BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1442 (Liu)
          Version: February 19, 2016
          Hearing Date:  April 19, 2016
          Fiscal: Yes
          Urgency: No
          RD   


                                        SUBJECT
                                           
                    Discrimination:  regulations and enforcement

                                      DESCRIPTION 

          Existing law prohibits discrimination in the conduct, operation,  
          or administration of state or state-funded programs or  
          activities on the basis of race, national origin, ethnic group  
          identification, religion, age, sex, sexual orientation, color,  
          genetic information, or disability.  Existing law requires the  
          Secretary of the Health and Human Services Agency to administer  
          this anti-discrimination law and requires state agencies to  
          adopt their own regulations implementing the law, as specified. 

          This bill would instead require the Department of Fair  
          Employment and Housing to investigate and enforce this  
          anti-discrimination law, and to issue rules and regulations as  
          specified.  This bill would make other clarifying changes to  
          reorganize, simplify, and streamline the anti-discrimination  
          statutes for state or state-funded programs and activities.  

                                      BACKGROUND  

          Various statutes, such as the Fair Employment and Housing Act  
          (FEHA) and the Unruh Civil Rights Act, prohibit discrimination  
          in employment, housing, public accommodation, and services  
          provided by business establishments on the basis of specified  
          personal characteristics, such as sex, race, color, religion,  
          ancestry, national origin, age, disability, medical condition,  
          genetic information, marital status, or sexual orientation.    
          (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51  








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          for Unruh Civil Rights Act).  Separately, Section 11135 of the  
          Government Code specifically prohibits discrimination on the  
          basis of many of these same characteristics in the conduct,  
          operation, or administration of any program or activity that is  
          by the state or by any state agency, funded directly by the  
          state, or receives any financial assistance from the state. 

          State and local governments provide many important services and  
          programs.  These include police and fire protection,  
          recreational programs, social services, health care clinics, and  
          public schools.  Because Section 11135 covers not only the  
          state, but also state agencies and any program or activity at  
          the local level that receives funding from the state, it also  
          affects contractors with the state, where the services provided  
          locally are funded directly by the state, or where the  
          contractor receives any financial assistance from the state.  To  
          provide examples, some of the programs affected by Section 11135  
          include:  Medi-Cal, State Disability Insurance, CalWORKS, food  
          stamp programs, Unemployment Insurance, Workers' Compensation,  
          financial aid programs administered by the University of  
          California or the California State University, child support  
          services programs, services for veterans, legal services  
          programs, home loan assistance programs, licensing of  
          businesses, government contracting and procurement activities,  
          and voter registration.

          This bill seeks to place the investigation and enforcement  
          authority of this provision within the Department of Fair  
          Employment and Housing, which already enforces similar  
          provisions under FEHA and Unruh.  This bill would also make  
          other technical and clarifying changes throughout Section 11135  
          and related provisions to reorganize, simplify, and streamline  
          the state non-discrimination statutes.  

          This bill was heard in the Senate Governmental Organization  
          Committee on April 12, 2016, and passed out on a vote of 12-0.  

                                CHANGES TO EXISTING LAW
           
           1.Existing law  , the Fair Employment and Housing Act (FEHA),  
            prohibits discrimination in housing and employment on the  
            basis 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, sexual orientation,  







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            or military and veteran status.  (Gov. Code Sec. 12920 et  
            seq.)  

             Existing law  , FEHA, provides specific definitions for various  
            protected bases (Gov. Code Sec. 12926) and further provides  
            that "race, religious creed, color, national origin, ancestry,  
            physical disability, mental disability, medical condition,  
            genetic information, marital status, sex, age, sexual  
            orientation, or military and veteran status" includes a  
            perception that the 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.  (Gov. Code  
            Sec. 12926(o).)  
             
