BILL NUMBER: AB 2870 CHAPTERED
BILL TEXT
CHAPTER 647
FILED WITH SECRETARY OF STATE SEPTEMBER 21, 2004
APPROVED BY GOVERNOR SEPTEMBER 21, 2004
PASSED THE ASSEMBLY AUGUST 16, 2004
PASSED THE SENATE AUGUST 10, 2004
AMENDED IN SENATE JULY 13, 2004
AMENDED IN SENATE JUNE 29, 2004
AMENDED IN SENATE JUNE 17, 2004
AMENDED IN ASSEMBLY APRIL 12, 2004
INTRODUCED BY Assembly Member Mullin
FEBRUARY 20, 2004
An act to amend Sections 12903, 12928, 12935, 12942, 12945,
12963.3, 12972, 12973, 12987, 12987.1, and 12989.2 of the Government
Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2870, Mullin. Employment: commissions.
(1) Existing law establishes the Fair Employment and Housing
Commission, consisting of specified members, and provides that the
members of the Fair Employment Practice Commission become members of
the Fair Employment and Housing Commission.
This bill would delete the provision relating to members of the
now obsolete Fair Employment Practice Commission.
(2) Existing law grants certain powers to the Fair Employment and
Housing Commission, including the power to adopt regulations and
conduct hearings, and to appoint hearing officers.
This bill would additionally authorize the commission to conduct
mediations at the request of the Department of Fair Employment and
Housing at any time after a complaint is filed. The bill would
change the title of hearing officer to administrative law judge. The
bill would additionally provide that if the commission has found
that a respondent in a matter before it has engaged in an unlawful
practice, as specified, and is liable, any amount due to that
respondent by a state agency may be offset to satisfy the commission'
s final order or decision.
(3) Existing law requires the commission to conduct all actions
and procedures in accordance with specified statutes and its own
regulations.
The bill would require the commission to conduct all actions and
procedures in accordance with its procedural regulations and if it
does not have a regulation on an issue, to rely upon the provisions
of the Administrative Procedure Act.
(4) Existing law authorizes the commission, upon a finding that a
respondent has engaged in a prohibited act, to assess an
administrative fine, the amount of which is to be determined by
examining specified evidence.
The bill would provide that where a reviewing court denies a
petition for writ of mandate seeking review of a commission order or
decision, the court shall enter judgment denying the petition and
enforcing the commission's final order or decision. The bill would
provide that the commission is not liable for the attorney's fees of
the parties to an administrative adjudication. The bill would
authorize the commission to issue a civil penalty, the amount of
which is to be determined by examining specified evidence, and in
consideration of federal law.
(5) This bill would also make technical and conforming changes,
and clarifying changes, to existing law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12903 of the Government Code is amended to
read:
12903. There is in the State and Consumer Services Agency the
Fair Employment and Housing Commission. The commission shall consist
of seven members, to be known as commissioners, who shall be
appointed by the Governor, by and with the advice and consent of the
Senate, and one of whom shall be designated as chairperson by the
Governor. The term of office of each member of the commission shall
be for four years.
SEC. 2. Section 12928 of the Government Code is amended to read:
12928. Notwithstanding any other provision of this part, there is
a rebuttable presumption that "employer," as defined by subdivision
(d) of Section 12926, includes any person or entity identified as the
employer on the employee's Federal Form W-2 (Wage and Tax
Statement).
SEC. 3. Section 12935 of the Government Code is amended to read:
12935. The commission shall have the following functions, powers,
and duties:
(a) To adopt, promulgate, amend, and rescind suitable rules,
regulations, and standards (1) to interpret, implement, and apply all
provisions of this part, (2) to regulate the conduct of hearings
held pursuant to Sections 12967 and 12981, and (3) to carry out all
other functions and duties of the commission pursuant to this part.
(b) To conduct hearings pursuant to Sections 12967 and 12981.
(c) To conduct mediations at the request of the department at any
time after a complaint is filed pursuant to Section 12960, 12961, or
12980. The department may withdraw a request for mediation at any
time to pursue an investigation.
(d) To establish and maintain a principal office within the state
and to meet and function at any place within the state.
(e) To appoint an executive secretary, and any attorneys and other
employees as it may deem necessary, fix their compensation within
the limitations provided by law, and prescribe their duties.
(f) To hold hearings, subpoena witnesses, compel their attendance,
administer oaths, examine any person under oath and, in connection
therewith, to require the production of any books or papers relating
to any matter under investigation or in question before the
commission.
