BILL ANALYSIS                                                                                                                                                                                                    



                                                                    SB 1442


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          SENATE THIRD READING


          SB  
          1442 (Liu)


          As Amended  August 8, 2016


          Majority vote


          SENATE VOTE:  39-0


           ------------------------------------------------------------------ 
          |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,     |                    |








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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