BILL NUMBER: AB 2706	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Bonnie Lowenthal
   (Coauthor: Assembly Member Hall)

                        FEBRUARY 19, 2010

   An act to amend Section 51.7 of the Civil Code, and to amend
Sections 12930, 12948, 12960, 12965, and 12970 of the Government
Code, relating to civil rights.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2706, as introduced, Bonnie Lowenthal. Civil rights: homeless
persons.
   Existing law sets forth various personal rights and provides that
all persons within California have the right to be free from
violence, or intimidation by the threat of violence, because of,
among other characteristics, their race, color, religion, ancestry,
national origin, political affiliation, or sex. Existing law further
permits an individual whose exercise or enjoyment of specified
personal rights have been interfered with to bring a civil action for
damages, including actual damages, exemplary damages, attorney's
fees, injunctive relief, and other appropriate relief.
   This bill would specify that homeless persons, as defined, are
entitled to the rights set forth under existing law, and would
provide that a homeless person has the right to be free from violence
or intimidation by threat of violence directed against that person
on the basis of that person's status as a homeless person.
   This bill would provide that the Department of Fair Employment and
Housing does not have jurisdiction or enforcement powers over the
protections specified in this bill.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 51.7 of the Civil Code is amended to read:
   51.7.  (a) All persons within the jurisdiction of this state have
the right to be free from any violence, or intimidation by threat of
violence, committed against their persons or property because of
political affiliation, or on account of any characteristic listed or
defined in subdivision (b) or (e) of Section 51, or position in a
labor dispute, or because another person perceives them to have one
or more of those characteristics. The identification in this
subdivision of particular bases of discrimination is illustrative
rather than restrictive. 
   (b) This section includes any violence, or intimidation by threat
of violence, committed against a person or property because the
person is, or is perceived to be, homeless. For purposes of this
section, "homeless person" means:  
   (1) A person who does not have a fixed, regular, and adequate
nighttime residence.  
   (2) A person that has a nighttime residence that constitutes any
of the following:  
   (A) A supervised, publicly or privately operated shelter
designated to provide temporary living accommodations, including, but
not limited to, welfare hotels, congregate shelters, and
transitional housing.  
   (B) An institution that provides a temporary residence for
individuals intended to be institutionalized.  
   (C) A public or private building or designated area that is not
ordinarily designed for, or ordinarily used for, sleeping
accommodations for persons.  
   (b) 
    (c)  This section does not apply to statements
concerning positions in a labor dispute which are made during
otherwise lawful labor picketing.
  SEC. 2.  Section 12930 of the Government Code is amended to read:
   12930.  The department shall have the following functions, powers,
and duties:
   (a) To establish and maintain a principal office and any other
offices within the state as are necessary to carry out the purposes
of this part.
   (b) To meet and function at any place within the state.
   (c) To appoint attorneys, investigators, conciliators, and other
employees as it may deem necessary, fix their compensation within the
limitations provided by law, and prescribe their duties.
   (d) To obtain upon request and utilize the services of all
governmental departments and agencies and, in addition, with respect
to housing discrimination, of conciliation councils.
   (e) To adopt, promulgate, amend, and rescind suitable rules and
regulations to carry out the functions and duties of the department
pursuant to this part.
   (f) (1) To receive, investigate, and conciliate complaints
alleging practices made unlawful pursuant to Chapter 6 (commencing
with Section 12940).
   (2) To receive, investigate, and conciliate complaints alleging a
violation of  subdivision (a) of Section 51.7 or  Section 51
, 51.5,  51.7,  54, 54.1, or 54.2 of the Civil
Code. The remedies and procedures of this part shall be independent
of any other remedy or procedure that might apply.
   (g) In connection with any matter under investigation or in
question before the department pursuant to a complaint filed under
Section 12960, 12961, or 12980:
   (1) To issue subpoenas to require the attendance and testimony of
witnesses and the production of books, records, documents, and
physical materials.
   (2) To administer oaths, examine witnesses under oath and take
evidence, and take depositions and affidavits.
   (3) To issue written interrogatories.
   (4) To request the production for inspection and copying of books,
records, documents, and physical materials.
   (5) To petition the superior courts to compel the appearance and
testimony of witnesses, the production of books, records, documents,
and physical materials, and the answering of interrogatories.
   (h) To issue accusations pursuant to Section 12965 or 12981 and to
prosecute those accusations before the commission.
   (i) To issue those publications and those results of
investigations and research as in its judgment will tend to promote
good will and minimize or eliminate discrimination in employment on
the bases enumerated in this part and discrimination in housing
because of race, religious creed, color, sex, marital status,
national origin, ancestry, familial status, disability, or sexual
orientation.