            Existing law  , the Unruh Civil Rights Act, provides that all  
            persons in California are free and equal, and regardless of a  
            person's sex, race, color, religion, ancestry, national  
            origin, disability, medical condition, genetic information,  
            marital status, sexual orientation, citizenship, primary  
            language, or immigration status, everyone is entitled to the  
            full and equal accommodations, advantages, facilities,  
            privileges, or services in all business establishments.  (Civ.  
            Code Sec. 51.)

             Existing law  , the Unruh Civil Rights Act, provides definitions  
            for various protected bases and imports certain definitions  
            from FEHA.  (Civ. Code Sec. 51(e).) The Unruh Civil Rights  
            Act, further provides that "sex, race, color, religion,  
            ancestry, national origin, disability, medical condition,  
            genetic information, marital status, sexual orientation,  
            citizenship, primary language, or immigration status" includes  
            a perception that the person has any particular characteristic  
            or characteristics within the listed categories or that the  
            person is associated with a person who has, or is perceived to  
            have, any particular characteristic or characteristics within  
            the listed categories.  (Civ. Code Sec. 51(e)(6).)
                                  
             Existing law  , Section 11135 of the Government Code, prohibits  
            any person in this state from being unlawfully denied, on the  
            basis of race, national origin, ethnic group identification,  
            religion, age, sex, sexual orientation, color, genetic  
            information, or disability, full and equal access to the  
            benefits of, or the unlawful 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  







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            state, or receives any financial assistance from the state.   
            (Gov. Code Sec. 11135(a).)  

             Existing law  , Section 11135, imports various definitions from  
            FEHA and the Unruh Civil Rights Act for certain protected  
            bases, including "disability," "sex or sexual orientation,"  
            and "genetic information."  (Gov. Code Sec. 11135(c)(1), (e),  
            (g).)  Existing law provides, for these purposes, that "race,  
            national origin, ethnic group identification, religion, age,  
            sex, sexual orientation, color, or disability" includes 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.  (Gov. Code  
            Sec. 11135(f).)  

             Existing law  provides that the prohibitions and sanctions  
            imposed for violating this anti-discrimination statute are in  
            addition to any other prohibitions and sanctions imposed by  
            law.  Existing law, in relevant part, provides that this  
            anti-discrimination article (Gov. Code Sec. 11135 et seq.)  
            shall not be interpreted in a manner that would adversely  
            affect lawful programs which benefit the disabled, the aged,  
            minorities, and women, and that this article and its  
            implementing regulations may be enforced by a civil action for  
            equitable relief, which may be independent of any other rights  
            and remedies.  (Gov. Code Sec. 11139.) 

             This bill  would amend the list of characteristics upon which  
            discrimination in the conduct, operation, or administration of  
            state or state-funded programs or activities is prohibited to  
            also prohibit discrimination on the basis of ancestry, medical  
            condition, and marital status. 

             This bill  would repeal the provisions defining terms in  
            Section 11135, above, and, instead, provide that the protected  
            bases referenced in Section 11135 have the same meanings as  
            those terms are defined under FEHA, as specified.  

             This bill  would, instead, provide that these laws shall not be  
            interpreted in a manner that would undermine lawful programs  
            which benefit members of the protected bases above.

           2.Existing law  provides that in enacting SB 105 (Burton, Ch.  
            1102, Stats. 2002), it was the intention of the Legislature to  
            apply to California State Universities (CSUs) certain  







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            provisions that relate to improving accessibility of existing  
            technology to increase the successful employment of  
            individuals with disabilities, as specified.  (Gov. Code Sec.  
            11135(c)(2).)  

             Existing law  provides that it is the policy of this state to  
            facilitate and support the development and operation of  
            housing for homeless youth, and authorizes the provision of  
            housing for homeless youth, as specified.  (Gov. Code Sec.  
            11139.3.)  

             This bill  would repeal legislative intent language in Section  
            11135 relating to the application of specified technology  
            provisions to CSUs.

