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It’s not a good week to be an older employee in California. On Monday, the California Supreme Court unanimously ruled that employers have every right to provide employees older than 40 fewer benefits than younger co-workers. The ruling in Esberg v. Union Oil Company of California, 02 C.D.O.S. 5609, rejects claims of age discrimination by Dan Esberg, who had sued Unocal for refusing to let him pursue a master’s degree through a company-sponsored educational plan that paid tuition. The 56-year-old Esberg had already been reimbursed $16,000 for a bachelor’s degree at the University of Redlands, but was told he was too old “to invest in” further. “Although as individuals we may applaud plaintiff’s efforts at self-improvement through education,” Justice Joyce Kennard wrote for the court, “as judges we find nothing in either statutory or common law that obliges employers to ignore an employee’s age in deciding whether to fund such efforts.” Kennard also rejected Esberg’s claim that denying educational assistance because of an employee’s age constitutes a common law tort for which damages could be recovered. Esberg had argued that the state’s Fair Employment and Housing Act protected him from age discrimination, but both Orange County Superior Court Judge Raymond Ikola and Santa Ana’s 4th District Court of Appeal had disagreed. The appeals court held that Government Code � 12940 of the state’s anti-discrimination law covers every category except age, while � 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 held. The supreme court completely agreed. “Our role in construing a statute is simply to ascertain and to declare what is in terms or in substance contained in the statute,” Kennard wrote, “not to insert what has been omitted.” Kennard noted, as she had during oral arguments last month, that the state Senate and Assembly amended the law in 1998 to cover age discrimination only to see it vetoed by the governor. Neither Anaheim, Calif., solo practitioner Dale Fiola, who represented Esberg, nor David Ozeran, a partner at Los Angeles’ La Follette, Johnson, De Haas, Fesler, Silberberg & Ames, who represented Unocal, could be reached for comment Monday. But neither could have been surprised by the outcome. At oral argument, Fiola was pummeled from all sides by several of the justices who made it perfectly clear that he had no chance. “The Legislature knows how to include and exclude,” Kennard told Fiola at the time. “Age is not included in the benefits provision.”

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