   (j) To investigate, approve, certify, decertify, monitor, and
enforce nondiscrimination programs proposed by a contractor to be
engaged in pursuant to Section 12990.
   (k) To render annually to the Governor and to the Legislature a
written report of its activities and of its recommendations.
  SEC. 3.  Section 12948 of the Government Code is amended to read:
   12948.  It is an unlawful practice under this part for a person to
deny or to aid, incite, or conspire in the denial of the rights
created by  subdivision (a) of Section 51.7 or  Section 51,
51.5,  51.7,  54, 54.1, or 54.2 of the Civil Code.
  SEC. 4.  Section 12960 of the Government Code is amended to read:
   12960.  (a) The provisions of this article govern the procedure
for the prevention and elimination of practices made unlawful
pursuant to Article 1 (commencing with Section 12940) of Chapter 6.
   (b) Any person claiming to be aggrieved by an alleged unlawful
practice may file with the department a verified complaint, in
writing, that shall state the name and address of the person,
employer, labor organization, or employment agency alleged to have
committed the unlawful practice complained of, and that shall set
forth the particulars thereof and contain other information as may be
required by the department. The director or his or her authorized
representative may in like manner, on his or her own motion, make,
sign, and file a complaint.
   (c) Any employer whose employees, or some of them, refuse or
threaten to refuse to cooperate with the provisions of this part may
file with the department a verified complaint asking for assistance
by conciliation or other remedial action.
   (d) No complaint may be filed after the expiration of one year
from the date upon which the alleged unlawful practice or refusal to
cooperate occurred, except that this period may be extended as
follows:
   (1) For a period of time not to exceed 90 days following the
expiration of that year, if a person allegedly aggrieved by an
unlawful practice first obtained knowledge of the facts of the
alleged unlawful practice after the expiration of one year from the
date of their occurrence.
   (2) For a period of time not to exceed one year following a
rebutted presumption of the identity of the person's employer under
Section 12928, in order to allow a person allegedly aggrieved by an
unlawful practice to make a substitute identification of the actual
employer.
   (3) For a period of time, not to exceed one year from the date the
person aggrieved by an alleged violation of  subdivision (a) of
 Section 51.7 of the Civil Code becomes aware of the identity of
a person liable for the alleged violation, but in no case exceeding
three years from the date of the alleged violation if during that
period the aggrieved person is unaware of the identity of any person
liable for the alleged violation.
   (4) For a period of time not to exceed one year from the date that
a person allegedly aggrieved by an unlawful practice attains the age
of majority.
  SEC. 5.  Section 12965 of the Government Code is amended to read:
   12965.  (a) In the case of failure to eliminate an unlawful
practice under this part through conference, conciliation, or
persuasion, or in advance thereof if circumstances warrant, the
director in his or her discretion may cause to be issued in the name
of the department a written accusation. The accusation shall contain
the name of the person, employer, labor organization, or employment
agency accused, which shall be known as the respondent, shall set
forth the nature of the charges, shall be served upon the respondent
together with a copy of the verified complaint, as amended, and shall
require the respondent to answer the charges at a hearing.
   For any complaint treated by the director as a group or class
complaint for purposes of investigation, conciliation, and accusation
pursuant to Section 12961, an accusation shall be issued, if at all,
within two years after the filing of the complaint. For any
complaint alleging a violation of  subdivision (a) of 
Section 51.7 of the Civil Code, an accusation shall be issued, if at
all, within two years after the filing of the complaint. For all
other complaints, an accusation shall be issued, if at all, within
one year after the filing of a complaint. If the director determines,
pursuant to Section 12961, that a complaint investigated as a group
or class complaint under Section 12961 is to be treated as a group or
class complaint for purposes of conciliation and accusation as well,
that determination shall be made and shall be communicated in
writing within one year after the filing of the complaint to each
person, employer, labor organization, employment agency, or public
entity alleged in the complaint to have committed an unlawful
practice.
