BILL ANALYSIS Ó
SB 1442
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Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1442 (Liu) - As Amended June 21, 2016
As Proposed to be Amended
SENATE VOTE: 39-0
SUBJECT: Discrimination: regulations and enforcement
KEY ISSUE: should the statutes prohibiting discriminaiton in
various contexts be reorganized in order to clarify and
consolidate rulemaking, investigatory, and enforcement powers
within the department of Fair Employment and Housing?
SYNOPSIS
Although the Unruh Civil Rights Act and the Fair Employment and
Housing Act (FEHA) are the state's primary statutes prohibiting
discrimination on the basis of race, gender, religion, sexual
orientation, and other protected characteristics, many other
statutes prohibit other forms of discrimination in programs
administered by other state agencies. Most notably for purposes
of this bill, Government Code Section 11135 provides that no
person shall be denied equal access to the benefits of, or
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subjected to discrimination by, any program administered or
funded by the state, on the basis of sex, race, religion, sexual
orientation or any other protected characteristic. While the
Unruh Act prohibits discrimination in business establishments
and FEHA prohibits discrimination in employment and housing,
Section 11135 prohibits discrimination related to government
programs and benefits. A subsequent provision of the Government
Code requires each state agency that administers a state-funded
program to develop rules and regulations consistent with the
purpose of Section 11335. Another provision requires the
California Health and Human Services Agency (CHSSA), in
concurrence with the Department of Fair Employment and Housing
(DFEH), to develop standards for determining which persons are
protected by Section 11135 and which practices constitute
discrimination. According to DFEH, the sponsor of this
legislation, the existing framework has created a patchwork of
overlapping and redundant administrative rules and regulations
spread across different codes. This bill seeks to maintain the
substance of these rules and regulations while reorganizing
various anti-discrimination provisions and consolidating
rule-making, investigation, and enforcement within DFEH.
Because DFEH is "the state entity with the most expertise in
enforcing anti-discrimination laws," the author believes that it
is also "the most logical choice to administer Section 11135."
Although the bill has not faced any absolute or unqualified
opposition, a number of groups have expressed concern that
certain anti-discrimination rules may be lost in translation and
have conditioned their support on the author taking amendments
to ensure the continuity of existing regulations. The bill was
recently amended to address these concerns; however, the author
will take additional amendments in this Committee to further
ensure continuity of existing laws and regulations. In is
unclear whether these amendments will address the concerns of
all groups. The amendments are reflected in the summary and
analysis below.
SUMMARY: Reorganizes, replaces, and relocates various
anti-discrimination statutes and moves the authority to
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promulgate regulations that implement those statutes from
various state agencies to the Department of Fair Employment and
Housing. Specifically this bill:
1)Repeals and reorganizes various anti-discrimination statutes
and transfers the authority to promulgate the rules and
regulations that implement those statutes from the California
Health and Human Services Agency (CHHSA) and other state
agencies to the Department of Fair Employment and Housing
(DFEH).
2)Specifies that, as of January 1, 2017, certain portions of the
California Code of Regulations under the authority of the
California Health and Human Services Agency shall be
transferred to the portions of the California Code of
Regulations under the jurisdiction of FEHA and specifies that,
upon transfer, those regulations shall be deemed adopted by
the Fair Employment and Housing Council of the DFEH (Council).
3)Requires the Council, within existing resources, to adopt
additional regulations, as necessary, and to amend or repeal,
as necessary, the regulations transferred to the DFEH from
CHHSA, as specified.
4)Clarifies, consistent with other statutes, that discrimination
based on a person's "disability" includes discrimination based
on either a mental or physical disability.
5)Changes "ethnic group identification" in one section of the
Government Code to "ancestry" in order to be consistent with
all other anti-discrimination statutes.
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EXISTING LAW:
1)Provides, under the Unruh Civil Rights Act, that persons
within the jurisdiction of this state are free and equal, and
no matter what their sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, sexual orientation, citizenship,
primary language, or immigration status, are entitled to the
full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of
every kind whatsoever. (Civil Code Section 51.)
