Stamps v. Superior Court

Opinion

INTRODUCTION

The issue presented in this petition for writ of mandate is whether a violation of statutory protections against discriminatory violence and intimidation and against denial of civil rights by means of threats and intimidation (Civ. Code, §§ 51.7, 52.1) may be asserted as a separate cause of action in an action alleging wrongful termination and employment discrimination.^[1] The trial court ruled these sections were part of the Unruh Civil Rights Act (the Act) and, thus, were inapplicable in the employment context. We conclude there is no bar to asserting violations of sections 51.7 and 52.1 in employment cases. Accordingly, we reverse the trial court’s order sustaining real parties in interest’s demurrer and granting their motion to strike.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Kenny-Shea-Traylor-Frontier-Kemper, JV, and Traylor Bros., Inc. (collectively Traylor), is a mining company that employed petitioner Robert Stamps as a tunnel miner. Stamps sued Traylor and his supervisor, Travis Thompson, alleging he was subjected to retaliation, violence, and intimidation by threat of violence. Stamps, an. African-American, further alleged Thompson verbally harassed him with racist remarks, yelled at him in an intimidating manner, threatened him with physical violence for not completing work assignments, and generally placed him in unsafe work situations without proper equipment and training, all on account of his race. Thompson’s alleged lack of concern for Stamps’s safety resulted in an injury that caused several of Stamps’s toes to be amputated. Stamps was terminated as a result of his injury.

The operative pleading was the first amended complaint, which alleged three causes of action: (1) wrongful termination in violation of public policy, (2) retaliation in violation of public policy, and (3) violation of sections 51.7 and 52.1. Traylor and Thompson (collectively real parties) demurred and filed a motion to strike. Among their contentions, real parties argued the third cause of action failed because sections 51.7 and 52.1 are part of the Act and the Supreme Court held in Rojo v. Kliger (1990) 52 Cal.3d 65 [ 276 Cal.Rptr. 130 , 801 P.2d 373 ] (Rojo), that the Act does not apply to employment cases.

The trial court agreed with real parties and sustained the demurrer to the third cause of action without leave to amend. The court also struck Stamps’s

request for attorney fees and penalties under sections 51.7 and 52.1. On Stamps’s petition, we issued an alternative writ of mandate and heard oral argument. As we will discuss, we hold Stamps properly stated a cause of action; the trial court, therefore, erred in its rulings.^[3]

We organize our opinion by first providing an overview of the applicable legislation and its history. We then conclude that sections 51.7 and 52.1 are not part of the Act, the Supreme Court in Rojo did not adopt a rule barring employment cases from being founded on the two statutes, and there is no other reason to preclude such statutory claims in employment cases.

DISCUSSION

1. Standard of Review

“As the issues presented are all entirely legal in nature, we employ our independent judgment. [Citations.]” (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744 , 753 [ 120 Cal.Rptr.2d 550 ] (Gatto).)

2. The Legislative Framework of Relevant Civil Code Sections

A. Sections 51.7 and 52.1: Overview. Section 51.7 broadly provides that all persons have the right to be free from violence and intimidation by threat of violence based on, among other things, race, religion, ancestry, national origin, political aflSliation, sex, or position in a labor dispute.^[4] The rights protected by section 51.7 may be enforced by a private action for damages. (See §52, subd. (b).)^[5] Section 52.1 allows a civil action for damages

and equitable relief for interference, by threats, intimidation or coercion, with the exercise of constitutional or other rights provided by law. The section also provides criminal sanctions for violations.^[6] Attorney fees may be awarded under both statutes. (§§ 52, subd. (b)(3), 52.1, subd. (h).)

