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
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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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