BILL ANALYSIS Ó 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 SB 1442 (Liu) Page 2 of ? 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, SB 1442 (Liu) Page 3 of ? 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 SB 1442 (Liu) Page 4 of ? 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 SB 1442 (Liu) Page 5 of ? 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 SB 1442 (Liu) Page 6 of ? 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 SB 1442 (Liu) Page 7 of ? 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 SB 1442 (Liu) Page 8 of ? 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 SB 1442 (Liu) Page 9 of ? 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 SB 1442 (Liu) Page 10 of ? 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: SB 1442 (Liu) Page 11 of ? 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 SB 1442 (Liu) Page 12 of ? (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 SB 1442 (Liu) Page 13 of ? 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) **************