BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2870
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          Date of Hearing:   April 21, 2004

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                                 Paul Koretz, Chair
                    AB 2870 (Mullin) - As Amended:  April 12, 2004
           
          SUBJECT  :   Employment: commissions.

           SUMMARY  :   Makes various changes to the Fair Employment and  
          Housing Act.  Specifically,  this bill  :  

          1) Eliminates a reference to the now obsolete Fair Employment  
             Practices Commission.

          2) Statutorily authorizes the Fair Employment and Housing  
             Commission (Commission) to conduct mediations at the request  
             of the Department of Fair Employment and Housing (DFEH) at  
             any time after a complaint is filed.

          3) Changes the title of the Commission's "hearing officers" to  
             "administrative law judges."

          4) Makes various amendments, as specified, to provisions of  
             current law related to discrimination on the basis of  
             pregnancy, childbirth or related medical condition.

          5) Provides that any money due a respondent by a state agency  
             may be offset to satisfy a final order or decision of the  
             Commission.

          6) Specifies that, in the absence of the Commission's own  
             procedural regulations, the commission may rely upon  
             pertinent provisions of the Administrative Procedure Act.

          7) Requires a reviewing court, when denying a petition for writ  
             of mandate seeking review of an order or decision of the  
             Commission, to enter judgment denying the petition and  
             enforcing the final order or decision.

          8) Specifies that the Commission is not liable for attorney's  
             fees when exercising its adjudicatory functions.

          9) Provides guidelines for the determination of civil penalties  
             in housing discrimination cases that parallel existing  
             guidelines for administrative fines in employment cases.








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          10)Provides that, in housing discrimination cases where the  
             respondent (such as a real estate broker) is licensed by the  
             state, the Commission shall provide the licensing agency with  
             a copy of any decision or order where it has been determined  
             that an unlawful practice occurred in connection with the  
             exercise of that license. 

          11)Makes additional technical and conforming changes to existing  
             law.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   This bill is sponsored by the Fair Employment and  
          Housing Commission (Commission).  The Commission and the  
          Department of Fair Employment and Housing (DFEH) are separate  
          entities in state government, but together are responsible for  
          the enforcement of several California civil rights laws,  
          including the Fair Employment and Housing Act (FEHA), the Unruh  
          Civil Rights Act, and the Ralph Civil Rights Act.  

          FEHA bans employment discrimination on the bases of race,  
          religious creed, color, national origin, ancestry, physical and  
          mental disability, medical condition, marital status, sex,  
          sexual orientation, and age; it also provides job-protected  
          leaves for pregnancy disability and for family and medical  
          reasons.  FEHA also bans housing discrimination on the bases of  
          race, color, religion, sex, marital status, national origin,  
          ancestry, familial status, sexual orientation, disability, and  
          source of income.

          Among its various functions, the Commission conducts hearings  
          and issues decisions in cases prosecuted before it by DFEH.   
          Where an unlawful practice is found, the Commission may order a  
          range of remedies, including back pay, compensatory damages,  
          administrative fines and civil penalties, injunctive relief, and  
          reinstatement.  The Commission also promulgates regulations  
          interpreting the laws within its jurisdiction.  The Commission  
          also serves as a forum for civil rights issues and provides  
          information and education on the laws it enforces.

          This bill makes a number of amendments to FEHA, which the  
          Commission states are designed to "clean up" and clarify the  
          law.  The Commission states that it has identified provisions in  
          FEHA which are outmoded, unclear or inefficient.  Many of these  








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          changes are technical and nonsubstantive in nature.  However,  
          some of the more substantive changes are discussed in detail  
          below:

            1.    Authorization of Mediation Activities

           Under current law, the Commission is authorized to conduct  
          hearings in cases that are prosecuted by DFEH.  According to the  
          Commission, under current practice it routinely conducts  
          mediations at the parties' request, using hearing officers as  
          mediators in such cases.  The Commission states that this bill  
          will codify this current practice and additionally authorize it  
          to mediate a case after a complaint has been filed, if DFEH so  
          asks.

              2.   Title Change from "Hearing Officer" to "Administrative  
               Law Judge"

           Current law authorizes the Commission to appoint hearing officer  
          to conduct hearings.  This bill would change this designation in  
          the following manner: (1) changing the title of "hearing  
          officer" to "administrative law judge;" (2) authorizing  
          mediation functions as pursuant to the previous amendment; and  
          (3) specifying that the hearing officers of the Commission shall  
          become administrative law judges on the effective date of this  
          bill.

          According to the Commission, this name change more accurately  
          reflects the duties of current Commission hearing officers.

            3.  Pregnancy Related Discrimination

           Currently, FEHA prohibits discrimination on the basis of sex for  
          all employers covered by FEHA (generally those with five or more  
          employees)(Government Code  12940(a)).  Current law defines  
          "sex" to include, among other things, pregnancy, childbirth, or  
          medical conditions related to pregnancy or childbirth  
          (Government Code  12926(p).  Therefore, FEHA's general  
          prohibition of sex discrimination also prohibits unlawful  
          activity on the basis of pregnancy and related conditions.

          Federal law, under Title VII of the Civil Rights Act of 1964,  
          contains similar protections against sex discrimination, but  
          only applies to employers with 15 or more employees.









