprofit, clearly indicates that the term religious was intended to modify both “association” and “corporation not organized for private profit.” Had the Legislature simply intended, as respondent suggests, to exempt all nonprofit corporations, it seems unlikely that it would have deleted charitable organizations from the exemption provision. In any event, we conclude that the adjective “religious” must be read as modifying both “association” and “corporation not organized for private profit.” And, upon this reading of the statute, we conclude that only religious associations or nonprofit corporations are exempt from the antidiscrimination provisions of FEHA, and that appellants do not fall within this exempt category.^[2]

For reasons we will discuss at length later in this opinion, we find in the present record that such associational or privacy interests of members as are implicated do not rise to the level of fundamental vested interests for which an independent judicial evaluation and judgment are traditionally required. We conclude, on the contrary, that the conventional substantial evidence test was the proper standard for the trial court’s review of the administrative record.^[3] -^[4]

Among the Club’s principal substantive contentions is that the forced hiring of women violates members’ constitutional right of association; therefore, it is argued the FEHA’s inclusion of private clubs in its antidiscrimination provisions is unconstitutional. In so arguing, the Club relies on the following language from Gilmore v. City of Montgomery (1974) 417 U.S. 556 [ 41 L.Ed.2d 304 , 94 S.Ct. 2416 ]: ‘“The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. . . . Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires.’” (Id., at p. 575 [41 L.Ed.2d at p. 320]; quoting Moose Lodge No. 107 v. Irvis (1972) 407 U.S. 163 , 179-180 [ 32 L.Ed.2d 627 , 641, 92 S.Ct. 1965 ] (dis. opn. of Douglas, J.) The Club also directs us to the following language of our Supreme Court: “[prejudice and bigotry in any form are regrettable . . . [although] it is the constitutional right of every person to close his home or club to any person ...” (Bell v. Maryland, supra, 378 U.S. 226 , 313 [ 12 L.Ed.2d 822 , 848] (conc. opn. of Goldberg, J.).)

Quite apart from the fact that Gilmore and related cases—unlike the case at bench—involve the relationship of member to member and not member

Because the Jaycees did not have selective membership standards, the only criteria being age and sex, the court found that no “intimate” associational rights would be infringed by the inclusion of women as full voting members. (Id., at p. 621 [82 L.Ed.2d at p. 473].) The Roberts court also rejected the Jaycees’ claim that their right of “expressive” association would be violated by the inclusion of women. While recognizing that the Jaycees dominant purpose had been to further the social and political views of young men, the court refused to entertain what it termed “stereotypical” assumptions that the presence of women members would thwart or stultify these “expressive” activities necessary to implementing that purpose. (Roberts v. United States Jaycees, supra, 468 U.S. atp. 628 [82 L.Ed.2d at p. 479].)

It bears repetition that we are of course confronted here with the impact of women employees upon the Club, and nothing in the discussion which now follows bears upon the wholly separate issue of women as members. And, in assessing this impact, our first inquiry is whether hiring females would unduly interfere with the Club’s “intimate” associational rights under Roberts.^[5] Also, in determining the intimacy of a relationship, and

As we have said, the Club’s membership consists of approximately 2,000 men whose common purpose is to enjoy the arts in an atmosphere of male camaraderie. But while the Club’s membership policy is extremely selective, and the consequent relationship among members is undoubtedly “intimate” in associational terms, the same cannot be said for the associational rights of members vis á vis employees. As the Club’s manager testified, little is known concerning employees at hiring. Such testimony was corroborated by a member of the local food servers union who declared that, to his knowledge, the Club had never refused anybody referred by the union. In short, the record amply demonstrates that the Club’s hiring procedure is not selective.

We are obliged to carefully consider as well whether the Club’s purposes of promoting male fellowship and appreciation of the arts would be undermined by hiring female employees in selective capacities. In this respect, it seems highly relevant that, according to the Club’s manager, employees are prohibited from fraternizing with the members. It is difficult to understand how, for example, the presence of women cooks or food servers would inhibit realization of the Club’s purposes in view of this nonfraternization rule. Indeed, the existence of that rule renders implausible any assertion that the Club’s “intimate” associational rights would be infringed by hiring female employees. Nothing in the present record demonstrates that the members have so “highly personal a relationship” with employees as to warrant protection from state intrusion.

