Esberg

O'LEARY, J.

This lawsuit arose when Union Oil Company of California (UNOCAL) denied Dan Esberg, an employee then in his mid 50's, educational assistance benefits to pursue a master's degree in business administration. We must decide if UNOCAL's action constitutes unlawful age discrimination under California's Fair Employment and Housing Act (FEHA), Government Code sections 12900 et seq., or violates a fundamental public policy derived from constitutional or statutory law. (All statutory references are to the Government Code unless otherwise stated.) As did the trial court, we conclude an employer is not barred by California law from providing educational benefits to younger workers while denying such benefits to employees over the age of 40.

Section 12940, subdivision (a), the state's anti-discrimination statute relating to virtually every category except age, i.e., "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or sexual orientation," makes it illegal for an employer "to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or…