In Jennings v. Marralle (1994) 8 Cal. 4th 121, a codified statute declared that employers' use of " '. . . arbitrary and unreasonable rules which bar or terminate employment on the ground of age offend the public policy of this State.' " ( Id. at p. 131, quoting Unemp. Ins. Code, 2070.) Even though that statute declared age discrimination in employment contrary to public policy, the FEHA did not prohibit age discrimination by an employer of fewer than five employees. (8 Cal. 4th at p. 132, citing 12926, subd. (d).) The Supreme Court of California determined that a terminated employee without a statutory remedy may not maintain a common-law tort action for damages for wrongful discharge in violation of a public policy against age discrimination. The California court stated that "while the Legislature has made a broad statement of policy, it has not extended that policy to small employers." Id., 130. The decision in Jennings rests, however, primarily on the fact that "no other statute or constitutional provision bars age discrimination . . . ." Id., 125. The court, therefore, concluded that there presently exists no "fundamental policy" that precludes age discrimination by a small employer.