Harris

This action is based on a claimed violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (the FEHA) and poses the question, “Can a member of one protected minority group force her employer, through administrative mandate (Code Civ. Proc., § 1094.5), to use promotional tests which would benefit her but have a severe adverse impact on another protected minority group?” Our analysis of the law lead us to conclude she has no right to claim any benefit from such manifest adverse impact on the grounds that she may have her own claim of discrimination.

*1361 The FEHA permits use of a manifestly discriminatory test only if there is evidence of necessity based upon “job relatedness.” Without being relieved of the duty to investigate other claims of discrimination, the employer retains the discretion to inquire whether the necessities of a particular job may justify reliance upon the results of an otherwise impermissibly discriminatory test. The employer may in good faith produce evidence to support such a contention. However, an employer is not required to attempt to justify the use of discriminatory tests and has no legal duty to do so arising…

I concur with majority in its holdings regarding counts II and III of appellant’s complaint on the ground it specifies, namely, that appellant sued the wrong party in these counts.

*1373 I respectfully dissent, however, from the majority’s disposition of count I, the administrative mandamus count. In the first place, I believe the trial court made a fundamental error of law in the course of adjudicating count I. Second, I disagree with the majority’s dicta implying that administrative mandamus does not lie because the agency was exercising a “quasi-legislative” function. Third, I would hold that respondent San Francisco Civil Service Commission (CSC) abused its discretion by canceling the promotional tests when, as here, (1) that cancellation adversely impacted another protected minority, (2) the staff report it commissioned and ended up approving (hereafter Brady report) declared so unequivocally that the tests were “job-related,” and (3) the cancellation was so patently the result of pressures by the union representing the status quo.

I will deal with these issues in the order just noted.

A. The Trial Court Misapplied the Law Concerning Count I

First of all, I believe the…

LAMBDEN, Associate Justice.

This action is based on a claimed violation of the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) (the FEHA) and poses the question, "Can a member of one protected minority group force her employer, through administrative mandate (Code Civ. Proc., § 1094.5), to use promotional tests which would benefit her but have a severe adverse impact on another protected minority group?" Our analysis of the law lead us to conclude she has no right to claim any benefit from such manifest adverse impact on the grounds that she may have her own claim of discrimination.

I The FEHA permits use of a manifestly discriminatory test only if there is evidence of necessity based upon "job relatedness." Without being relieved of the duty to investigate other claims of discrimination, the employer retains the discretion to inquire whether the necessities of a particular job may justify reliance upon the results of an otherwise impermissibly discriminatory test. The employer may in good faith produce evidence to support such a contention. However, an employer is not required to attempt to justify the use of discriminatory tests and has no legal duty to…