BILL ANALYSIS
AB 2870
Page 1
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