B. Sections 51.7 and 52.1: Legislative History. The history of section 51.7 indicates the legislation was referred to as the Ralph Civil Rights Act and enacted in 1976 as part of Assembly Bill No. 2986 (1975-1976 Reg. Sess.) (Assembly Bill No. 2986). An Assembly Committee report stated that while there were “numerous state and federal laws providing for full and equal civil rights protections in employment, housing, and access to public accommodations and facilities,” there was no specific prohibition protecting individuals from “violence because of their race, religion, color, ancestry, or national origin.” (Assem. Com. on Labor Relations, Analysis of Assem. Bill No. 2986, supra, Apr. 20, 1976, p. 1.) The report continues, “Although it is impossible to estimate the instances of violence against persons in California because of race, color, religion or other factors, there have been enough occurrences such as the one in Taft, California last year where Black college students were threatened with violence and chased out of town to signify a possible need for greater protection of this fundamental right. . . . This measure declares that all persons have a right to be free from violence or threat of violence committed against their persons or property because of race, color, religion, ancestry, national origin, political affiliation, or position in a labor dispute.” (Ibid.; see also Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 , 845-848 [ 11 Cal.Rptr.3d 692 , 87 P.3d 1 ] (Venegas) (conc. opn. of Baxter, 1), [describing the historical background of the “Ralph Civil Rights Act”]; In re Joshua H. (1993) 13 Cal.App.4th 1734 , 1748, fn. 9 [ 17 Cal.Rptr.2d 291 ] [referring to section 51.7 as the “Ralph Civil Rights Act”].)

Penal Code section 422.7 as the “Tom Bane Civil Rights Act,” and stating that, along with the Ralph Civil Rights Act and related statutes, it is California’s response to the increase in hate crimes]; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101 , 110 [ 80 Cal.Rptr.2d 60 ] [section 52.1 part of Tom Bane Civil Rights Act].)

The legislative history reveals that the broad and plain language of sections 51.7 and 52.1 was chosen to provide protection from discriminatory violence and intimidation, and from threats, intimidation and coercion that denied the civil rights of others. The creation of civil causes of action by victims of such conduct was at the heart of the legislation. Neither the words of the statutes nor their lineage reflects an explicit intent by the Legislature either to include or exclude sections 51.7 and 52.1 from the realm of the Act.

C. The Act. Section 51 provides in relevant part, “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, [or] medical condition . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§ 51, subd. (b).) The statute’s prefatory clause states “This section shall be known, and may be cited, as the Unruh Civil Rights Act.” (§51, subd. (a), italics added.) The act traces its origins to similar legislation enacted in 1901 and again in 1905. (See Historical Note, 6 West’s Annot. Civ. Code (1982 ed.) foil. § 51, p. 312.) Its purpose is “to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act.” (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712 , 733 [ 195 Cal.Rptr. 325 ]; see also Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 , 738 [ 180 Cal.Rptr. 496 , 640 P.2d 115 ].) As part of the 1959 amendments, it was named after California’s former Speaker of the House, Jesse Unruh.^[7]

Although the breadth of the Act is wide, its mission explicit, and is to be liberally construed (Koire v. Metro Car Wash (1985) 40 Cal.3d 24 , 28 [ 219 Cal.Rptr. 133 , 707 P.2d 195 ]), our Supreme Court has stated that the Act “has no application to employment discrimination.” (Rojo, supra, 52 Cal.3d at

p. 77; see also Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 , 500 [ 86 Cal.Rptr. 88 , 468 P.2d 216 ] (Alcorn).) In Alcorn, an employment discrimination case, the Supreme Court concluded that, notwithstanding the statute’s extensive reach, “there is no indication that the Legislature intended to broaden the scope of section 51 to include discriminations other than those made by a ‘business establishment’ in the course of furnishing goods, services or facilities to its clients, patrons or customers.” (Alcorn, at p. 500; see also Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72 , 83, fn. 12 [ 219 Cal.Rptr. 150 , 707 P.2d 212 ] [“employer-employee relationship” is not covered by the Act].)

3. Interplay Among the Act and the Ralph and Tom Bane Civil Rights Acts

In their opposition to the petition for extraordinary writ, real parties state their principal argument in words that could not be clearer: “Civil Code sections 51.7 and 52.1 are part of the Unruh Civil Rights Act, Civil Code sections 51 et seq.” From this proposition, real parties argue that since the two statutes in question are part of the Act and since Rojo holds the Act does not apply to employment cases, it flows that Stamps cannot base his third cause of action on sections 51.7 and 52.1.

We find two flaws in this argument. First, neither legislative history nor case law supports the conclusion that sections 51.7 and 52.1 are included in what is known as the Act. Second, even if the Act’s reach did extend to these two statutes, there is nothing in Rojo that suggests the Supreme Court intended to preclude employment cases from being founded on sections 51.7 and 52.1 even if they may not be predicated on section 51.