             This bill  would repeal and recast the above provisions  
            relating to the policy of this state to facilitate and support  
            the development and operation of housing for homeless youth to  
            fall under FEHA.  

             This bill  would repeal and recast various other provisions  
            that authorize governmental agencies to engage in various  
            outreach and recruitment programs and activities for minority  
            groups to increase diversity in public employment and public  
            contracting, and that relate to improving the accessibility of  
            technology to increase the successful employment of  
            individuals with disabilities, as specified. 

           3.Existing law  requires each state agency that administers a  
            state funded program or activity and that enters into  
            contracts for the performance of services to be provided to  
            the public in the aggregate amount in excess of $100,000 per  
            year to adopt such rules and regulations as are necessary to  
            carry out the purpose and provisions of Section 11135 et seq.,  
            as specified.  (Gov. Code Sec. 11138.)  

             Existing law  requires that the Secretary of the California  
            Health and Human Services (CHHS), with the advice and  
            concurrence of the Fair Employment and Housing Council of the  
            DFEH, establish standards for determining which persons are  
            protected by this article prohibiting discrimination in state  
            or state-funded programs and activities, as well as standards  
            for determining which practices are discriminatory.  The  
            Secretary, with the cooperation of the council, is required to  
            assist state agencies in coordinating their programs and  







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            activities and to consult with such agencies, as necessary, so  
            that consistent policies, practices, and procedures are  
            adopted with respect to the enforcement provisions of this  
            anti-discrimination law.  (Gov. Code Sec. 11139.5.)  

             Existing law  requires any state agency administering a state  
            funded program or activity that has reasonable cause to  
            believe that a contractor, grantee, or local agency has  
            violated the anti-discrimination provisions of Section 11135,  
            above, to notify the contractor, grantee, or local agency of  
            such violation.  Existing law requires the state agency, after  
            considering all relevant evidence, to determine whether there  
            is probable cause to believe that a violation of that law, or  
            its implementing regulations, have occurred, and, if so, to  
            cause a hearing to be conducted, as specified.  (Gov. Code  
            Sec. 11136.)  

             This bill  would, instead, require that the agency submit a  
            complaint detailing the alleged violations to the Department  
            of Fair Employment and Housing for investigation and  
            determination pursuant to specified law.  

             This bill  would repeal the statute requiring the Secretary of  
            CHHS to administer Section 11135 et seq., and would also  
            repeal the requirement that each state agency that administers  
            a state funded program or activity and enters into contracts  
            of a specified size to individually develop rules and  
            regulations to implement the article.

           4.Existing law  specifies the functions, powers, and duties of  
            DFEH, which include, among other things, to receive,  
            investigate, conciliate, mediate, and prosecute complaints  
            alleging practices made unlawful pursuant to FEHA and other  
            specified civil rights laws, including the Unruh Civil Rights  
            Act.  (Gov. Code Sec. 12930(f).) Existing law provides that  
            the Fair Employment and Housing Council of the DFEH has  
            specified functions, powers, and duties, including to adopt,  
            promulgate, amend, and rescind suitable rules, regulations and  
            standards that interpret, implement, and apply all provisions  
            of FEHA.  (Gov. Code Sec. 12935(a)(1).) 

             This bill  would add that DFEH has the function, power, and  
            duty to receive, investigate, conciliate, mediate, and  
            prosecute complaints alleging practices made unlawful pursuant  
            to Section 11135 et seq., except for complaints brought under  







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            specified educational equity laws for K-12 schools and  
            investigated pursuant to specified regulations, and not  
            otherwise within the jurisdiction of the DFEH.  

             This bill  would provide that nothing in the above prevents the  
            director of DFEH or his or her authorized representative, in  
            his or her discretion, from making, signing, and filing a  
            complaint pursuant to certain FEHA enforcement provisions,  
            alleging practices made unlawful under Section 11135. 