   (b) If an accusation is not issued within 150 days after the
filing of a complaint, or if the department earlier determines that
no accusation will issue, the department shall promptly notify, in
writing, the person claiming to be aggrieved that the department
shall issue, on his or her request, the right-to-sue notice. This
notice shall indicate that the person claiming to be aggrieved may
bring a civil action under this part against the person, employer,
labor organization, or employment agency named in the verified
complaint within one year from the date of that notice. If the person
claiming to be aggrieved does not request a right-to-sue notice, the
department shall issue the notice upon completion of its
investigation, and not later than one year after the filing of the
complaint. A city, county, or district attorney in a location having
an enforcement unit established on or before March 1, 1991, pursuant
to a local ordinance enacted for the purpose of prosecuting HIV/AIDS
discrimination claims, acting on behalf of any person claiming to be
aggrieved due to HIV/AIDS discrimination, may also bring a civil
action under this part against the person, employer, labor
organization, or employment agency named in the notice. The superior
courts of the State of California shall have jurisdiction of those
actions, and the aggrieved person may file in these courts. An action
may be brought in any county in the state in which the unlawful
practice is alleged to have been committed, in the county in which
the records relevant to the practice are maintained and administered,
or in the county in which the aggrieved person would have worked or
would have had access to the public accommodation but for the alleged
unlawful practice, but if the defendant is not found within any of
these counties, an action may be brought within the county of the
defendant's residence or principal office. A copy of any complaint
filed pursuant to this part shall be served on the principal offices
of the department and of the commission. The remedy for failure to
send a copy of a complaint is an order to do so. Those actions may
not be filed as class actions or may not be maintained as class
actions by the person or persons claiming to be aggrieved where those
persons have filed a civil class action in the federal courts
alleging a comparable claim of employment discrimination against the
same defendant or defendants. In actions brought under this section,
the court, in its discretion, may award to the prevailing party
reasonable attorney's fees and costs, including expert witness fees,
except where the action is filed by a public agency or a public
official, acting in an official capacity.
   (c) (1) If an accusation includes a prayer either for damages for
emotional injuries as a component of actual damages, or for
administrative fines, or for both, or if an accusation is amended for
the purpose of adding a prayer either for damages for emotional
injuries as a component of actual damages, or for administrative
fines, or both, the respondent may within 30 days after service of
the accusation or amended accusation, elect to transfer the
proceedings to a court in lieu of a hearing pursuant to subdivision
(a) by serving a written notice to that effect on the department, the
commission, and the person claiming to be aggrieved. The commission
shall prescribe the form and manner of giving written notice.
   (2) No later than 30 days after the completion of service of the
notice of election pursuant to paragraph (1), the department shall
dismiss the accusation and shall, either itself or, at its election,
through the Attorney General, file in the appropriate court an action
in its own name on behalf of the person claiming to be aggrieved as
the real party in interest. In this action, the person claiming to be
aggrieved shall be the real party in interest and shall have the
right to participate as a party and be represented by his or her own
counsel. Complaints filed pursuant to this section shall be filed in
the superior court in any county in which unlawful practices are
alleged to have been committed, in the county in which records
relevant to the alleged unlawful practices are maintained and
administered, or in the county in which the person claiming to be
aggrieved would have worked or would have had access to public
accommodation, but for the alleged unlawful practices. If the
defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal
office. Those actions shall be assigned to the court's delay
reduction program, or otherwise given priority for disposition by the
court in which the action is filed.
   (3) A court may grant as relief in any action filed pursuant to
this subdivision any relief a court is empowered to grant in a civil
action brought pursuant to subdivision (b), in addition to any other
relief that, in the judgment of the court, will effectuate the
purpose of this part. This relief may include a requirement that the
employer conduct training for all employees, supervisors, and
management on the requirements of this part, the rights and remedies
of those who allege a violation of this part, and the employer's
internal grievance procedures.
   (4) The department may amend an accusation to pray for either
damages for emotional injury or for administrative fines, or both,
provided that the amendment is made within 30 days of the issuance of
the original accusation.
   (d) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
   (A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
   (B) The investigation of the charge is deferred by the Department
of Fair Employment and Housing to the Equal Employment Opportunity
Commission.
   (C) A right-to-sue notice is issued to the person claiming to be
aggrieved upon deferral of the charge by the Department of Fair
Employment and Housing to the Equal Employment Opportunity
Commission.
   (2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) expires when the federal
right-to-sue period to commence a civil action expires, or one year
from the date of the right-to-sue notice by the Department of Fair
Employment and Housing, whichever is later.
   (3) This subdivision is intended to codify the holding in Downs v.
Department of Water and Power of City of Los Angeles (1997) 58
Cal.App.4th 1093.
   (e) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
   (A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
   (B) The investigation of the charge is deferred by the Equal
Employment Opportunity Commission to the Department of Fair
Employment and Housing.
   (C) After investigation and determination by the Department of
Fair Employment and Housing, the Equal Employment Opportunity
Commission agrees to perform a substantial weight review of the
determination of the department or conducts its own investigation of
the claim filed by the aggrieved person.
