BILL ANALYSIS Ó
SB 1442
Page 1
SENATE THIRD READING
SB
1442 (Liu)
As Amended August 8, 2016
Majority vote
SENATE VOTE: 39-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |20-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
| | |Chang, Daly, Eggman, | |
| | |Gallagher, Eduardo | |
| | |Garcia, Holden, | |
| | |Jones, Obernolte, | |
SB 1442
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| | |Quirk, Santiago, | |
| | |Wagner, Weber, Wood, | |
| | |Chau | |
| | | | |
| | | | |
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SUMMARY: Reorganizes, replaces, and relocates various
anti-discrimination statutes and moves the authority to
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.
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4)Clarifies, consistent with other statutes, that discrimination
based on a person's "disability" includes discrimination based
on either a mental or physical disability.
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.)
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4)Requires the Secretary of California Health and Human Services
(Secretary), with the advice and concurrence of the Council,
to establish standards for determining which persons are
protected by anti-discrimination 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: According to the Assembly Appropriation
committee, any additional costs to DFEH, for modifying
regulations and administering what would likely be a small
number of additional claims, would be minor and absorbable, and
would be offset to some extent by the efficiencies gained in
consolidating the specified responsibilities within DFEH.
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
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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
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. In order to ensure continuity
in the transfer of these regulations, the bill specifies that
upon transfer the regulations shall also be "deemed adopted" by
the Council.
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
keeping the substance of existing rights, remedies, and
regulations intact. Nor is the bill intended to change the law
regarding administrative exhaustion, which is not required under
Government Code Section 11135, but which generally is required
under FEHA. This bill, however, does change existing language
in one instance, but this is merely a clarification of existing
law. Specifically, 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
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encompasses both mental and physical disabilities. Indeed,
Government Code Section 11135(a) 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." This bill
will simply clarify this by using both terms in Section 11135.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN:
0003981