(g) To create or provide financial or technical assistance to any
advisory agencies and conciliation councils, local or otherwise, as
in its judgment will aid in effectuating the purposes of this part,
and to empower them to study the problems of discrimination in all or
specific fields of human relationships or in particular instances of
employment discrimination on the bases enumerated in this part or in
specific instances of housing discrimination because of race,
religious creed, color, national origin, ancestry, familial status,
disability, marital status, sex, or sexual orientation and to foster,
through community effort or otherwise, good will, cooperation, and
conciliation among the groups and elements of the population of the
state and to make recommendations to the commission for the
development of policies and procedures in general. These advisory
agencies and conciliation councils shall be composed of
representative citizens, serving without pay.
(h) With respect to findings and orders made pursuant to this
part, to establish a system of published opinions that shall serve as
precedent in interpreting and applying the provisions of this part.
Commission findings, orders, and opinions in an adjudicative
proceeding are subject to Section 11425.60.
(i) To issue publications and results of inquiries and research
that in its judgment will tend to promote good will and minimize or
eliminate unlawful discrimination. These publications shall include
an annual report to the Governor and the Legislature of its
activities and recommendations.
(j) Notwithstanding Sections 11370.3 and 11502, to appoint
administrative law judges, as it may deem necessary, to conduct
hearings and mediations. Each administrative law judge shall possess
the qualifications established by the State Personnel Board for the
particular class of position involved. The hearing officers of the
commission shall become administrative law judges on the effective
date of this subdivision.
SEC. 4. Section 12942 of the Government Code is amended to read:
12942. (a) Every employer in this state shall permit any employee
who indicates in writing a desire in a reasonable time and can
demonstrate the ability to do so, to continue his or her employment
beyond any retirement date contained in any private pension or
retirement plan.
This employment shall continue so long as the employee
demonstrates his or her ability to perform the functions of the job
adequately and the employer is satisfied with the quality of work
performed.
(b) Any employee indicating this desire and continuing the
employment shall give the employer written notice in reasonable time,
of intent to retire or terminate when the retirement or termination
occurs after the employee's retirement date.
(c) Nothing in this section or Section 12941 shall be construed to
prohibit any of the following:
(1) To prohibit an institution of higher education, as defined by
Section 1001 of Title 20 of the United States Code, from imposing a
retirement policy for tenured faculty members, provided that the
institution has a policy permitting reemployment of these individuals
on a year-to-year basis.
(2) To prohibit compulsory retirement of any employee who has
attained 70 years of age and is a physician employed by a
professional medical corporation, the articles or bylaws of which
provide for compulsory retirement.
(3) To prohibit compulsory retirement of any employee who has
attained 65 years of age and who for the two-year period immediately
before retirement was employed in a bona fide executive or a high
policymaking position, if that employee is entitled to an immediate
nonforfeitable annual retirement benefit from a pension,
profit-sharing, savings, or deferred compensation plan, or any
combination of those plans, of the employer for the employee, which
equals in the aggregate at least twenty-seven thousand dollars
($27,000).
SEC. 5. Section 12945 of the Government Code is amended to read:
12945. In addition to the provisions that govern pregnancy,
childbirth, or related medical conditions in Sections 12926 and
12940, it shall be an unlawful employment practice, unless based upon
a bona fide occupational qualification:
(a) For an employer to refuse to allow a female employee disabled
by pregnancy, childbirth, or related medical conditions to take a
leave for a reasonable period of time not to exceed four months and
thereafter return to work, as set forth in the commission's
regulations. The employee shall be entitled to utilize any accrued
vacation leave during this period of time. Reasonable period of time
means that period during which the female employee is disabled on
account of pregnancy, childbirth, or related medical conditions.
An employer may require an employee who plans to take a leave
pursuant to this subdivision to give the employer reasonable notice
of the date the leave shall commence and the estimated duration of
the leave.
(b) (1) For an employer to refuse to provide reasonable
accommodation for an employee for conditions related to pregnancy,
childbirth, or related medical conditions, if she so requests, with
the advice of her health care provider.
(2) For an employer who has a policy, practice, or collective
bargaining agreement requiring or authorizing the transfer of
temporarily disabled employees to less strenuous or hazardous
positions for the duration of the disability to refuse to transfer a
pregnant female employee who so requests.
(3) For an employer to refuse to temporarily transfer a pregnant
female employee to a less strenuous or hazardous position for the
duration of her pregnancy if she so requests, with the advice of her
physician, where that transfer can be reasonably accommodated.
However, no employer shall be required by this section to create
additional employment that the employer would not otherwise have
created, nor shall the employer be required to discharge any
employee, transfer any employee with more seniority, or promote any
employee who is not qualified to perform the job.
(c) This section shall not be construed to affect any other
provision of law relating to sex discrimination or pregnancy, or in
any way to diminish the coverage of pregnancy, childbirth, or medical
conditions related to pregnancy or childbirth under any other
provisions of this part, including subdivision (a) of Section 12940.
