Amended in Assembly June 21, 2016

Amended in Senate April 26, 2016

Senate Bill No. 1442

Introduced by Senator Liu

February 19, 2016

An act to repeal Section 261 of the Education Code, and to amend Sections 11135, 11136, 11137, 11139, 12930, and 12935 of, to add Section 12957 to, to add Chapter 18 (commencing with Section 7400) and Chapter 18.1 (commencing with Section 7405) to Division 7 of Title 1 of, and to repeal Sections 11138, 11139.3, 11139.5, 11139.6, and 11139.7 of, the Government Code, relating to discrimination.

LEGISLATIVE COUNSEL’S DIGEST

SB 1442, as amended, Liu. Discrimination: regulations and enforcement.

Existing law prohibits discrimination in employment, housing, and eligibility for government programs and benefits based upon specified personal characteristics. Under existing law, the Department of Fair Employment and Housing within the Business, Consumer Services, and Housing begin delete Agency, end delete begin insert Agency end insert is charged with enforcement of civil rights violations, including discrimination. Existing law authorizes the begin delete department, end delete begin insert department end insert and other state agencies that administer programs or activities funded by the state or that receive financial assistance from the state and that enter into contracts for services to be provided to the public, as specified, to promulgate regulations to prohibit discrimination.

This bill would reorganize various statutes regarding discrimination. The bill would also remove the authority of those state agencies to promulgate regulations to prohibit discrimination and would require the investigation and enforcement of the above-described antidiscrimination provisions to be performed by the department. begin insert The bill would require that specified regulations implementing these provisions be transferred to the portion of the California Code of Regulations that is under the authority of the department. end insert

Existing law authorizes the provision of housing for homeless youth, as defined, and occupies the field of regulation of housing for homeless youth. begin delete This end delete

begin insert This end insert bill would reorganize these provisions by making them part of the begin insert California end insert Fair Employment and Housing Act. The bill would also make conforming changes.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 261 of the Education Code is repealed.

SEC. 2.  

Chapter 18 (commencing with Section 7400) is added
to Division 7 of Title 1 of the Government Code, to read:

 

Chapter  18. Bidding and Outreach Programs

 

7400.  

(a) (1) The Legislature finds and declares that
subdivision (a) of Section 31 of Article I of the California
Constitution prohibits state and local government agencies from
discriminating against or granting preferential treatment to any
individual or group on the basis of race, sex, color, ethnicity, or
national origin in the operation of public employment, public
education, and public contracting. The Legislature finds that this
prohibition does not prevent governmental agencies from engaging
in inclusive public sector outreach and recruitment programs that,
as a component of general recruitment, may include, but not be
limited to, focused outreach and recruitment of minority groups
and women if any group is underrepresented in entry level positions
of a public sector employer.

(2) The Legislature also finds and declares that increasing the
number of businesses that participate in the bidding process in
public contracting results in more vigorous competition, and thus
assists state and local agencies in obtaining the desired quality of
work at a lower cost.

(3) It is the intent of this section that all governmental agencies
shall engage in general recruitment and outreach programs to all
individuals, including persons who are economically
disadvantaged.

(b) For purposes of this section, underrepresentation shall be
determined by comparing the minority group or the number of
women at the governmental agency with that group’s representation
in the current civilian labor force in the jurisdiction of the
governmental agency.

(c) State government employment shall use current state civilian
labor force data to implement this section.

(d) It is the intent of this section to allow public sector employers
to conduct outreach efforts with a goal of supplementing
word-of-mouth recruitment that should result in increasing diversity
of the public sector workforce.

(e) The type of recruitment activities allowed would include,
but not be limited to, placement of job announcements in the
following media instruments:

(1) General circulation newspapers, general circulation
publications, and general market radio and television stations,
including electronic media.

(2) Local and regional community newspapers.

(3) Newspapers, publications, and radio and television stations
that provide information in languages other than English and whose
primary audience is residents of minority and low-income
communities.

(4) Publications, including electronic media, that are distributed
to the general market and to newspapers, publications, and radio
and television stations whose primary audience is comprised of
minority groups or women.

(5) Recruitment booths at job fairs or conferences oriented to
both the general market and the economically disadvantaged as
well as those events drawing a significant participation by
minorities or women.

7401.  

(a) The Governor’s Task Force on Diversity and
Outreach, in its August 1, 2000, report, concluded that data on
minority business participation is not currently available, and that
lack of useful data on minority business participation in state
contracting is an overarching issue to be addressed.

(b) In contracting for and procuring goods, services, information
technology, construction, architecture, and engineering consulting,
and other consulting services, state and local departments and
agencies are authorized to engage in focused outreach activities
in addition to general outreach, for purposes of increasing
participation by California’s small business sector and increasing
diversity in the state’s contracting and procurement activities.