A. The Act does not include the Ralph or Tom Bane Civil Rights Acts. The parties vigorously debate whether the sections under consideration are or are not part of the Act. Before we reach our destination, we gently observe a point that is beyond controversy: The courts generally have done a poor job of describing the various components of the Act. Not until 2002 did an appellate court tackle the issue head on. In Gatto, supra, 98 Cal.App.4th 744 , the court was confronted with determining the statute of limitations for actions under sections 51 and 51.7. The case had nothing to do with employment discrimination; rather, a Hell’s Angel was ejected from a county fair for not removing his motorcycle club vest. The court refused to assume that the statutes of limitations for the two sections were necessarily the same.^[8] Instead, it initially reflected on the lack of precision in describing the components of the Act.

“By its own terms, the Unruh Civil Rights Act comprises only section 51. Subdivision (a) of section 51 states: ‘This section shall be known, and may be cited, as the Unruh Civil Rights Act.’ (Italics added.) The courts, however, have consistently described as Unruh Civil Rights Act claims causes of action based under seemingly related provisions set forth in sections of the Civil Code that follow section 51. West Shield is a good example. That case presented no claim of denial of full and equal accommodations in violation of section 51; however, the court treated causes of action alleging interference with the exercise of constitutional rights under section 52.1, and sexual harassment under section 51.9 as Unruh Civil Rights Act claims. Similarly, section 51.9 was treated as an ‘Unruh Civil Rights Act claim’ in Brown v. Smith (1997) 55 Cal.App.4th 767 , 774-775 [ 64 Cal.Rptr.2d 301 ], as was section 54.1 in Independent Housing Services [(1993)] 840 F.Supp. 1328 . Citing several state and federal opinions, the court in Doe v. Petaluma City School Dist. (N.D.Cal. 1993) 830 F.Supp. 1560 stated that ‘[i]t appears that section 52.1 is at least a “component” of the Unruh Civil Rights Act.’ (Id. at p. 1581.) It is noteworthy, however, that in construing section 52.1, our Supreme Court explained that it was enacted by the Legislature ‘to stem a tide of hate crimes’ (Jones v. Kmart Corp. (1998) 17 Cal.4th 329 , 338 [ 70 Cal.Rptr.2d 844 , 949 P.2d 941 ]) and never referred to it as part of the Unruh Civil Rights Act which, at least originally, dealt only with the issue of equal accommodations. Other courts have referred to section 52.1 and related statutes, including section 51.7, as part of the Bane Act. (See, e.g., Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141 , 144 [ 44 Cal.Rptr.2d 887 ]; Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797 , 1809 [ 35 Cal.Rptr.2d 282 ].) In re Joshua H. (1993) 13 Cal.App.4th 1734 [ 17 Cal.Rptr.2d 291 ] also refers to section 52.1 as part of the Bane Act but refers to section 51.7 as the ‘Ralph Civil Rights Act.’ (Boccato, at p. 1748, fn. 9.) HO Reference to a statute or statutory scheme by the name of its author does not influence the meaning and effect of the enactment, but an erroneous denotation that includes one measure as part of another may obscure differences that are legally very significant. This is what appears to have happened to the Unruh Civil Rights Act, which is increasingly treated as an omnibus antidiscrimination statute no longer limited to merely ensuring equal access to accommodations. For purposes of determining the applicable statute of limitations, this creates a problem, for the provisions now seen as parts of the Unruh Civil Rights Act do not all share the same common law provenance.” (Gatto, supra, 98 Cal.App.4th 744 , 757-758.)^[9]

Although the Gatto court does not unequivocally hold that sections 51.7 and 52.1 are not part of the Act, we are not so reserved: We conclude neither section is part of a properly denominated Act.^[10] This conclusion is based largely on the legislative history that we have described ante and is consistent with that reached by two commentators in the civil rights litigation field. Their treatise devotes entire sections to two subjects: “Ralph Act is not part of the Unruh Act or FEHA,” and “Bane Act is not part of the Unruh Act, the Ralph Act or another statute.” (Kahn & Links, Cal. Civil Practice: Civil Rights Litigation (2005) § 314, p. 27, § 327, p. 50.)^[11]

