BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Richard Alarcon, Chair
Date of Hearing: June 23, 2004 2003-2004 Regular
Session
Consultant: Frances Low Fiscal:Yes
Urgency:No
Bill No: AB 2870
Author: Mullin
Version: As Amended June 17, 2004
Subject: Employment: commission.
Purpose:
To delete provisions relating to the now obsolete Fair
Employment Practices Commission and make a number of
changes to the Fair Employment and Housing Act (FEHA) to
clarify current law.
Analysis:
Existing law prohibits discrimination in the work place
based on race, religious creed, color, national origin,
ancestry, sex, sexual orientation, age, marital status,
physical or mental disability and medical condition. It
also provides job-protected leaves for pregnancy disability
and for family and medical reasons. Existing law also
prohibits housing discrimination based on race, religious
creed, color, national origin, ancestry, sex, sexual
orientation, age, marital status, familial status,
disability and source of income.
The Fair Employment and Housing Act (FEHA) establishes two
separate entities, the Fair Employment and Housing
Commission (FEHC) and the Department of Fair Employment and
Housing (DFEH) that together, are responsible for enforcing
several California civil rights laws, including FEHA, the
Unruh Civil Rights Act and the Ralph Civil Rights Act.
FEHC is responsible for policy development and adjudicating
complaints and DFEH is responsible for processing
complaints and suits.
This Bill:
Authorizes FEHC to conduct mediations at the request of
DFEH, at any time after a complaint is filed.
Provides that any money due a respondent by a state
agency may be offset to satisfy a final order or decision
of the FEHC.
Requires a reviewing court, when denying a petition for
writ of mandate seeking review of an order or decision of
the FEHC, to enter judgment denying the petition and
enforcing the final order or decision.
Specifies that FEHC is not liable for attorneys' fees
when exercising its adjudicatory functions
Makes additional technical and conforming changes to
existing law.
Comments:
FEHC, the sponsor of this bill, argues that many of the
Fair Employment and Housing Act provisions are outmoded and
inefficient. These amendments are designed to "clean up"
and clarify the law and DFEH estimates the fiscal impact
would be minor and absorbable. According to the sponsor,
this bill would codify current practice in regard to
authorization of mediation activities and allow FEHC to
mediate a case, if requested by DFEH, after a complaint has
been filed. FEHC hearing officers' title would be changed
to "administrative law judge" to more accurately reflects
their current duties. Numerous inconsistencies,
contradictions and confusion relative to FEHA's protections
against discrimination on the basis of pregnancy would be
remedied by deleting Government Code Section 12945 (a),
(b) 1 and extraneous language in (c). Enforcement of FEHA
would be facilitated by allowing, for example, liens on
money that the state controls (such as state income tax
returns) to satisfy FEHC monetary awards that are unpaid.
In addition, requiring the court to automatically enter a
judgement enforcing FEHC's final order or decision at the
time it denies a petition for writ of mandate would save
both time and money by streamlining the enforcement
process.
Hearing Date: June 23, 2004 AB
2870
Consultant: Frances Low
Page 2
Senate Committee on Labor and Industrial Relations
This bill would also provide that FEHC is not liable for
attorney's fees when exercising its adjudicatory function
in both employment and housing cases. In assessing
administrative fines, FEHC would be required to find that
the respondent has been guilty of oppression, fraud or
malice as required by specified provisions of the Civil
Code for housing cases, in addition to employment cases.
If the FEHC determines that a respondent has violated
employment provisions of the FEHA, and the respondent is
licensed or granted a privilege by the state to do business
or engage in other activities, the FEHC is required to
report such violations to an appropriate licensing
authority. Likewise, this bill would require the FEHC to
report violations of the law's housing provisions.
Legislative History : This measure passed the Assembly by an
80 - 0 vote.
Support:
Fair Employment and Housing Commission, State of California
California Labor Federation, AFL-CIO
Opposition:
None received as of June 20, 2004
* * *
Hearing Date: June 23, 2004 AB
2870
Consultant: Frances Low
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Senate Committee on Labor and Industrial Relations