Ca. Tuition Reimbursements Not Age-Protected

May 10, 2002 ( - It seems that Californians could be too old to learn - or at least to old to expect tuition reimbursement from your employer.

A California man, who sued his employer for age discrimination for not paying some of his college tuition, appeared to be on his way to a legal defeat.  During oral arguments, California Supreme Court justices peppered attorney Dale Fiola with questions and comments about the fact that the state’s Fair Employment and Housing Act (FEHA) didn’t bar employers from denying benefits to workers over 40.

Fiola represents plaintiff Dan Esberg who sued Union Oil Co. of California for not letting him pursue a master’s degree through the company’s educational reimbursement program.


Esberg had argued that he was protected from age discrimination by FEHA, but in a ruling last year the California 4th District Court of Appeal in Santa Ana disagreed. The court held that the state’s anti-discrimination statute covers virtually every category except age, and § 12941, which deals with age, makes no mention of preventing discrimination based on “compensation, terms, conditions or privileges of employment.”

“We may question the wisdom of the law, but we cannot rewrite it,” the 4th District ruled.

That sentiment was echoed by the justices on the state’s high court.  “The court cannot read into statutes that which the Legislature did not include,” Justice Joyce Kennard told Fiola, according to a news report in The Recorder. “The Legislature knows how to include and exclude. Age is not included in the benefits provision.”

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Kennard’s legal interpretation appeared to be widespread among her high court colleagues.

“The two statutes are different,” Chief Justice George told Fiola. He added that the lawyer was asking the court to “violate a cardinal rule of statutory construction” by suggesting that it interpret the anti-discrimination statute broadly enough to ignore the differences in the two sections.”

Esberg, a telecommunications specialist at the time, had already been reimbursed $16,000 through the program while working for a bachelor’s degree at the University of Redlands, but at age 57 was advised he was too old “to invest in” further, according to the news report.

“Isn’t it the Legislature,” Justice Marvin Baxter asked, “that has the responsibility to decide whether discrimination in the area of benefits is appropriate or inappropriate, and under what circumstances?”

Kennard pointed out that the state Legislature in 1998 passed a law that prevented age discrimination in regard to benefits.  “That was right on point. It would have helped your case,” she said. “Guess what? The governor vetoed the bill.”

If the California high court goes against Esberg, it would uphold a 2001 ruling by a California appeals court, which said that FEHA protects against almost every category of discrimination except age. 

The case is Esberg v. Union Oil Co., S096524.