(c) Outreach activities may include, but are not limited to, the
following:

(1) Invitations to bid distributed by state and local departments
and agencies to state and local small business and trade associations
and chambers of commerce, including ethnic chambers of
commerce, and other business and professional associations,
including professional minority, women, and disabled
veteran-owned businesses and professional groups and associations,
as appropriate.

(2) Publication of advertising concerning state and local
contracting and procurement opportunities in trade papers and
other publications focusing on small business enterprises, including
publications and newspapers in languages other than English and
those whose primary readership is minority, women, or disabled
veteran-owned businesses.

(3) Outreach by small business advocates in each state or local
government department or agency to state and local small business
and trade associations and chambers of commerce, including ethnic
chambers of commerce, and other business and professional
associations, including professional minority, women, and disabled
veteran-owned businesses and professional groups and associations,
as appropriate.

SEC. 3.  

Chapter 18.1 (commencing with Section 7405) is added
to Division 7 of Title 1 of the Government Code, to read:

 

Chapter  18.1. Electronic and Information Technology

 

7405.  

The Legislature finds and declares that the ability to
utilize electronic or information technology is often an essential
function for successful employment in the current work world.

(a) In order to improve accessibility of existing technology, and
therefore increase the successful employment of individuals with
disabilities, particularly blind and visually impaired and deaf and
hard-of-hearing persons, state governmental entities, in developing,
procuring, maintaining, or using electronic or information
technology, either indirectly or through the use of state funds by
other entities, shall comply with the accessibility requirements of
Section 508 of the federal Rehabilitation Act of 1973, as amended
(29 U.S.C. Sec. 794d), and regulations implementing that act as
set forth in Part 1194 of Title 36 of the Federal Code of
Regulations.

(b) Any entity that contracts with a state or local entity subject
to Section 11135 for the provision of electronic or information
technology or for the provision of related services shall agree to
respond to, and resolve any complaint regarding accessibility of,
its products or services that is brought to the attention of the entity.

SEC. 4.  

Section 11135 of the Government Code is amended
to read:

11135.  

(a) No person in the State of California shall, on the
basis of sex, race, color, religion, ancestry, national origin, age,
mental disability, physical disability, medical condition, genetic
information, marital status, or sexual orientation, be unlawfully
denied full and equal access to the benefits of, or be unlawfully
subjected to discrimination under, any program or activity that is
conducted, operated, or administered by the state or by any state
agency, is funded directly by the state, or receives any financial
assistance from the state. Notwithstanding Section 11000, this
section applies to the California State University.

(b) With respect to discrimination on the basis of disability,
programs and activities subject to subdivision (a) shall meet the
protections and prohibitions contained in Section 202 of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132),
and the federal rules and regulations adopted in implementation
thereof, except that if the laws of this state prescribe stronger
protections and prohibitions, the programs and activities subject
to subdivision (a) shall be subject to the stronger protections and
prohibitions.

(c) The protected bases referenced in this section have the same
meanings as those terms are defined in Section 12926.

(d) The protected bases used in this section include a perception
that a person has any of those characteristics or that the person is
associated with a person who has, or is perceived to have, any of
those characteristics.

SEC. 5.  

Section 11136 of the Government Code is amended
to read:

11136.  

Whenever a state agency that administers a program
or activity that is funded directly by the state or receives any
financial assistance from the state has reasonable cause to believe
that a contractor, grantee, or local agency has violated the
provisions of Section 11135, Part 2.8 (commencing with Section
12900) of this code, Section 51, 51.5, 51.7, 54, 54.1, or 54.2 of
the Civil Code, or any regulation adopted to implement these
sections or Article 1 (commencing with Section 12960) of Chapter
7 of this code, the head of the state agency, or his or her designee,
shall notify the contractor, grantee, or local agency of such
violation and shall submit a complaint detailing the alleged
violations to the Department of Fair Employment and Housing for
investigation and determination pursuant to Article 1 (commencing
with Section 12960) of Chapter 7 of this code.

SEC. 6.  

Section 11137 of the Government Code is amended
to read:

11137.  

If it is determined that a contractor, grantee, or local
agency has violated the provisions of this article, pursuant to the
process described in Section 11136, the state agency that
administers the program or activity involved shall take action to
curtail state funding in whole or in part to such contractor, grantee,
or local agency.

SEC. 7.  

Section 11138 of the Government Code is repealed.

SEC. 8.  

Section 11139 of the Government Code is amended
to read:

11139.  

The prohibitions and sanctions imposed by this article
are in addition to any other prohibitions and sanctions imposed by
law.