The authors observe that several cases “have erroneously referred to the Ralph Act as the Unruh Act. [Citations.] . . . Although the Ralph Act and the Unruh Act are codified near each other in the Civ. Code, and both share the same remedy statute, Civ. Code, § 52, there are significant differences between them. The Ralph Act focuses on violence or intimidation by threat of violence, while those concepts are absent in the Unruh Act. The Unruh Act, Civ. Code, § 51, is a public accommodations statue that focuses on discriminatory behavior by business establishments, while the Ralph Act has nothing to do with public accommodations or business establishments.” (Kahn & Links, Cal. Civil Practice: Civil Rights Litigation, supra, § 314, p. 28.) Similarly, many “cases have referred to a Bane Act claim as an Unruh Act claim and/or stated that the Bane Act is a component of the Unruh Act.” (Id., § 327, at p. 51.) This, the authors assert, is “erroneous.” (Ibid.) We agree.^[12]

B. Real parties’ authorities are not persuasive. The cases on which real parties rely to support their argument that section 51.7 and 52.1 are part of the Act do not so hold. As Gatto observes, those cases generally reflect a “lack of clarity as to which provisions of [the Civil Code] actually comprise the Unruh Civil Rights Act . . . .” (Gatto, supra, 98 Cal.App.4th at p. 759.) For the most part, these authorities do not even discuss sections 51.7 or 52.1 and had no cause to decide what provisions actually comprise the Act.

For example, in Los Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261 [ 20 Cal.Rptr.3d 92 ], the court was confronted with whether Government Code section 818 prohibiting punitive damages against public entities applied to section 52, subdivision (b)(2) which allows for a $25,000 civil penalty.^[13] The Court of Appeal framed the case thusly: “In this writ proceeding, we are asked to address the novel question of whether section 818 precludes the award of the civil penalty specified in the Unruh Civil Rights Act (Civ. Code, § 51 et seq. [Unruh Act]) for the violation of certain of its provisions.” (Los Angeles County Metropolitan Transportation Authority v. Superior Court, supra, at p. 264.) Neither in its prefatory statement nor in connection with the several other occasions where it used the term “Unruh Act” did the court have occasion to consider whether sections 51.7 or 52.1 were part of the Act. That determination was not germane to the issue of whether the California Tort Claims Act forbade the civil penalty from being imposed against the municipal defendant. If the court had eliminated all references to “the Unruh Act” and

instead had identified the statutes only by their code section, its analysis would have been intact. (See also Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 , 1089 [ 6 Cal.Rptr.3d 457 , 79 P.3d 569 ] (Schifando) [referring to the Act as “Civ. Code, § 51.7 et seq.”]; Major v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618 , 622 [ 9 Cal.Rptr.2d 237 ] [“Unruh Civil Rights Act. (Civ. Code, section 51 et seq.)”]; Schmidt v. Superior Court (1989) 48 Cal.3d 370 , 374, 383-387 [ 256 Cal.Rptr. 750 , 769 P.2d 932 ] [the Act as “section 51 et seq.,” but only addressing section 51.2 and section 51.3 dealing with age discrimination in housing].)

In Gates v. Superior Court (1995) 32 Cal.App.4th 481 , 512-513 [ 38 Cal.Rptr.2d 489 ], the appellate court was also presented with the relationship between the Civil Code and the Tort Claims Act. There the precise issue was whether the Government Code section that precluded civil lawsuits for failure to provide police protection applied to claims under sections 51.7 and 52. The court answered the question affirmatively. (Gates, supra, at pp. 512-513.) As was the case in Los Angeles County Metropolitan Transportation Authority v. Superior Court, the court of appeal made repeated references to “the Unruh Act.” But again, whether or not individual code sections were or were not part of the Act had no bearing on its analysis.

Finally, references to the “Unruh Act” are found in West Shield, supra, 82 Cal.App.4th at pages 951-954, in the same context as the other appellate decisions cited ante. The issue there was whether a one-year (personal injuries) or three-year (liability founded on a statute) statute of limitations applied to claims under sections 51.9 and 52.1.^[14] In concluding that the one-year statute applied, the Court of Appeal noted that what it called the various Unruh Act statutes were all rooted in the common law and hence did not qualify for the longer limitations period. Again, the analysis did not turn on whether a particular statute was or was not properly included in the legislative short title.^[15]

Real parties also rely on several federal cases that discuss the relationship of the various statutes starting with section 51. McCalden v. California Library Ass’n (9th Cir. 1990) 955 F.2d 1214 , 1220-1221, is arguably the most helpful to their position. There, a “Holocaust revisionist” brought suit in federal court. He included a claim under section 51.7, in which he claimed intimidation because of his political beliefs. The