2)Provides that no person in this state shall, on the basis of
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or
disability, be unlawfully denied full and equal access to the
benefits of, or be unlawfully be subject 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. (Government Code Section 11135.)
3)Requires each state agency that administers a program or
activity that is funded directly by the state or receives any
financial assistance from the state and provides services to
the public, as specified, to adopt such rules and regulations
as are necessary to carry out the purpose and provisions of
specified anti-discrimination provisions in the Government
Code. (Government Code Section 11138.)
4)Requires the Secretary of California Health and Human Services
(Secretary), with the advice and concurrence of Fair
Employment and Housing Council of the Department of Fair
Employment and Housing (Council), to establish standards for
determining which persons are protected by anti-discrimination
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provisions in the Government Code and standards for
determining what practices are discriminatory. Specifies that
the Secretary and the Council shall assist state agencies in
coordinating their programs and activities as necessary so
that consistent policies, practices, and procedures are
adopted with respect to the anti-discrimination provisions of
the Government Code. (Government Code Section 11139.5.)
5)Makes it an unlawful employment practice, subject to certain
exceptions, for an employer because of the 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, or military and veteran
status of any person, to refuse to hire or employ the person
or to refuse to select the person for a training program
leading to employment, or to bar or to discharge the person
from employment or from a training program leading to
employment, or to discriminate against the person in
compensation or in terms, conditions, or privileges of
employment. (Government Code Section 12940.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill, which is sponsored by the Department of
Fair Employment and Housing (DFEH), seeks to reorganize various
anti-discrimination statutes in California and consolidate the
authority to promulgate rules and regulations pursuant to these
statutes within DFEH, and more specifically within the Fair
Employment and Housing Council of DFEH (Council), which, under
existing law, is given the power and duty to adopt, promulgate,
amend, and rescind rules and regulations consistent with the
anti-discrimination provisions in Fair Employment and Housing
Act (FEHA). According to the author, the problem with existing
law is that that anti-discrimination provisions are spread
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across different statutes and "nearly each state agency [is
required] to adopt its own implementing regulations." The
author points out that DFEH is "the state entity with the
expertise in enforcing anti-discrimination laws . . . which
makes it the more logical choice" to administer the
anti-discrimination statutes relating to state-funded programs.
This bill will correct this deficiency in existing law by
centralizing rule-making, investigation, and enforcement power
squarely within the jurisdiction of DFEH.
Background: California has an array of statutes that prohibit
discrimination based on certain enumerated "protected
characteristics" (e.g. sex, race, religion, sexual orientation,
etc.) in various spheres of social and political life. For
example, the Unruh Civil Rights Act prohibits discrimination
based on protected characteristics in business establishments.
FEHA prohibits discrimination in employment and housing. The
Government Code, commencing with Section 11135, prohibits
discrimination in government-operated and state-funded program
and services. Originally, these statutes prohibited
discrimination primarily on the basis of sex, race, color,
national origin, and religion. In more recent years, the list
of protected characteristics has expanded to include
discrimination based on mental or physical disability, medical
condition, genetic information, marital status, sexual
orientation, gender identity, citizenship, primary language, or
immigration status. In addition to the fact that the
anti-discrimination laws are spread across multiple statutes,
the provisions relating to discrimination in government-operated
and state-funded programs (Government Code Section 11135 et
seq.), requires every state agency that administers a
government-operated or state-funded program to develop its own
rules and regulations so that those programs are administered
consistent with state anti-discrimination law. According DFEH -
the sponsor - this measure will create an effective and
efficient mechanism for implementing the state's
anti-discrimination goals by consolidating rule-making and
enforcement authority within DFEH.