             This bill  would provide that the remedies available to DFEH in  
            conciliating, mediating, and prosecuting complaints alleging  
            these practices (in violation of Section 11135) are the same  
            as those available to the department in conciliating,  
            mediating, and prosecuting complaints alleging violations of  
            FEHA's anti-discrimination provisions. 

             This bill  would add that the Fair Employment and Housing  
            Council of the DFEH has the power and duty to adopt,  
            promulgate, amend, and rescind suitable rules, regulations and  
            standards that interpret, implement, and apply all provisions  
            of Section 11135 et seq., and specified civil rights laws,  
            including the Unruh Civil Rights Act. 

           5.Existing law  requires educational equity in K-12 schools, as  
            specified.  Specifically, existing law provides that it is the  
            policy of the State of California to afford all persons in  
            public schools, regardless of their disability, gender, gender  
            identity, gender expression, nationality, race or ethnicity,  
            religion, sexual orientation, or any other characteristic that  
            is contained in the definition of hate crimes, as specified,  
            equal rights and opportunities in the educational institutions  
            of the state. The purpose of the educational equity laws is to  
            prohibit acts that are contrary to that policy and to provide  
            remedies therefor.  (Ed. Code Sec. 200.)  Existing law  
            provides that no person shall be subjected to discrimination  
            on these bases in any program or activity conducted by an  
            educational institution that receives, or benefits from, state  
            financial assistance.   (Ed. Code Sec. 220.)  

             Existing law  provides that these laws requiring educational  
            equity in K-12 schools shall be implemented pursuant to  
            existing regulations and procedures promulgated pursuant to  
            the Government Code Section 11138 (which requires nearly each  
            state agency to adopt rules and regulations to implement  







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            Section 11135), governing the filing and handling of written  
            complaints of prohibited discrimination.   (Ed. Code Sec.  
            261.) 

             This bill  would repeal the provision, above, providing for the  
            implementation of the state's K-12 educational equity laws  
            pursuant to the rules and regulations adopted by each agency  
            for the implementation of Section 11135. 

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author: 

            Government Code sections 11135-11139.7 prohibit discrimination  
            in state-funded programs; however, many of the forms of  
            discrimination prohibited by these sections are also  
            prohibited by other existing statutes.  Consequently, section  
            11135, et seq. ("section 11135") is, in large part, redundant  
            or obsolete.  In addition, section 11135 requires the  
            Secretary of the Health and Human Services Agency to  
            administer parts of the anti-discrimination provisions, and  
            requires nearly each state department to adopt its own  
            regulations implementing section 11135.  But the state entity  
            with expertise in enforcing anti-discrimination laws is the  
            Department of Fair Employment and Housing, which makes it the  
            more logical choice to administer section 11135.  In addition,  
            almost all departments are out of compliance with section  
            11135's rulemaking requirement, which could expose the state  
            to liability.  Therefore, existing law fails to provide for  
            the effective implementation and enforcement of those  
            activities prohibited by section 11135 that are not already  
            prohibited by other laws. 

            SB 1442 amends existing law to delete redundant provisions and  
            create an effective, centralized mechanism for implementing  
            the laws prohibiting discrimination in state-funded programs.

          2.    Bill moves investigation and enforcement authority for  
            Section 11135 to the Department of Fair Employment and Housing   


          As noted in the Background, existing law prohibits  
          discrimination in employment, housing, and public accommodation  







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          and services provided by business establishments on the basis of  
          specified characteristics, such as race, sex, sexual  
          orientation, age, religion, national origin, or disability,  
          under the Fair Employment and Housing Act (FEHA) and the Unruh  
          Civil Rights Act.  (See Gov. Code Sec. 12920 et seq.; Civ. Code  
          Sec. 51).  Separately, Section 11135 of the Government Code  
          specifically prohibits discrimination in the conduct, operation  
          or administration of state or state-funded programs or  
          activities on the basis of race, national origin, ethnic group  
          identification, religion, age, sex, sexual orientation, color,  
          genetic information, or disability.  