Ninth Circuit assumed that section 51.7 was part of the Act, stating: “The California courts, however, have considered § 51.7 to be a ‘component’ of the earlier-enacted Unruh Civil Rights Act, Cal. Civ. Code § 51 . See Long v. Valentino, 216 Cal.App.3d 1287 , 1293 [ 265 Cal.Rptr. 96 ] (1989).” CMcCalden, at pp. 1220-1221.)^[16] McCalden does use section 51 authority to support its conclusion that the various categories enumerated in section 51.7 (e.g., race, national origin) are not exclusive and the protected classes include membership in political groups. (McCalden, at p. 1222.) Again, however, there is no effort to analyze how section 51.7 is or is not part of the Act. The fact that closely related statutes may be used to assist in statutory interpretation does not mean that one is included in the other. Rather, McCalden s approach was an application of a venerable method of statutory construction. (See Hicks v. E.T. Legg Associates (2001) 89 Cal.App.4th 496 , 505 [ 108 Cal.Rptr.2d 10 ] [“ ‘a statute is not to be read in isolation; it must be construed with related statutes and considered in the context of the statutory framework as a whole’ ”].) Unquestionably, sections 51.7 and 52.1 are related to the Act.

Waters v. U.S. (N.D.Cal. 1993) 812 F.Supp. 166 , 169, also cited by real parties, involved a section 51.7 action in the employment context, the setting present here. However, the court dismissed the case without a discussion of the merits of the controversy, as the plaintiff had failed to exhaust her administrative remedies.

Remarkably, real parties also direct our attention to Taormina v. California Dept. of Corrections (S.D.Cal. 1996) 946 F.Supp. 829 , 833-834 (Taormina). Taormina involves a federal civil rights action against a state correctional facility over an injury to an inmate. The opinion addresses pendent state claims which appear to be based primarily on sections 51, 51.5 (arbitrary discrimination in business establishments), and 51.7. (946 F.Supp. at p. 833.) The court described the plaintiff’s complaint as follows: “Plaintiff’s fifth cause of action (interference with statutory and constitutional rights) is premised on the Banes [ízc] Act, Cal.Civ.Code section 51 et seq. . . .” (Ibid.) In omitting reference to the “Unruh Act,” the opinion not only misidentifies section 51, it does so by misspelling the name of the author of section 52.1.^[17]

C. Rojo does not address whether employment discrimination cases may be based on sections 51.7 or 52.1. Real parties’ central assertion is that the Supreme Court case of Rojo, supra, 52 Cal.3d 65 , compels the ruling of the trial court. Their argument is founded on (1) the assumption that sections 51.7 and 52.1 are part of the Act, and (2) Rojo’s statement that “the Unruh Civil Rights Act has no application to employment discrimination.” (52 Cal.3d at p. 77; see also id. at p. 74.) As we have already discussed, sections 51.7 and 52.1 are not part of the Act, thus kicking out the underpinnings of real parties’ contention. More fundamentally, Rojo has nothing to do with the statutes involved in this case.

The issues articulated by the Supreme Court in Rojo were whether the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) “provides the exclusive remedy for injuries relating to sex discrimination in employment; whether an employee must exhaust the administrative remedies under the FEHA as a prerequisite to pursuing a civil action; and whether sex discrimination in employment may give rise to a claim of wrongful discharge in contravention of public policy.” (Rojo, supra, 52 Cal.3d at p. 70.) These subjects are not present here.

As to the code sections that comprise the Act, the Supreme Court mentioned the statute by name five times. Twice, it was with specific reference to section 51 (Rojo, supra, 52 Cal.3d at pp. 76, fn. 5, 77); twice to both sections 51 and 52 (52 Cal.3d at p. 78); and once without reference to any code section at all (id. at p. 79). Concerning the language seized upon by real parties in support of their position here, the Supreme Court expressly referred to section 51: “No specific mention was made of Civil Code section 51, because none was needed: the Unruh Civil Rights Act has no application to employment discrimination.” (52 Cal.3d at p. 77.)^[18]

Rojo stands for the proposition that violations of section 51 may not be asserted in the employment context. This rule is consistent with Supreme

Court precedent cited in Rojo. (See Isbister v. Boys’ Club of Santa Cruz, Inc., supra, 40 Cal.3d 72 , 83, fn. 12 [ 219 Cal.Rptr. 150 ]; Alcorn, supra, 2 Cal.3d at p. 500; see also Alch, supra, 122 Cal.App.4th at p. 391.) But Rojo does not mention either section 51.7 or section 52.1, and the two earlier Supreme Court decisions were authored before either statute had become law.