The Club nevertheless contends that the mere presence of women on a regular basis “would change the spirit of the organization” and would “destroy the Bohemian feeling.” The eminent author and editor, William F. Buckley, Jr.—himself a Bohemian—testified that the presence of women employees at the Grove “would make so critical a difference as far as I can see that I would certainly forfeit my sense of allegiance to it.”^[6] Such feelings—however sensitive and genuine—are not afforded constitutional protection, however, for—we repeat—the right to freedom of association only protects “highly personal” relationships (Roberts v. United States Jaycees,

The Club makes a corollary contention that hiring women employees would violate its privacy rights, citing White v. Davis (1975) 13 Cal.3d 757 [ 120 Cal.Rptr. 94 , 533 P.2d 222 ], for the proposition that “ ‘[t]he right of privacy . . . [encompasses the] freedom to associate with the people we choose.’” (Id., at p. 774); as we have already said, however, Roberts v. United States Jaycees, supra, 468 U.S. 609 , establishes the rule that the constitutional right of association protects only “intimate” relationships, while here members’ relationships with employees are neither “highly personal” nor “intimate.”

Even were we to assume arguendo that the members’ associational rights would somehow be constricted by the Club’s forced hiring of women, we think such infringement would be justified by the state’s compelling interest in eradicating employment discrimination. Again we are guided by high authority. In Hishon v. King & Spalding (1984) 467 U.S. 69 [ 81 L.Ed.2d 59 , 104 S.Ct. 2229 ], plaintiff asserted that she had been unlawfully denied partnership status in a law firm on the basis of sex. The Supreme Court found that plaintiff had stated a cognizable claim under Title VII and rejected the law firm’s claim of infringement of its associational rights, stating: “ ‘[Ijnvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.’ ” (Id., at p. 78 [81 L.Ed.2d at pp. 68-69].) In a concurring opinion, Justice Powell noted that laws barring discrimination may well infringe first amendment rights: “The court’s opinion properly reminds us that ‘invidious private discrimination . . . has never been accorded affirmative constitutional protections.’ . . . This is not to say, however, that enforcement of laws that ban discrimination will always be without cost to other values, including constitutional rights. Such laws may impede the exercise of personal judgment in choosing one’s associates or colleagues.” (Id., at p. 80, fn. 4 [81 L.Ed.2d at p. 70].) We read Hishon as authority for the proposition that the impact, if any, of forced hiring of female employees on Club members’ associational rights could be justified by the state’s compelling interest in eliminating employment discrimination.

The Club also asserts that the Fair Employment and Housing Act’s inclusion of private clubs within its antidiscrimination provisions is incon

In deciding whether a federal law preempts a state statute, “[o]ur task is ‘to determine whether, under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” (Jones v. Rath Packing Co. (1977) 430 U.S. 519 , 526 [ 51 L.Ed.2d 604 , 614, 97 S.Ct. 1305 ].) The United States Supreme Court has repeatedly stated that “ [cjongress enacted Title VII to assure equality of employment opportunities without distinction with respect to race, color, religion, sex, or national origin.” (Kremer v. Chemical Construction Corp. (1982) 456 U.S. 461 , 468 [ 72 L.Ed.2d 262 , 272, 102 S.Ct. 1883 ], citing Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36 , 44 [ 39 L.Ed.2d 147 , 155, 94 S.Ct. 1011 ] and McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 , 800 [ 36 L.Ed.2d 668 , 676-677, 93 S.Ct. 1817 ].) With these principles in mind, we examine the question of whether the FEHA is preempted by Title VII.

As the Club observes, the private club exemption in Title VII was, in the words of Senator Humphrey, designed to protect “the genuine privacy of private clubs or other establishments whose membership is genuinely selective on some reasonable basis.” (llOCong.Rec. (June 13,1964) 13697.)^[9] Accordingly, the Club argues, under section 1104 of Title XI, a preemption provision of the Civil Rights Act, the FEHA’s inclusion of private clubs is fatally inconsistent with Title VII and cannot stand. Section 1104 provides: “[N]othing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.” (42 U.S.C. § 2000h-4.) (Italics added.)

