BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 655|
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UNFINISHED BUSINSES
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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