The rule that employment cases cannot be based on section 51 is explained simply: Section 51, on its face, applies to “accommodations, advantages, facilities, privileges, or services in all business establishments.” As the court in Alcorn stated, “there is no indication that the Legislature intended to broaden the scope of section 51 to include discriminations other than those made by a ‘business establishment’ in the course of furnishing goods, services or facilities to its clients, patrons or customers.” (Alcorn, supra, 2 Cal.3d at p. 500.)^[19]

Thus, even if we were to conclude that sections 51.7 and 52.1 were part of the Act (which we do not), the rule expressed in Rojo would have no application to the present case, as neither statute contains the limiting statutory language of section 51 that was instrumental to Rojo’s holding. (See Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064 , 1081 [ 130 Cal.Rptr.2d 892 , 63 P.3d 979 ] [cases are not authority for propositions not considered].)

4. Sections 51.7 and 52.1 Authorize a Private Cause of Action in Employment Cases

In the preceding sections we have held that sections 51.7 and 52.1 are not part of the Act and neither Rojo, supra, 52 Cal.3d 65 , the cases on which it is based, nor any other authorities cited by real parties prohibit a statutory claim in employment cases. Our inquiry is not over. Ultimately, the question before us is whether the statutes in question do create a private cause of action in the employment field. At its core, this is a matter for the Legislature. “The question of whether a regulatory statute creates a private right of action depends on legislative intent.” (Goehring v. Chapman University (2004) 121 Cal.App.4th 353 , 375 [ 17 Cal.Rptr.3d 39 ].) The Legislature also has the power to limit private statutory civil actions to, for example, certain classes of individuals or types of claims. (See Faria v. San Jacinto Unified School Dist. (1996) 50 Cal.App.4th 1939 , 1946 [ 59 Cal.Rptr.2d 72 ].)

Given this obvious state of affairs, we would find it odd that the Legislature intended to exclude employment discrimination, workplace violence and similar cases based on race or other characteristics from the protections of these statutes. The legislative history reveals no such intent. Assembly Bill No. 2986, which eventually became section 51.7, was assigned to the Assembly Committee on Labor Relations, a committee whose responsibilities included employment matters. A report from that committee acknowledged that, at the time of drafting, there were numerous laws protecting civil rights in “employment, housing and access to public accommodations and facilities.” (Assem. Com. on Labor Relations, Analysis of Assem. Bill No. 2986, supra, Apr. 20, 1976). Nevertheless, the report expressed concern that there was no specific prohibition protecting individuals from “violence because of their race, religion, ancestry, or national origin.” (Ibid.) Since “employment” was expressly mentioned in the report, it appears obvious that cases of this sort were intended to be included within the act’s coverage. One of the specific advantages of the proposed legislation was that an individual could immediately file a private civil action while at the same time pursuing a complaint with the FEPC. (Assem. Com. on Labor Relations, Analysis of Assem. Bill No. 2986, supra, Apr. 6, 1976.) Obviously, FEPC complaints included workplace matters. Similarly, the breadth of the assembly report for Assembly Bill No. 63, which eventually became section 52.1, reflects the continuing concern over hate-crime violence. Nothing suggests an intent to exclude the workplace. (See Assem. Com. on Public Safety, Analysis of Assem. Bill No. 63, supra, as amended Mar. 2, 1987, pp. 1-2.)

We have found no California case that squarely upholds a private action under either section 51.7 or 52.1 in the employment context. Our Supreme Court in Schifando, supra, 31 Cal.4th 1074 , seems to have assumed such a cause of action exists. The more narrow issue addressed by the court in Schifando was whether a city employee was required to exhaust both FEHA and the city charter administrative remedies as a condition to filing his employment discrimination suit. In the course of its discussion, the court stated: “In other words, although the FEHA does not limit the application of other state statutes (e.g., Civ. Code, § 51.7), or constitutional provisions involving discrimination, it expressly preempts local governmental laws, regulations, and procedures that would affect the rights included in its provisions.” (31 Cal.4th at p. 1082.)^[20]

The same assumption was made in 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199 , 1210 [ 78 Cal.Rptr.2d 533 ], in which the appellate