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Interactions of Different Anti-Discrimination Laws: In theory,
the Unruh Act, FEHA, and Government Section 11135 target
different forms of discrimination in different contexts:
business establishments, employment and housing, and government
programs and services. In reality, the lines are not always so
clearly drawn. For example, Section 11135 was added in 1977 in
order to prevent discrimination in state-funded programs and
activities. Most directly, Section 11135 is implicated where,
for example, a public welfare agency discriminates against a
person because of his or her religion, but it would also apply
to a private, non-profit entity that received a state grant that
discriminated against a program participant because of his or
her race. Another example might include a private college that
benefits from state assistance in the form Cal Grants and
discriminates against students based on sexual orientation. But
Section 11135 could apply to forms of discrimination that are
also prohibited under the Unruh Act or FEHA. For example, to
cite an example provided by DFEH, if a state agency contracted
with a private commercial vendor that discriminated against
employees or subcontractors on the basis of race or gender, the
employees could have a claim under FEHA; the subcontractor would
have claims under the Unruh Act; and the state could take action
against the contractor (such as cancelling the contract) under
Government Section 11135. The complexities of such interactions
and the mushiness of statutory boundaries illustrate, according
to the author and sponsor, the value of a centralized mechanism
for rule-making and enforcement over conduct that will not
always neatly fall under the jurisdiction of a single agency or
even implicate a single anti-discrimination statute.
Bill Does not Change Substantive Law or Create Any New Rights:
The author and sponsor point out that SB 1442 "does not create a
new right of action or expand existing rights." That is, the
purpose of this measure is simply to reorganize the statutory
framework and transfer portions of the Code of Regulations from
one jurisdiction to another, but the bill seeks to do that by
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keeping the substance of existing rights, remedies, and
regulations intact. The bill does change language in two
instances, but these are merely clarifications of existing law.
For example, some anti-discrimination statutes list "disability"
as one of the protected characteristics, while others list both
"mental disability" and "physical disability." Substantively
this does not make a difference, because "disability" has
generally been construed as a broader term that encompasses both
mental and physical disabilities. Indeed, subdivision (a) of
Government Code Section 11135 uses the term "disability" in its
list of protected characteristics, but a later subdivision in
the same section defines "disability" to mean "any mental or
physical disability, as defined in Section 12926." Similarly,
the bill changes the term "ethnic group identification" to
"ancestry" in one section, but this is not meant to entail a
substantive change but rather the use of the term that is used
in all of the other statutes. (One might argue that "ethnic
group identification" is more meaningful and current than
"ancestry," but, be that as it may, "ethnic group
identification" is used in only one section while "ancestry" is
used in all others. Indeed, there is an inherent vagueness in
all of these socially and historically constructed concepts, and
throughout the anti-discrimination statutes multiple terms are
used in a single section even though they overlap in practice
and have no clear meanings or boundaries between them; for
example, "race," "ethnicity," "color," "national origin," and
"ancestry" might mean virtually the same thing in one context,
but have different meanings and connotations in another
context.).
ARGUMENTS IN SUPPORT: According to the sponsor, DFEH, this
measure will "delete obsolete and redundant provisions from the
California Code and create an effective, centralized mechanism
for implementing laws prohibiting discrimination in state-funded
programs." DFEH notes that, under existing law, while DFEH is
the state agency with primary responsibility for enforcing
California's anti-discrimination and civil rights laws,
Government Code Section 1135 et seq. requires the Secretary of
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Health and Human Services to administer certain
anti-discrimination provisions and "requires nearly each state
department to adopt its own regulations implementing Section
1135." According to DFEH, this "structure is inefficient
because [those other agencies are] not otherwise charged with
civil rights enforcement and because departments are required to
create duplicative regulatory schemes to interpret their 11135
obligations." DFEH believes, however, that SB 1442 "creates a
logical and efficient mechanism for implementing the laws
prohibiting discrimination in state-funded programs by giving
[DFEH] authority to investigate, mediate and prosecute Section
11135 complaints in the same manner it handles other
discrimination claims."