          Whereas the Department of Fair Employment and Housing (DFEH) is  
          charged with enforcing anti-discrimination and civil rights  
          violations under both FEHA and the Unruh Civil Rights Act,  
          existing law, in contrast, charges the Secretary of Health and  
          Human Services to administer Section 11135's anti-discrimination  
          law and requires each state agency, as specified, to adopt such  
          rules and regulations as are necessary to carry out the purpose  
          and provisions of that section, prohibiting discrimination on  
          the basis of certain protected characteristics in the conduct,  
          operation, or administration of state or state-funded programs  
          or activities. 

          This bill now places the authority for investigation and  
          enforcement of Section 11135's anti-discrimination laws under  
          DFEH and gives authority to the Fair Employment and Housing  
          Council of DFEH to promulgate rules and regulations as are  
          necessary to implement the law.  As stated by DFEH, the sponsor  
          of this bill: 

            The Department of Fair Employment and Housing is the state  
            agency responsible for enforcing California's civil rights  
            laws.  However, Government Code section 11135 et seq. requires  
            the Secretary of the Health and Human Services Agency to  
            administer certain anti-discrimination provisions and requires  
            nearly each state department to adopt its own regulations  
            implementing section 11135.  This structure is inefficient  
            because the Health and Human Services Agency is not otherwise  
            charged with civil rights enforcement and because departments  
            are required to create duplicative regulatory schemes to  
            interpret their 11135 obligations.  Senate Bill 1442 creates a  
            logical and efficient mechanism for implementing the laws  
            prohibiting discrimination in state-funded programs by giving  
            the Department of Fair Employment and Housing authority to  







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            investigate, mediate and prosecute section 11135 complaints in  
            the same manner it handles other discrimination claims.

          3.    Protected characteristics  

          Over the years, various bills have sought to harmonize these  
          various anti-discrimination laws to ensure that each statute  
          protects against discrimination on the same list of protected  
          characteristics.  (See Prior Legislation.)  Currently, both FEHA  
          and the Unruh Civil Rights Act prohibit against discrimination  
          on the basis of sex, race, color, religion, ancestry, national  
          origin, age, disability, medical condition, genetic information,  
          marital status, or sexual orientation, though Unruh also  
          prohibits discrimination on the basis of citizenship, primary  
          language, or immigration status.  Section 11135 of the  
          Government Code, prohibiting discrimination in the conduct,  
          operation, or administration of any state or state-funded  
          program or activity, prohibits discrimination on all of the same  
          characteristics as FEHA, except for ancestry, medical condition,  
          or marital status.   This bill would now ensure that Section  
          11135 prohibits discrimination on the same bases as FEHA by  
          adding "ancestry,"  "medical condition," and "marital status."

          Staff notes that there remains one minor difference between the  
          FEHA list of protected bases, and the Section 11135 protected  
          bases.  Namely, FEHA prohibits discrimination on the basis of  
          "mental disability" and "physical disability," whereas Section  
          11135 prohibits discrimination on the basis of "disability."   
                                              Under current law, there is no substantive difference despite  
          the use of different terminology because Section 11135  
          specifically defines "disability" to mean "any mental disability  
          or physical disability, as defined" under FEHA.  Under this  
          bill, however, confusion could arise because this bill would  
          otherwise repeal the Section 11135 definitions of protected  
          bases-including the definition of "disability" - and replace  
          them with a general cross-reference to the section defining the  
          protected bases under FEHA, which does not include a correlating  
          definition for the term "disability."   (See Gov. Code Sec.  
          12926 definitions.)  This issue can be avoided by further  
          updating the terminology in Section 11135 to match the FEHA  
          terminology related to disability.  Accordingly, the author  
          offers the following amendment to replace reference to  
          "disability" as a protected basis in Section 11135 with the  
          terms "mental disability" and "physical disability" to avoid any  
          confusion:  







