BILL ANALYSIS �
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 655|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: SB 655
Author: Wright (D)
Amended: 4/15/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 4/23/13
AYES: Evans, Corbett, Jackson, Leno, Monning
NOES: Anderson
NO VOTE RECORDED: Walters
SUBJECT : Fair Employment and Housing Act: unlawful practices
SOURCE : AARP California
California Employment Lawyers Association
DIGEST : This bill provides that for purposes of a Fair
Employment and Housing Act (FEHA) claim, the employee shall
prevail if the employee has proven that a protected
characteristic was a substantial factor in the adverse
employment action. This bill also provides that if an employer
proves as an affirmative defense that it would have taken the
same adverse employment action against an employee, at the same
time, for lawful reasons, absent consideration of the protected
characteristic, the court shall award, in addition to any other
available remedy, a $25,000 statutory penalty payable to the
employee.
ANALYSIS : Existing law, FEHA prohibits discrimination in
housing and employment on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental
CONTINUED
SB 655
Page
2
disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age, or
sexual orientation. (Government Code Section 12920 et seq.)
This bill:
1. Provides that for purposes of a claim of an unlawful practice
under FEHA, the employee shall prevail if he/she proves that
a protected characteristic was a substantial factor in the
adverse employment action.
2. Defines "substantial factor" to mean that a reasonable person
will conclude that the factor contributed to the harm. It
must be more than a remote or trivial factor but need not be
the only cause of the harm to the employee.
3. Provides that if an employer proves as an affirmative defense
that it would have taken the same adverse employment action
against an employee, at the same time, for lawful reasons,
absent consideration of the protected characteristic, the
court shall grant, in addition to any other available remedy,
a $25,000 statutory penalty to be awarded directly to the
employee. This bill also provides that a court may also
grant as relief any other relief that, in the judgment of the
court, will effectuate the purpose of FEHA.
4. Provides that an employee shall not be entitled to
reinstatement or backpay.
Background
Existing law, FEHA, prohibits discrimination in housing and
employment because 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 (protected characteristics). In FEHA cases, parties
are subject to a three-stage burden-shifting test, commonly
referred to as the McDonnell Douglas test, which begins with the
burden on the plaintiff to prove it is more likely than not that
the employer took an adverse employment action based on a
prohibited characteristic. (See McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 792; Guz v. Bechtel National Inc. (2000)
CONTINUED
SB 655
Page
3
24 Cal.4th 317, 354-356.)
The McDonnell Douglas test presupposes that there is only one
reason for an employer to have taken an adverse employment
action against an employee. However, in cases where a court
finds that an employer had mixed motives (both discriminatory
and nondiscriminatory reasons) for the adverse employment
action, courts have struggled to determine what level of
causation is required for a court to find that the
discriminatory motives were the main reason for the adverse
employment action.
Recently, the California Supreme Court faced this challenge in
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, and held
that, in order for a plaintiff to prevail on a mixed-motive FEHA
case, the plaintiff must prove that the discriminatory motive
was the substantial factor in the defendant's adverse employment
decision. This bill codifies the court's holding in the Harris
case, as well as provides a definition of "substantial factor."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 4/25/13)
AARP California (co-source)
California Employment Lawyers Association (co-source)
Asian Pacific American Legal Center
California Professional Firefighters
Church State Council
Congress of Racial Equality of California
Consumer Attorneys of California
Disability Rights Education and Defense Fund
Equal Rights Advocates
Equality California
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Aid Society - Employment Law Center
Mexican American Legal Defense and Education Fund
National Center for Lesbian Rights
Transgender Law Center
Women's Employment Rights Clinic of Golden Gate University
School of Law
CONTINUED
SB 655
Page
4
OPPOSITION : (Verified 4/25/13)
Acclamation Insurance Management Services
Allied Managed Care
California Association of Joint Powers Authorities
California Chamber of Commerce
California Chapter of American Fence Association
California Defense Counsel
California Employment Law Council
California Farm Bureau Federation
California Fence Contractors' Association
California Grocers Association
California Manufacturers and Technology Association
California Retailers Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
Western Electrical Contractors Association
ARGUMENTS IN SUPPORT : According to the author's office, this
bill follows the court's ruling in Harris v. City of Santa
Monica (2013) 56 Cal.4th 203 by recognizing and addressing mixed
motive discriminatory practices in the workplace and provides
clarity and guidance for the "substantial factor" standard that
was adopted, but left undefined by the court. This bill
codifies the definition of "substantial factor" consistent with
the California Supreme Court's previous decisions interpreting
this phrase (See Bockrath v. Aldrich Chemical Co., Inc. (1999)
21 Cal.4th 71, Rutherford v. Owens-Illinois, Inc. (1997) 16
Cal.4th 953).
This bill will also restore FEHA's prescriptive function to
provide effective remedies for redressing, preventing, and
deterring unlawful discrimination. By establishing a civil
penalty of $25,000 for discrimination that is proven to be a
"substantial factor" in an adverse employment action and by
providing non-economic relief for the aggrieved worker, this
bill strikes the right balance in preventing and deterring
unlawful employment practices and redressing their adverse
effects.
ARGUMENTS IN OPPOSITION : An opposition coalition asserts that
the Harris court held that "for there to be a valid
CONTINUED
SB 655
Page
5
discrimination claim, the employee must prove the discriminatory
intent was a substantial motiving factors for the employer's
decision. SB 655 undermines this unanimous decision by
re-defining the term 'substantial factor' to mean discriminatory
intent that is more than just 'trivial or remote,' but
eliminates the need for the discriminatory intent to be the
'motivating' factor. While this definition tracks jury
instructions used in negligence cases where juries evaluate a
person's conduct to determine if it was the 'substantial factor'
of the injury, it fails to recognize case law defining that
term."
Opponents point to the court's discussion in Mayes v. Bryan
(2006) 139 Cal.App.4th 1075, regarding the use of a civil jury
instruction defining "substantial factor." Opponents note that
the Mayes court "agreed that this term means the act is 'a
factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or
trivial factor. It does not have to be the only cause of the
harm. Conduct is not a substantial factor in causing the harm
if the same harm would have occurred without that conduct."
(Emphasis in original.) Opponents further assert that this bill
will expose employers "to liability and statutory damages of at
least $25,000, even when discriminatory intent was not the
substantial factor that led to the employer's decision and the
employment decision would have still occurred regardless of the
discriminatory intent or bias."
AL:k 4/26/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED