BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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          |SENATE RULES COMMITTEE            |                        SB 655|
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          Bill No:  SB 655
          Author:   Wright (D)
          Amended:  9/6/13
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-1, 4/23/13
          AYES:  Evans, Corbett, Jackson, Leno, Monning
          NOES:  Anderson
          NO VOTE RECORDED:  Walters

           SENATE FLOOR  :  21-13, 5/30/13
          AYES:  Beall, Block, Corbett, De León, DeSaulnier, Evans,  
            Hancock, Hernandez, Hill, Jackson, Lara, Leno, Lieu, Liu,  
            Monning, Padilla, Pavley, Price, Steinberg, Wright, Yee
          NOES:  Anderson, Berryhill, Cannella, Correa, Emmerson, Fuller,  
            Gaines, Huff, Knight, Nielsen, Roth, Walters, Wyland
          NO VOTE RECORDED:  Calderon, Galgiani, Hueso, Torres, Wolk,  
            Vacancy

           ASSEMBLY FLOOR  :  Not available


           SUBJECT  :    Fair Employment and Housing Act:  unlawful practices

           SOURCE  :     AARP California
                      California Employment Lawyers Association


           DIGEST  :    This bill provides that, in a claim of discrimination  
          or retaliation under its provisions, the person claiming to have  
          been aggrieved will prevail if he/she has proven that a  
          protected characteristic or activity was a substantial  
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          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.  If an employer fails to prove that it would have  
          made the same employment action or decision at the same time  
          without considering the protected characteristic or activity,  
          this bill authorizes noneconomic damages, injunctive relief, 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.

           Assembly Amendments  change the term "substantial factor," to  
          "substantial motivating factor," and reduce specified penalties  
          paid to employees from $25,000 to $15,000 and make other  
          clarifying and conforming changes.

           ANALYSIS  :    Existing law, under 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 also 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:

           1. Provides that for purposes of a claim of discrimination or  
             retaliation under provisions of this bill, the person  
             claiming to be aggrieved will prevail if he/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.


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           2. Defines "substantial motivating factor" to mean a factor  
             that actually contributed to the employment action or  
             decision.  It must 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.

           3. Specifies that 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 employee will not be entitled to reinstatement,  
             back pay, or declaratory relief.

           4. Provides that in a civil action brought pursuant to  
             provisions this bill, if an individual proves a claim of  
             discrimination or retaliation, but 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, compensatory damages, or  
             declaratory relief.  The employee may recover injunctive  
             relief and attorney's fees and costs, including expert  
             witness fees.  The court shall also grant a statutory penalty  
             of up to $25,000 to be awarded directly to the employee. 

           5. Provides that any relief a court is empowered to grant in a  
             civil action brought pursuant to provisions of this bill, in  
             addition to any other relief that, in the judgment of the  
             court, 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  
             $25,000 to be awarded to a person denied any right provided  
             the Civil Code, as an unlawful practice prohibited, as  
             specified.

           Background

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          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)  
          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  9/10/13)

          AARP California (co-source)
          California Employment Lawyers Association (co-source)
          AFSCME
          Asian Pacific American Legal Center
          California Labor Federation

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          California NAACP
          California Professional Firefighters
          California School Employees Association
          Church State Council
          Congress of Racial Equality of California
          Consumer Attorneys of California
          Disability Rights Education and Defense Fund
          Disability Rights Legal Center
          Equal Rights Advocates
          Equality California
          Greater Sacramento Urban League
          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
          SEIU
          Transgender Law Center
          Women's Employment Rights Clinic of Golden Gate University  
          School of Law

           OPPOSITION  :    (Verified  9/10/13)

          Greater Fresno Chamber of Commerce
          Porterville Chamber of Commerce

           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  

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          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  
          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  9/11/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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