CONCERNS AND ARGUMENTS IN OPPOSITION UNLESS AMENDED: Although
no group has taken an absolute or unqualified "oppose" position
on this bill, a number of groups have expressed concerns that
have caused them to take either a "support if amended" position
or "oppose unless amended" position. All of the groups share a
common concern with the fate of existing rules and regulations
during any transitionary period. For example Disability Rights
California and the Legal Aid Society-Employment Law Center both
generally support this bill, but only if amended to ensure that
no existing protections will be lost and to create "an orderly
process to transition from existing regulations to new ones."
Although the most recent amendment to this bill addressed this
issue, it did not, apparently, remove all concern. The bill, as
proposed to be amended today in this Committee, will make it
clear that, as of January 1, 2017, upon transfer of the
regulations from CHHSA and other state agencies to DFEH, the
transferred regulations shall be "deemed to be adopted" by the
Council. The Council could then, as it is empowered to do under
existing law, adopt additional regulations, or amend or repeal
the transferred and adopted regulations, in the manner provided
under existing law. This amendment will ensure that the
transferred regulations will be "deemed adopted" automatically
upon transfer, by operation of the statute, which should prevent
any gap in which no regulations are in effect. Any regulations
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that are not transferred to DFEH will remain in effect. That
is, this bill will not - indeed it cannot - delete anything from
the Code of Regulations. Only a state agency authorized by
statute can do that. It is unclear whether these amendments
will address this concern or change the position of the groups
that raised it.
The Center on Race, Poverty, & the Environment (CRPE) opposes
this bill unless amended to address the continuity issue, but it
also raises several additional concerns as well. CRPE's letter
primarily stresses the important role that Section 11135, in
conjunction with other civil rights and environmental statutes,
is "such a critical component in helping to achieve
environmental justice in our state." CPRE argues that "unlike
other areas of civil rights, such as employment and housing
discrimination, environmental justice has no backstop or
duplicative statutory authority upon which to rely for the
protections afforded by Government Code Section 11135.
Therefore, any roll-back of protections in [Section 11135] . . .
will have a direct and negative impact on communities of color
and the ability of environmental justice advocates to enforce
compliance with California's civil rights protections."
Although CRPE does not identify specifically what parts of
Section 11135 further the cause of environmental justice.
Rather, similar to concerns expressed by other groups, CRPE
fears that this bill will remove authority of some state
agencies, including Cal EPA, to implement Section 11135 in the
environmental justice context. CRPE apparently believes that
centralizing investigation and enforcement powers within DFEH
could weaken or undermine work being done by other agencies.
The crux of CRPE's concern seems to be that beneficial
regulations adopted by other agencies might not be subsequently
adopted by DFEH. It is not clear whether the recent amendments,
including the refinements to those amendments that the author
will take today, will be sufficient to remove CRPE's opposition.
Finally, CRPE also objects to changing "ethnic group
identification" to "ancestry" in Section 11135. CRPE argues
that "ethnic group identification" is a broader term that
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includes "ancestry," but that it also connotes other "racial,
cultural, and linguistic characteristics" that apparently could
be the basis of discrimination but that are not covered by
existing protected characteristics.
Proposed Author Amendments: In order to make it clear that
when regulations are transferred to DFEH, they will
automatically be "deemed adopted" by the Council of the DFEH,
the author will take the following amendments in this Committee:
- On page 9 beginning on line 37 amend sub-paragraph (A)
to read as follows:
(A) As of January 1, 2017, 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, and upon transfer shall be
deemed adopted by the council.
- On page 10 beginning on line 5 amend sub-paragraph (B)
to read as follows:
(B) The council shall, within existing resources, adopt
additional regulations, as necessary, and amend , or repeal, as
necessary , 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.
REGISTERED SUPPORT / OPPOSITION:
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Support
California Department of Fair Employment and Housing (sponsor)
California Health and Human Services Agency
Disability Rights California (if amended, to previous version)
Legal Aid Society - Employment Law Center (if amended, to
previous version)
Opposition
Center on Race, Poverty, & the Environment (unless amended, to
previous version)
Analysis Prepared by:Thomas Clark / JUD. / (916)
319-2334
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