This article shall not be interpreted in a manner that would
frustrate its purpose.

This article shall not be interpreted in a manner that would
undermine lawful programs which benefit members of the protected
bases described in Section 11135.

This article and regulations adopted pursuant to this article may
be enforced by a civil action for equitable relief, which shall be
independent of any other rights and remedies.

SEC. 9.  

Section 11139.3 of the Government Code is repealed.

SEC. 10.  

Section 11139.5 of the Government Code is repealed.

SEC. 11.  

Section 11139.6 of the Government Code is repealed.

SEC. 12.  

Section 11139.7 of the Government Code is repealed.

SEC. 13.  

Section 12930 of the Government Code is amended
to read:

12930.  

The department shall have the following functions,
powers, and duties:

(a) To establish and maintain a principal office and any other
offices within the state as are necessary to carry out the purposes
of this part.

(b) To meet and function at any place within the state.

(c) To appoint attorneys, investigators, conciliators, mediators,
and other employees as it may deem necessary, fix their
compensation within the limitations provided by law, and prescribe
their duties.

(d) To obtain upon request and utilize the services of all
governmental departments and agencies and, in addition, with
respect to housing discrimination, of conciliation councils.

(e) To adopt, promulgate, amend, and rescind suitable procedural
rules and regulations to carry out the investigation, prosecution,
and dispute resolution functions and duties of the department
pursuant to this part.

(f) (1) To receive, investigate, conciliate, mediate, and prosecute
complaints alleging practices made unlawful pursuant to Chapter
6 (commencing with Section 12940).

(2) To receive, investigate, conciliate, mediate, and prosecute
complaints alleging a violation of Section 51, 51.5, 51.7, 54, 54.1,
or 54.2 of the Civil Code. The remedies and procedures of this
part shall be independent of any other remedy or procedure that
might apply.

(3) To receive, investigate, conciliate, mediate, and prosecute
complaints alleging practices made unlawful pursuant to Article
9.5 (commencing with Section 11135) of Chapter 1 of Part 1,
except for complaints relating to educational equity brought under
Chapter 2 (commencing with Section 200) of Part 1 of Division 1
of Title 1 of the Education Code and investigated pursuant to the
procedures set forth in Subchapter 5.1 of Title 5 of the California
Code of Regulations, and not otherwise within the jurisdiction of
the department.

(A) Nothing in this part prevents the director or his or her
authorized representative, in his or her discretion, from making,
signing, and filing a complaint pursuant to Section 12960 or 12961
alleging practices made unlawful under Section 11135.

(B) Remedies available to the department in conciliating,
mediating, and prosecuting complaints alleging these practices are
the same as those available to the department in conciliating,
mediating, and prosecuting complaints alleging violations of Article
1 (commencing with Section 12940) of Chapter 6.

(g) In connection with any matter under investigation or in
question before the department pursuant to a complaint filed under
Section 12960, 12961, or 12980:

(1) To issue subpoenas to require the attendance and testimony
of witnesses and the production of books, records, documents, and
physical materials.

(2) To administer oaths, examine witnesses under oath and take
evidence, and take depositions and affidavits.

(3) To issue written interrogatories.

(4) To request the production for inspection and copying of
books, records, documents, and physical materials.

(5) To petition the superior courts to compel the appearance
and testimony of witnesses, the production of books, records,
documents, and physical materials, and the answering of
interrogatories.

(h) To bring civil actions pursuant to Section 12965 or 12981
and to prosecute those civil actions before state and federal trial
courts.

(i) To issue those publications and those results of investigations
and research as in its judgment will tend to promote good will and
minimize or eliminate discrimination in employment on the bases
enumerated in this part and discrimination in housing because of
race, religious creed, color, sex, gender, gender identity, gender
expression, marital status, national origin, ancestry, familial status,
disability, genetic information, or sexual orientation.

(j) To investigate, approve, certify, decertify, monitor, and
enforce nondiscrimination programs proposed by a contractor to
be engaged in pursuant to Section 12990.

(k) To render annually to the Governor and to the Legislature
a written report of its activities and of its recommendations.

(l) To conduct mediations at any time after a complaint is filed
pursuant to Section 12960, 12961, or 12980. The department may
end mediation at any time.

(m) The following shall apply with respect to any accusation
pending before the former Fair Employment and Housing
Commission on or after January 1, 2013:

(1) If an accusation issued under former Section 12965 includes
a prayer either for damages for emotional injuries as a component
of actual damages, or for administrative fines, or both, or if an
accusation is amended for the purpose of adding a prayer either
for damages for emotional injuries as a component of actual
damages, or for administrative fines, or both, with the consent of
the party accused of engaging in unlawful practices, the department
may withdraw an accusation and bring a civil action in superior
court.

