Amended in Assembly September 6, 2013

Amended in Assembly August 6, 2013

Amended in Senate April 15, 2013

Amended in Senate April 1, 2013

Senate Bill No. 655

Introduced by Senator Wright

February 22, 2013

An act to amend Section 12965 of, and to add Section 12940.5 to, the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 655, as amended, Wright. Fair Employment and Housing Act: unlawful practices.

Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment, participate in a labor organization, and participate in employment training or apprenticeship programs without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. Existing law authorizes a person claiming to be aggrieved by an alleged unlawful practice under these provisions to file a complaint with the Department of Fair Employment and Housing and authorizes the department to bring a civil action on the behalf of the person in the case of a failure to eliminate an unlawful practice under these provisions.

This bill would provide that, in a claim of discrimination or retaliation under these provisions, the person claiming to have been aggrieved shall prevail if he or she has proven that a protected characteristic or activity was a substantial motivating factor, as defined, in the employment action or decision. If an employer pleads and proves that it would have made the same employment action or decision at the same time, without considering the protected characteristic or activity, the remedies available to the employee would be limited as specified. begin delete If end delete begin insert In addition, if end insert an employer begin delete fails to prove end delete begin insert pleads and proves end insert that it would have made the same employment action or decision at the same time without considering the protected characteristic or activity, the bill would authorize begin delete noneconomic damages, end delete injunctive begin delete relief, end delete begin insert relief end insert and attorney’s and expert’s fees against the employer and would require a specified civil penalty to be paid by that employer to the employee.

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 12940.5 is added to the Government
Code, to read:

12940.5.  

(a) For purposes of a claim of discrimination or
retaliation under this article, the person claiming to be aggrieved
shall prevail if he or she has proven to the trier of fact that the
protected characteristic or activity was a substantial motivating
factor in the employment action or decision.

(b) For purposes of this section, “substantial motivating factor”
means a factor that begin delete actually end delete contributed to the employment action
or decision. It begin delete must end delete begin insert shall end insert be more than a remote or trivial factor,
but need not be the only or main cause of the employment action
or decision. Evidence that the person claiming to be aggrieved had
a protected characteristic at the time of the employment action or
decision is not, by itself, sufficient proof that the protected
characteristic was a substantial motivating factor.

(c)  begin delete If end delete begin insert Once an individual proves a claim of discrimination or
retaliation under this article, if end insert an employer pleads and proves
that it would have made the same employment action or decision
at the same time without considering the protected characteristic
or activity, the remedies available to the employee shall be limited
to the remedies provided in paragraph (2) of subdivision (b) of
Section 12965.

SEC. 2.  

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, mediation,
or persuasion, or in advance thereof if circumstances warrant, the
director in his or her discretion may bring a civil action in the name
of the department on behalf of the person claiming to be aggrieved.
Prior to filing a civil action, the department shall require all parties
to participate in mandatory dispute resolution in the department’s
internal dispute resolution division free of charge to the parties in
an effort to resolve the dispute without litigation. In any civil
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. The civil action shall be
brought 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.

For any complaint treated by the director as a group or class
complaint for purposes of investigation, conciliation, mediation,
or civil action pursuant to Section 12961, a civil action shall be
brought, if at all, within two years after the filing of the complaint.
For any complaint alleging a violation of Section 51.7 of the Civil
Code, a civil action shall be brought, if at all, within two years
after the filing of the complaint. For all other complaints, a civil
action shall be brought, 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, mediation, or civil action 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) (1) If a civil action is not brought by the department within
150 days after the filing of a complaint, or if the department earlier
determines that no civil action will be brought, 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. 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.

(2) In a civil action brought pursuant to this subdivision, if,
under subdivision (c) of Section 12940.5, begin insert an individual proves a
claim of discrimination or retaliation under this article, but end insert an
employer pleads and proves that it would have made the same
employment action or decision at the same time without
considering the protected characteristic or activity, the employee
shall not be entitled to reinstatement, back pay, begin insert compensatory
damages, end insert or declaratory relief. The employee may recover
begin delete noneconomic damages caused by the adverse action end delete begin insert injunctive
relief end insert and attorney’s fees and costs, including expert witness fees,
pursuant to begin delete paragraph (1) end delete begin insert subdivision (d) end insert . The court shall also
begin delete grant, in addition to any other available remedy, end delete begin insert grant end insert a statutory
penalty of begin delete fifteen end delete begin insert up to twenty-five end insert thousand dollars begin delete ($15,000) end delete
begin insert ($25,000) end insert to be awarded directly to the employee. begin delete A court may
also grant injunctive relief commensurate to the nature and scope
of the violation. end delete begin insert This paragraph shall not affect the rights and
remedies provided under this section if an employer fails to plead
and prove that it would have made the same employment action
or decision at the same time without considering the protected
characteristic or activity. end insert

(c) A court may grant as relief in any action filed pursuant to
subdivision (a) any relief a court is empowered to grant in a civil
action brought pursuant to paragraph (1) of 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. In addition, in
order to vindicate the purposes and policies of this part, a court
may assess against the defendant, if the civil complaint or amended
civil complaint 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 Section 51.7 of the Civil Code, as an unlawful
practice prohibited under this part.

(d) In a civil action brought under this section, the court may
award to the prevailing party, including the department, reasonable
attorney’s fees and costs, including expert witness fees.

(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
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.

(f) (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.