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          FEHA also contains a more specific provision containing certain  
          enumerated protections against discrimination on the basis of  
          pregnancy (Government Code  12945).  However, the Commission  
          contends that there are numerous inconsistencies,  
          contradictions, and confusion between this provision and the  
          other general sections of FEHA.  The Commission contends that  
          this bill will remedy those discrepancies.
           
           First, this bill eliminates current Government Code Section  
          12945(a).  The Commission contends that this subdivision is  
          unnecessary because these practices are already forbidden by the  
          general "sex" discrimination provisions of FEHA.

          Second, this bill eliminates Government Code Section  
          12945(b)(1).  The Commission states that, to the extent that  
          this provision requires employers to treat disabled pregnant  
          employees the same as other non-pregnant disabled employees,  
          this is already covered by the general "sex" discrimination  
          provisions of FEHA.  

          Moreover, the Commission contends that the elimination of  
          subdivision (b)(1) will remedy contradictory distinctions  
          between Title VII employers (15 or more employees) and non-Title  
          VII employers (5 to 14 employees).  The Commission contends that  
          this subdivision (when read in conjunction with subdivision (e))  
          permits non-Title VII employers (5 to 14 employees): (1) to  
          refuse to provide employees with health insurance coverage for  
          the medical costs of pregnancy, childbirth or related medical  
          conditions; (2) to bar pregnant employees from training programs  
          under certain circumstances; and (3) to limit accrued leave for  
          a normal pregnancy to six weeks.  The Commission argues that all  
          three of these exceptions contradict the general "sex"  
          discrimination provisions of FEHA, which require that all  
          employers, both Title VII and non-Title VII, treat employees  
          affected by pregnancy, childbirth or related medical conditions  
          the same as other employees in hiring, firing, promotions,  
          training, and in other terms and conditions of employment.  In  
          addition, these three exceptions also contradict subdivision (d)  
          which provides that the 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" (the general FEHA  
          prohibition against "sex" discrimination).








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          Third, this bill clarifies language related to the four-month  
          leave afforded to women disabled by pregnancy, childbirth, or  
          related medical conditions.  According to the Commission, the  
          proposed language expressly clarifies what has always been  
          implicit and covered in the Commission's regulations - that an  
          employee has a right to return to work after taking pregnancy  
          disability leave.  (Title 2 C.C.R.  7291.9).

          Finally, this bill eliminates extraneous language in Section  
          12945(c).  As this bill eliminates the distinctions between  
          provisions for non-Title VII employers and Title VII employers,  
          the references to "employers subject to and not subject to Title  
          VII of the Federal Civil Rights Act of 1964" are now  
          unnecessary. 
           
             4.   Monetary Offset Provisions  

          This bill would provide that, in both employment and housing  
          cases, if the Commission imposes liability for actual damages,  
          administrative fine or civil penalty upon a respondent with  
          money due by any state agency, that money may be offset to  
          satisfy the Commission's final order or decision.

          According to the Commission, these provisions will facilitate  
          enforcement by allowing, for example, liens on money that the  
          state controls (such as state income tax returns) to satisfy  
          Commission monetary awards that are unpaid.

              5.   Writ of Mandate and Final Judgments  

          Existing law authorizes a respondent to appeal a decision or  
          order of the Commission to the superior court via a petition for  
          writ of mandate.  According to the Commission, currently, when a  
          court denies a writ of mandate, the Commission must initiate a  
          separate legal action to order to obtain an entry of judgment  
          denying the petition and enforcing the Commission's final order  
          or decision.  According to the Commission, this bill will  
          streamline the enforcement process and save both time and money  
          by requiring the court to automatically enter such a judgment at  
          the time it denies the petition for writ of mandate.

              6.   Attorney's Fees Provisions  

          This bill contains provisions in both employment and housing  








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          cases to provide that the Commission is not liable for  
          attorney's fees when exercising its adjudicatory function.

              7.   Civil Penalty Guidelines in Housing Discrimination Cases  

          Existing law requires the Commission, in assessing  
          administrative fines on employment cases, to find that the  
          respondent has been guilty of oppression, fraud, or malice,  
          express or implied, as required by specified provisions of the  
          Civil Code.  Existing law also sets forth factors that the  
          Commission shall consider in determining the amount of such  
          administrative fines.

          Current law does not, however, provide similar guidance to civil  
          penalties issues in housing discrimination cases.  This bill  
          would, therefore, establish the same "oppression, fraud, or  
          malice" requirements for the imposition of civil penalties in  
          housing cases as currently exist for employment cases.  In  
          addition, this bill would set forth the same factors for  
          consideration in determining the amount of such penalties.   
          Specifically, the Commission would be required to consider  
          relevant evidence, 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; and (7) multiple violations of  FEHA.

              8.   Licensing Notification in Housing Discrimination Cases  

          Current employment discrimination law provides that if the  
          Commission determines that a respondent employer has engaged in  
          unlawful employment discrimination, and the respondent is  
          licensed or granted a privilege by the state to do business or  
          engage in other activities, the Commission must provide a copy  
          of its decision or order to the agency granting the license or  
          privilege.

          This bill would enact a similar provision to the law regarding  
          housing discrimination.  According to the Commission, in housing  
          cases the respondent may be a licensed real estate broker or  
          other housing professional.  This bill would require the  
          Commission to report to an appropriate licensing authority that  
          the respondent has violated the housing provisions of FEHA.









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           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Labor Federation, AFL-CIO
          Fair Employment and Housing Commission, State of California  
          (sponsor)

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091