   (2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) shall expire when the
federal right-to-sue period to commence a civil action expires, or
one year from the date of the right-to-sue notice by the Department
of Fair Employment and Housing, whichever is later.
  SEC. 6.  Section 12970 of the Government Code is amended to read:
   12970.  (a) If the commission finds that a respondent has engaged
in any unlawful practice under this part, it shall state its findings
of fact and determination and shall issue and cause to be served on
the parties an order requiring the respondent to cease and desist
from the unlawful practice and to take action, including, but not
limited to, any of the following:
   (1) The hiring, reinstatement, or upgrading of employees, with or
without backpay.
   (2) The admission or restoration to membership in any respondent
labor organization.
   (3) The payment of actual damages as may be available in civil
actions under this part, except as otherwise provided in this
section. Actual damages include, but are not limited to, damages for
emotional injuries if the accusation or amended accusation prays for
those damages. Actual damages awarded under this section for
emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other nonpecuniary losses shall not exceed, in
combination with the amounts of any administrative fines imposed
pursuant to subdivision (c), one hundred fifty thousand dollars
($150,000) per aggrieved person per respondent.
   (4) Notwithstanding paragraph (3), the payment of actual damages
up to one hundred fifty thousand dollars ($150,000) assessed against
a respondent for a violation of  subdivision (a) of  Section
51.7 of the Civil Code, as an unlawful practice under this part.
   (5) Affirmative or prospective relief to prevent the recurrence of
the unlawful practice.
   (6) A report to the commission as to the manner of compliance with
the commission's order.
   (b) An unlawful practice under this part alone is not sufficient
to sustain an award of actual damages pursuant to this section. The
department is required to prove, by a preponderance of the evidence,
that an aggrieved person has sustained actual injury. In determining
whether to award damages for emotional injuries, and the amount of
any award for these damages, the commission shall consider relevant
evidence of the effects of discrimination on the aggrieved person
with respect to any or all of the following:
   (1) Physical and mental well-being.
   (2) Personal integrity, dignity, and privacy.
   (3) Ability to work, earn a living, and advance in his or her
career.
   (4) Personal and professional reputation.
   (5) Family relationships.
   (6) Access to the job and ability to associate with peers and
coworkers.
   The commission shall also consider the duration of the emotional
injury, and whether that injury was caused or exacerbated by an
aggrieved person's knowledge of a respondent's failure to respond
adequately to, or to correct, the discriminatory practice or by the
egregiousness of the discriminatory practice.
   (c) In addition to the foregoing, in order to vindicate the
purposes and policies of this part, the commission may assess against
the respondent, if the accusation or amended accusation so prays, an
administrative fine per aggrieved person per respondent, the amount
of which shall be determined in accordance with the combined amount
limitation of paragraph (3) of subdivision (a).
   (d) In determining whether to assess an administrative fine
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 fines, the commission shall consider
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 the rights of employees.
   (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.
   The moneys derived from an administrative fine assessed pursuant
to this subdivision shall be deposited in the General Fund. No
administrative fine shall be assessed against a public entity. The
commission shall have no authority to award punitive damages as a
remedy for a finding of employment discrimination.
   (e) In addition to the foregoing, in order to vindicate the
purposes and policies of this part, the commission may assess against
the respondent if the accusation or amended accusation so prays, a
civil penalty of up to twenty-five thousand dollars ($25,000) to be
awarded to a person denied any right provided for by  subdivision
(a) of  Section 51.7 of the Civil Code, as an unlawful practice
prohibited under this part.
   (f) If the commission finds 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 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.
   (g) If the commission finds that a respondent has not engaged in
an unlawful practice under this part, the commission shall state its
findings of fact and determination and issue and cause to be served
on the parties an order dismissing the accusation as to that
respondent.
   (h) Any findings and determination made or any order issued
pursuant to this section shall be written and shall indicate the
identity of the members of the commission who participated therein.
   (i) Any order issued by the commission shall have printed on its
face references to the rights of appeal of any party to the
proceeding to whose position the order is adverse.
   (j) If the commission finds that a respondent has engaged in an
unlawful practice under this part, and it appears that this practice
consisted of acts described in Section 243.4, 261, 262, 286, 288,
288a, or 289 of the Penal Code, the commission, with the consent of
the complainant, shall provide the local district attorney's office
with a copy of its decision and order.
   (k) Notwithstanding Section 12960, if the commission finds that a
respondent has engaged in unlawful discrimination in housing under
Section 12948, the remedies afforded in Section 12987 or any other
provision in this part pertaining to housing discrimination, shall
apply.