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             Author's Amendment 

             On page 5, line 17, strike "disability," and insert "mental  
            disability, physical disability" 

          4.    "Adversely affect" standard  

          Current law, Section 11139 of the Government Code, specifically  
          prohibits the anti-discrimination provisions of Section 11135  
          from being interpreted in a manner that would adversely affect  
          lawful programs which benefit the disabled, the aged,  
          minorities, and women.  This bill would now change that  
          provision to prohibit Section 11135 from being interpreted in a  
          manner that would undermine lawful programs which benefit the  
          protected classes, more generally.   Disability Rights  
          California, in a "support if amended" letter, writes that they  
          are concerned that a change in Section 11139 from "adversely  
          affect" to "undermine" standard could be detrimental.  

          Staff notes that, arguably, the "undermine" standard is more  
          protective than existing law, not less, but that the expansion  
          of this protection for programs benefiting the disabled, aged,  
          minorities, and women, to all protected bases could potentially  
          result in a weaker protection for those specific classes  
          currently listed.   

          The sponsor writes in response to this concern that by  
          "clarifying in Section 11139 that no lawful program designed to  
          'benefit members of the protected bases described in Section  
          11135' should be undermined advances the ability of  
          organizations and institutions to better serve all groups  
          including the disabled, the aged, minorities, and women.  This  
          section of law was last amended in 2001, predating recent  
          advancements made on marriage equality and other LGBT rights.   
          The LGBT community is just one example of a group not called out  
          in Section 11139 that can and should benefit from its  
          protections."

          5.   Technical amendments  

          The author offers the following technical amendments to (1)  
          correct a cross-reference to FEHA's enforcement provisions, and  







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          (2) to make other non-substantive changes:  

             Author's amendments:
             
            (1) On page 7, line 28, strike "12460" and insert "12960"

            (2) On page 4, lines 12 and 25, strike "business" and insert  
            "businesses"

              On page 7, line 17, strike "state," and insert "state"

              On page 7, line 22, after "section," insert "or"
              On page 7, line 23, strike "code." and insert "code,"

              On page 15, line 28, strike "the"

             
           Support  :  Disability Rights California (support if amended)  

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  Department of Fair Employment and Housing 

           Related Pending Legislation  :  None Known 

           Prior Legislation  :

          SB 600 (Pan, Ch. 282, Stats. 2015) expressly added citizenship,  
          primary language, and immigration status to the Unruh Civil  
          Rights Act's list of protected classes, except as specified.   
          The bill also specified that the inclusion of these  
          classifications under Unruh does not constitute a change in, but  
          is declaratory of, existing law.  

          SB 559 (Padilla, Ch. 261, Stats. 2011), in relevant part, added  
          "genetic information" to the list of characteristics on which  
          discrimination may not be based under FEHA, the Unruh Civil  
          Rights Act, and Section 11135.  

          SB 1441 (Keuhl, Ch. 182, Stats. 2006) added "sexual orientation"  
          to the characteristics on which discrimination may not be based  
          in the conduct, operation, or administration of any state or  
          state-funded program or activity under Section 11135.  The bill  







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          also incorporated the FEHA definition of "sex" and "sexual  
          orientation" into Section 11135 and clarified that the  
          perception of any of the characteristics listed in the  
          anti-discrimination statute is also covered.

          SB 105 (Burton, Ch. 1102, Stats. 2002) required governmental  
          entities to provide access to assistive technology, pursuant to  
          the ADA.

          SB 302 (Kuehl, Ch. 784, Stats. 2003) made Section 11135  
          provisions applicable to CSUs.

          AB 196 (Leno, Ch. 164, Stats. 2003) imported the hate crimes  
          statutes' definition of "gender" into FEHA.

           Prior Vote  :  Senate Governmental Organization Committee (Ayes  
          12, Noes 0)

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