The Club also cites Kemerer v. Davis (E.D. Mich. 1981) 520 F.Supp. 256 , for the proposition that application of antidiscrimination legislation to

Kemerer involved two federal statutes, however. In Kremer v. Chemical Construction Corp. (1981) 456 U.S. 461 [ 72 L.Ed.2d 262 , 102 S.Ct. 1883 ], the court discussed the relationship between two federal statutes and observed that “whenever possible, statutes should be read consistently.” (Id., at p. 468 [72 L.Ed.2d at p. 271].) This was accomplished in Kemerer by finding the earlier federal statute preempted by the later, thereby effectively incorporating a subsequently enacted exemption into the 1866 Civil Rights Act. (See also Hunter v. Erickson (1969) 393 U.S. 385 , 388 [ 21 L.Ed.2d 616 , 620, 89 S.Ct. 557 ].) The question presented here, however, is whether states have the power to enact broader antidiscrimination legislation than that provided by Title VII.

In arguing that the states retain such power, appellants rely on section 708, the “savings” clause of Title VII, which provides as follows: “[n]othing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State of political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.”

In Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85 [ 77 L.Ed.2d 490 , 103 S.Ct. 2890 ], our nation’s high court said of section 708: “. . . Title VII does not itself prevent States from extending their nondiscrimination laws to areas not covered by Title VII, see § 708, 78 Stat. 262 , 42 USC § 2000e-7 .... Quite simply, Title VII is neutral on the subject of all employment practices it does not prohibit.” (Id., at p. 103 [72 L.Ed.2d at p. 505].) Thus, states may extend “their nondiscrimination laws to areas not covered by Title VII. . . .” (Ibid.) In Government Code section 12926, subdivision (c), California’s Act extends its nondiscrimination policies to

Appellants contend, and we agree, that limited federal regulation of discrimination does not necessarily indicate a congressional intent to preempt state laws with broader antidiscrimination provisions. We subscribe to the view that congressional reluctance to extend coverage of this antidiscrimination law to private clubs acting as employers is not a purpose of the statute. And as one commentator in the field has succinctly said, “. . . congressional concern . . . [over] congressional refusal to extend a federal statute to include particular entities is hardly a prohibition of the states doing so.” (Garcia, Title Vll Does Not Preempt State Regulation of Private Club Employment Practices (1983) 34 Hastings L.J. 1107 , 1130.)

We follow the authority of the United States Supreme Court: “Quite simply, Title VII is neutral on the subject of all employment practices it does not prohibit.” Shaw v. Delta Airlines, supra, 463 U.S. at p. 103 [77 L.Ed.2d at p. 505]. Because states can extend antidiscrimination laws to areas not covered by Title VII, we conclude that the FEHA is not preempted by Title VII.^[11] (Ibid.)

Another of the Club’s key contentions is that male gender is a bona fide occupational qualification for Club employees which justifies its exclusion of female employees.

In Diaz, an employer attempted to justify its exclusion of male flight attendants by claiming that female flight attendants provided a more pleasant environment. Despite evidence produced by the airlines that passengers overwhelmingly preferred female flight attendants, the court rejected the BFOQ defense, explaining: “We do not feel this alone justifies discriminating against all males. . . . Before sex discrimination can be practiced, it must not only be shown that it is impracticable to find the men that possess the abilities that most women possess, but that the abilities are necessary to the business, not merely tangential.” ( 442 F.2d 385 , 388-389.) Thus, because the essence of the airline’s business was the safe transport of passengers, and the pleasant atmosphere created by female flight attendants was merely tangential thereto, the court concluded that female gender was not a BFOQ (Id., at p. 389.)

In Fernandez, the court again rejected a BFOQ defense, in the face of evidence which showed that South American customers might refuse to deal with women. The court found “no factual basis for linking sex with job performance.” ( 653 F.2d 1273 , 1276; italics added.) Customer preference was considered irrelevant because a woman could perform the job as readily as a man. Both Fernandez and Diaz stand for the proposition that BFOQ defenses cannot be established on the basis of stereotypical gender-based assumptions.

In the case at bench, the evidence overwhelmingly establishes that club members prefer male employees. The preference is presumably based upon assumptions concerning the inhibiting effect women employees might have upon men. These are, however, mere stereotypical assumptions, lacking in any factual basis. Moreover, because of the nonfraternization policy and lack of selectivity in hiring employees, such male fellowship as might exist between club members and employees is clearly in a legal sense tangential. (Diaz v. Pan Am. World Airways, Inc., supra, 442 F.2d at pp. 388-389.)

That part of the judgment denying the Club attorney’s fees is affirmed. In all other respects the judgment is reversed with directions to the trial court to reinstate the Commission’s findings. The parties shall bear their own costs.^[13]

Racanelli, P. J., and Holmdahl, J., concurred.

The petition of plaintiff and appellant for review by the Supreme Court was denied February 26, 1987.