SEC. 6. Section 12963.3 of the Government Code is amended to read:
12963.3. (a) Depositions taken by the department shall be noticed
by issuance and service of a subpoena pursuant to Section 12963.1.
If, in the course of the investigation of a complaint, a subpoena is
issued and served on an individual or organization not alleged in the
complaint to have committed an unlawful practice, written notice of
the deposition shall also be mailed by the department to each
individual or organization alleged in the complaint to have committed
an unlawful practice.
(b) A deposition may be taken before any officer of the department
who has been authorized by the director to administer oaths and take
testimony, or before any other person before whom a deposition may
be taken in a civil action pursuant to Section 2025 of the Code of
Civil Procedure. The person before whom the deposition is to be
taken shall put the witness on oath and shall personally, or by
someone acting under the person's direction and in the person's
presence, record the testimony of the witness. The testimony shall
be taken stenographically and transcribed unless the parties agree
otherwise. All objections made at the time of the examination shall
be noted on the deposition by the person before whom the deposition
is taken, and evidence objected to shall be taken subject to the
objections.
SEC. 7. Section 12972 of the Government Code is amended to read:
12972. (a) The commission shall conduct all actions and
procedures in accordance with its procedural regulations.
(b) (1) If the commission does not have a procedural regulation on
a particular issue, the commission shall rely upon pertinent
provisions of the Administrative Procedure Act (Chapter 4 (commencing
with Section 11370)).
(2) Notwithstanding paragraph (1), the Administrative Adjudication
Bill of Rights set forth in Article 6 (commencing with Section
11425.10) of Chapter 4.5 of Part 1, and the rules for judicial review
set forth in Section 11523, shall apply to the commission.
(c) In addition to the discovery available to each party pursuant
to subdivision (a), the department and the respondent may each cause
a single deposition to be taken in the manner prescribed by law for
depositions in civil actions in the superior courts of this state
under Article 3 (commencing with Section 2016) of Chapter 3 of Title
3 of Part 4 of the Code of Civil Procedure.
SEC. 8. Section 12973 of the Government Code is amended to read:
12973. (a) Within one year of the effective date of every final
order or decision issued pursuant to this part, the department shall
conduct a compliance review to determine whether the order or
decision has been fully obeyed and implemented.
(b) If the time for judicial review of a final commission order or
decision has lapsed, or if all means of judicial review have been
exhausted, the department may apply to the superior court in any
county in which an action could have been brought under subdivision
(b) of Section 12965 for the enforcement of the order or decision or
order as modified in accordance with a decision on judicial review.
If, after a hearing, the court determines that an order or decision
has been issued by the commission and that either the time limits for
judicial review have lapsed, or the order or decision was upheld in
whole or in part on judicial review, the court shall issue a judgment
and order enforcing the order or decision or order as modified in
accordance with a decision on judicial review. The court shall not
review the merits of the order or decision. The court's judgment
shall be nonappealable and shall have the same force and effect as,
and shall be subject to all the provisions of law relating to, a
judgment in a civil action.
(c) Notwithstanding subdivisions (a) and (b), where the reviewing
court denies a petition for writ of mandate seeking review of a
commission order or decision, the court shall enter judgment denying
the petition and enforcing the commission's final order or decision.
(d) If the commission has found that a respondent has engaged in
an unlawful practice under this part and is liable for actual
damages, an administrative fine, or a civil penalty, any amount due
to that respondent by a state agency may be offset to satisfy the
commission's final order or decision.
(e) Notwithstanding any other provision of law, the commission is
not liable for attorney's fees of parties to the administrative
adjudication of cases brought before the commission, including
proceedings brought pursuant to Section 11523 of this code and
Section 1094.5 of the Code of Civil Procedure.
SEC. 9. Section 12987 of the Government Code is amended to read:
12987. (a) If the commission, after hearing, finds that a
respondent has engaged in any unlawful practice as defined in this
part, the commission shall state its findings of fact and shall issue
and cause to be served on the respondent an order requiring the
respondent to cease and desist from the practice and to take those
actions, as, in the judgment of the commission, will effectuate the
purpose of this part, including, but not limited to, any of the
following:
(1) The sale or rental of the housing accommodation if it is still
available, or the sale or rental of a like housing accommodation, if
one is available, or the provision of financial assistance, terms,
conditions, or privileges previously denied in violation of
subdivision (f) of Section 12955 in the purchase, organization, or
construction of the housing accommodation, if available.
(2) Affirmative or prospective relief, including injunctive or
other equitable relief.
