BILL ANALYSIS SB 1252 Page 1 Date of Hearing: June 29, 2010 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair SB 1252 (Corbett) - As Amended: May 19, 2010 SENATE VOTE : 22-8 SUBJECT : HOUSING DISCRIMINATION: TECHNICAL AND CONFORMING REVISIONS KEY ISSUE : SHOULD CERTAIN HOUSING DISCRIMINATION PROVISIONS OF THE FAIR EMPLOYMENT AND HOUSING ACT BE CLARIFIED AND CONFORMED TO FEDERAL LAW? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This bill is sponsored by the Department of Fair Employment and Housing (DFEH) to make several technical revisions to the Fair Employment and Housing Act (FEHA) pertaining to housing discrimination. Specifically, this bill would make technical revisions to consistently include "source of income" as a characteristic protected from housing discrimination; clarify that admission preferences based on age, imposed in connection with a federally-approved housing program, do not constitute age discrimination in housing; and amend FEHA's civil penalty caps to conform to those under federal law. There is no substantive opposition, although two landlord groups seek an amendment that would codify an uncodified statement of legislative intent. SUMMARY : Makes miscellaneous technical and conforming changes to housing discrimination law. Specifically, this bill : 1)Clarifies that admission preferences based on age, imposed in connection with a federally-approved housing program, do not constitute age discrimination in housing. 2)Makes technical revisions to cross reference "source of income" where it already is among the list of classes protected for the purpose of clarity and consistency. 3)Increases the maximum civil penalties that may be assessed for a violation of the FEHA to $16,000, $37,500, and $65,000 for a SB 1252 Page 2 person's first, second, and third violations, respectively. EXISTING LAW : 1)Pursuant to the Fair Employment and Housing Act, declares it to be against public policy to discriminate on the grounds of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, or disability; and that every person has a civil right to be given the opportunity to seek, obtain, or hold employment and housing without facing discrimination based on these protected classes. (Gov. Code Secs. 12920, 12921.) 2)Declares it unlawful for any housing accommodation owner to inquire about; make known any preference or limitation as to; discriminate; or harass a person based on the person's race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability. (Gov. Code Sec. 12955.) 3)Provides under the FEHA that an owner may be subject to a civil penalty of up to $10,000 for his or her first violation of the FEHA. If it is the offender's second violation within five years, a civil penalty may be assessed of up to $25,000. If it is the offender's third violation within seven years, a civil penalty may be assessed of up to $50,000. (Gov. Code Sec. 12987.) 4)Provides under federal law that an administrative law judge may impose a civil penalty of up to $16,000 for a violation of a Fair Housing Act. If it is the offender's second violation within five years, a civil penalty may be assessed of up $37,500. If the offender has violated the Fair Housing Act three or more times within seven years, a civil penalty may be assessed of up to $65,000. (24 C.F.R. 180.671.) COMMENTS : This bill is sponsored by the Department of Fair Employment and Housing (DFEH), the state agency responsible for enforcing the FEHA and other civil rights laws. The FEHA prohibits employment and housing discrimination based on the protected classes of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability. The FEHA further provides that it is a civil right to be able to pursue and maintain housing or employment without facing discrimination. SB 1252 Page 3 According to a work-sharing agreement between the DFEH and the U.S. Department of Housing and Urban Development (HUD), the FEHA must remain substantially similar to the Fair Housing Amendments Act (FHAA) in order for the DFEH to receive complaint referrals and funding from HUD. According to the DFEH, for the current contract period the DFEH anticipates receiving over $3 million dollars from HUD, which it believes could be at risk if this bill is not enacted. Consistent References To "Source Of Income" Among The List Of Protected Classes. The FEHA declares that it is unlawful to discriminate on the basis of race, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, and disability. In 1999, housing discrimination on the basis of a person's "source of income" was added to the statute. However, the list of protected characteristics in related FEHA housing provisions was not similarly amended. SB 1252 would address that inconsistency by adding "source of income" to the list of protected classes in Government Code Sections 12920, 12921 and 12955.8. This change is technical and non-substantive in nature, and the author has added intent language to underscore that point. Nevertheless, two groups have filed opposition seeking to have that intent language codified, as discussed below. Civil Penalties Cap For Violations Of Housing Discrimination Conformed To Federal Law To Preserve Consistency And Eligibility For Federal Funds. State law provides that if a person is found to have engaged in unlawful discriminatory practices, a civil penalty may be assessed. Currently, the FEHA states that a civil penalty of up to $10,000 may be assessed against a violator for a first time offense. If it is the second violation in five years, a maximum civil penalty may be imposed of $25,000. If it is the third violation in seven years, a maximum civil penalty of $50,000 may be imposed. Similar caps under federal law have recently increased to $16,000, $37,500, and $65,000, for a person's first, second, and third violations, respectively. (24 C.F.R. Sec. 180.671.) This bill would keep the FEHA substantially equal to the FHAA by conforming the FEHA caps to federal law. Reconciling Differences Between Federal Law And State Law SB 1252 Page 4 Regarding Housing Selection Preferences With Respect To Age. The FEHA prohibits housing discrimination based on age, with the exception of housing accommodations specifically designed for senior citizens. However, FHAA does not expressly prohibit age discrimination in housing. Instead, the FHAA prohibits the refusal to sell or rent "?a dwelling to any person because of race, color, religion, sex, familial status, or national origin." (42 U.S.C. Sec. 3604.) This discrepancy becomes problematic because some federal housing programs have renter eligibility criteria requiring that at least one member of the household be 62 years old or older. Other members of the household may be any age, and the provider may not refuse to rent to a family with minor children, as long as one household member is at least 62. This type of requirement violates California law, which only provides an exemption for senior housing accommodations to make housing selections based on a minimum age requirement. Therefore, a failure to comply with the federal regulation will result in a loss of funding for housing providers, but compliance with the federal regulation will result in violation of state law and a potential DFEH complaint. SB 1252 would clarify that admission preferences based on age, imposed in connection with a federally-approved housing program, do not constitute age discrimination in housing. This clarification would allow for both FHAA and FEHA to operate without conflict. ARGUMENTS IN OPPOSITION : Two landlord groups seek a cosmetic change in the bill that they believe would further clarify the purpose of the bill. They would like the author to codify the currently uncodified statement of intent in the bill regarding the addition of the "source of income" to the non-substantive sections from which it was inadvertently omitted. This proposed amendment would itself be non-substantive. REGISTERED SUPPORT / OPPOSITION : Support None on file Opposition Apartment Association California Southern Cities SB 1252 Page 5 Orange County Apartment Association Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334