(2) If an accusation was issued under former Section 12981,
with the consent of the aggrieved party filing the complaint an
aggrieved person on whose behalf a complaint is filed, or the party
accused of engaging in unlawful practices, the department may
withdraw the accusation and bring a civil action in superior court.

(3) Where removal to court is not feasible, the department shall
retain the services of the Office of Administrative Hearings to
adjudicate the administrative action pursuant to Sections 11370.3
and 11502.

(n) On any Section 1094.5 Code of Civil Procedure challenge
to a decision of the former Fair Employment and Housing
Commission pending on or after January 1, 2013, the director or
his or her designee shall consult with the Attorney General
regarding the defense of that writ petition.

SEC. 14.  

Section 12935 of the Government Code is amended
to read:

12935.  

The council shall have the following functions, powers,
and duties:

(a) To adopt, promulgate, amend, and rescind suitable rules,
regulations, and standards that do either of the following:

(1) Interpret, implement, and apply all provisions of this part,
Article 9.5 (commencing with Section 11135) of Chapter 1 of Part
1 of begin insert Division 3 of Title 2 of end insert this code, and Sections 51, 51.5, 51.7,
54, 54.1, and 54.2 of the Civil Code.

begin insert

(A) Chapter 1 (commencing with Section 98000), Chapter 2
(commencing with Section 98100), and Chapter 3 (commencing
with Section 98200) of Division 8 of Title 22 of the California
Code of Regulations shall be transferred from the portion of the
California Code of Regulations that is under the authority of the
California Health and Human Services Agency to the portion of
the California Code of Regulations that is under the authority of
the department.

end insert begin insert

(B) The council shall, within existing resources, adopt, amend,
or repeal regulations transferred to the department from the
California Health and Human Services Agency relating to Article
9.5 (commencing with Section 11135) of Chapter 1 of Part 1.

end insert

(2) Carry out all other functions and duties of the council
pursuant to this part.

(b) To meet at any place within the state and function in any
office of the department.

(c) To create or provide technical assistance to any advisory
agencies and conciliation councils, local or otherwise, as in its
judgment will aid in effectuating the purposes of this part, and to
empower them to study the problems of discrimination in all or
specific fields of human relationships or in particular instances of
employment discrimination on the bases enumerated in this part
or in specific instances of housing discrimination on the bases
enumerated in this part and to foster, through community effort or
otherwise, good will, cooperation, and conciliation among the
groups and elements of the population of the state and to make
recommendations to the Fair Employment and Housing Council
for the development of policies and procedures in general except
for procedural rules and regulations that carry out the investigation,
prosecution, and dispute resolution functions and duties of the
department. These advisory agencies and conciliation councils
shall be composed of representative citizens, serving without pay.

(d) To hold hearings, issue publications, results of inquiries and
research, and reports to the Governor and the Legislature that, in
its judgment, will tend to aid in effectuating the purpose of this
part, promote good will, cooperation and conciliation, and
minimize or eliminate unlawful discrimination, or advance civil
rights in the State of California.

SEC. 15.  

Section 12957 is added to the Government Code, to
read:

12957.  

(a) It is the policy of this state and the purpose of this
section to facilitate and support the development and operation of
housing for homeless youth.

(b) The provision of housing for homeless youth is hereby
authorized and shall not be considered unlawful age discrimination,
notwithstanding any other provision of law, including, but not
limited to, Sections 51, 51.2, and 51.10 of the Civil Code, Sections
11135, 12920, and 12955 of this code, Chapter 11.5 (commencing
with Section 50800) of Part 2 of Division 31 of the Health and
Safety Code, and local housing or age discrimination ordinances.

(c) This section shall not be construed to permit discrimination
against families with children.

(d) This section shall occupy the field of regulation of housing
for homeless youth by any local public entity, including, but not
limited to, a city, county, and city and county.

(e) For purposes of this section, the following definitions shall
apply:

(1) “At risk of becoming homeless” means facing eviction or
termination of one’s current housing situation.

(2) “Homeless youth” means either of the following:

(A) A person who is not older than 24 years of age, and meets
one of the following conditions:

(i) Is homeless or at risk of becoming homeless.

(ii) Is no longer eligible for foster care on the basis of age.

(iii) Has run away from home.

(B) A person who is younger than 18 years of age, who is
emancipated pursuant to Part 6 (commencing with Section 7000)
of Division 11 of the Family Code, and who is homeless or at risk
of becoming homeless.

(3) “Housing for homeless youth” means emergency,
transitional, or permanent housing tied to supportive services that
assist homeless youth in stabilizing their lives and developing the
skills and resources they need to make a successful transition to
independent, self-sufficient adulthood.