(3) The payment to the complainant of a civil penalty against any
named respondent, not to exceed ten thousand dollars ($10,000),
unless, in a separate accusation, the respondent has been adjudged to
have, with intent, committed a prior violation of Section 12955. If
the respondent has, in a separate accusation, been adjudged to have
committed a prior violation of Section 12955 within the five years
preceding the filing of the complaint, the amount of the civil
penalty may exceed ten thousand dollars ($10,000), but may not exceed
twenty-five thousand dollars ($25,000). If the respondent, in
separate accusations, has been adjudged to have, with intent,
violated Section 12955 two or more times within the seven-year period
preceding the filing of the complaint, the civil penalty may exceed
twenty-five thousand dollars ($25,000), but may not exceed fifty
thousand dollars ($50,000). All civil penalties awarded under this
provision shall be collected by the department. The commission may
award the prevailing party, other than the state, reasonable attorney'
s fees and costs against any party other than the state, including
expert witness fees.
(4) The payment of actual damages to the complainant.
(b) In determining whether to assess a civil penalty pursuant to
this section, the commission shall find that the respondent has been
guilty of oppression, fraud, or malice, expressed or implied, as
required by Section 3294 of the Civil Code. In determining the
amount of a civil penalty, the commission shall consider Section
12955.6 and relevant evidence of, including, but not limited to, the
following:
(1) Willful, intentional, or purposeful conduct.
(2) Refusal to prevent or eliminate discrimination.
(3) Conscious disregard for fair housing rights.
(4) Commission of unlawful conduct.
(5) Intimidation or harassment.
(6) Conduct without just cause or excuse.
(7) Multiple violations of the Fair Employment and Housing Act.
(c) If the commission finds that the respondent has engaged in an
unlawful practice under this part, and the respondent is licensed or
granted a privilege by an agency of the state or the federal
government to do business, provide a service, or conduct activities,
and the unlawful practice is determined to have occurred in
connection with the exercise of that license or privilege, the
commission shall provide the licensing or privilege granting agency
with a copy of its decision or order.
(d) If the commission finds that the respondent has engaged in an
unlawful practice under this part and is liable for actual damages or
a civil penalty, any amount due to the respondent by a state agency
may be offset to satisfy the commission's final order or decision.
(e) No remedy shall be available to the aggrieved person unless
the aggrieved person waives any and all rights or claims under
Section 52 of the Civil Code prior to receiving a remedy, and signs a
written waiver to that effect.
(f) The commission may require a report of the manner of
compliance.
(g) If the commission finds that a respondent has not engaged in
any practice which constitutes a violation of this part, the
commission shall state its findings of fact and shall issue and cause
to be served on the complainant an order dismissing the accusation
as to that respondent.
(h) Any order issued by the commission shall have printed on its
face references to the provisions of the Administrative Procedure Act
which prescribe the rights of appeal of any party to the proceeding
to whose position the order is adverse.
SEC. 10. Section 12987.1 of the Government Code is amended to
read:
12987.1. (a) Any party aggrieved by the commission's final order
for relief may obtain a review of that order in accordance with the
provisions of Section 11523 of this code and Section 1094.5 of the
Code of Civil Procedure except that the limitations on the court's
remedial powers as described in subdivision (f) of Section 1094.5 of
the Code of Civil Procedure shall not apply.
(b) The superior court, in reviewing the commission's final order,
may award the following relief:
(1) Grant to the petitioner, or any other party, temporary relief,
including, but not limited to, a restraining order, or other order
as the court deems just and proper.
(2) Affirm, modify, or set aside, in whole or in part, the order,
or remand the order for further proceedings, and enforce the order to
the extent that it is affirmed or modified.
(c) Any party to the proceeding before the commission or aggrieved
person may intervene as a matter of right in the superior court
proceeding.
(d) When the time for petitioning a court for review of the
commission's order has expired, the department or any party to the
commission proceeding may petition a court for a decree enforcing the
commission's order. The court may grant any relief necessary to
ensure compliance with the commission's order.
(e) Notwithstanding subdivisions (a) to (d), inclusive, where the
reviewing court denies a petition for writ of mandate seeking review
of a commission order or decision, the court shall enter judgment
denying the petition and enforcing the commission's order or
decision.
SEC. 11. Section 12989.2 of the Government Code is amended to
read:
12989.2. (a) In a civil action brought under Section 12989 or
12989.1, if the court finds that a discriminatory housing practice
has occurred or is about to occur, the court may award the plaintiff
or complainant actual and punitive damages and may grant other
relief, including the issuance of a temporary or permanent
injunction, or temporary restraining order, or other order, as it
deems appropriate to prevent any defendant from engaging in or
continuing to engage in an unlawful practice. The court may, at its
discretion, award the prevailing party, other than the state,
reasonable attorney's fees and costs, including expert witness fees,
against any party other than the state.
(b) Notwithstanding any other provision of law, the commission is
not liable for the attorney's fees of parties to the administrative
adjudication of cases brought before the commission, including
proceedings under Sections 11523 and 12987.1 of this code and Section
1094.5 of the Code of Civil Procedure.