BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 1001 A
Assembly Member Villaraigosa B
As Amended May 28, 1999
Hearing Date: August 17, 1999 1
Government Code 0
DLM:jt 0
1
SUBJECT
Fair Employment and Housing Act: Sexual Orientation
DESCRIPTION
This bill would move the provisions prohibiting employment
discrimination on the basis of sexual orientation from the
Labor Code to the Fair Employment and Housing Act (FEHA).
The bill would also codify case law which prohibits housing
discrimination on the basis of sexual orientation.
BACKGROUND
Labor Code Section 1102.1 prohibits employment
discrimination based on actual or perceived sexual
orientation. Employers with five or fewer employees and
all non-profit organizations are exempt. The Department
of Industrial Relations, Division of Labor Standards
Enforcement investigates complaints arising under this
section or complaints can be filed as a civil action in
court. Claims must be filed within 30 days of the
alleged incident. Remedies available include cease and
desist orders, reinstatement, backpay and attorney's
fees.
The Department of Fair Employment and Housing (DFEH)
investigates and adjudicates complaints arising under the
Fair Employment and Housing Act (FEHA). Complaints must
be filed within one year of the alleged incident.
Remedies available for employment discrimination include
cease and desist orders, reinstatement, actual damages up
(more)
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to $50,000, affirmative or prospective relief, and an
administrative fine. If a complainant or respondent is
not satisfied with the administrative decision, or if
DFEH issues the complainant a "right-to-sue" letter, the
complainant can bring a civil action in court. The
complainant cannot file a civil action without first
exhausting FEHA's administrative remedies. (See Comment
3 for further comparison of Labor Code and FEHA remedies.
CHANGES TO EXISTING LAW
Existing law :
Prohibits employment discrimination based on actual or
perceived sexual
orientation under the Labor Code.
Prohibits through the Unruh Civil Rights Act, housing
discrimination based on sexual orientation, Hubert v.
Williams (1982) 133 Cal.App.3 Supp.1. Department of
Fair Housing and Employment (DFEH) investigates
complaints arising under this section under the rules
relating to housing.
This bill would:
Amend the Fair Employment and Housing Act (FEHA) to
include sexual orientation as a protected category
against discrimination.
Define "sexual orientation" as "heterosexuality,
homosexuality, and bisexuality."
Delete the prohibition on employment discrimination based
on sexual orientation from the Labor Code.
COMMENT
1. Stated need for legislation and support
Supporters argue that the differences between the Labor
Code and FEHA result in unequal protection against
employment discrimination for gay, lesbian, and bisexual
individuals. The differences they cite include the fact
that all nonprofit organizations are exempted from Labor
Code Section 1102.1 and only nonprofit religious
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organizations are exempted from FEHA. Also, there is the
30-day (Labor Code) versus one-year (FEHA) difference in
the statutory period to file discrimination claims.
Supporters argue that 30 days is too short a time in
which to identify and act on discrimination, especially
since the complainant may not immediately realize that
discrimination has occurred. Also, in the case of
ongoing violations, the 30-day deadline may mean that
some violations cannot be considered as part of an
overall case.
Supporters also point to the extensive case law and
established discrimination investigation guidelines for
FEHA whereas, they claim, little such history exists
interpreting Labor Code Section 1102.1. Also DFEH
investigators are extensively trained in discrimination
cases while Department of Industrial Relations (DIR)
investigators, on the other hand, primarily handle
whistleblowing cases, wage disputes, and health and
safety complaints. As a result they are ill suited to
handle this type of claim, they say. In addition,
supporters state that employees and attorneys are not as
aware of the Labor Code as they are of FEHA. For
example, because it is not included in FEHA, sexual
orientation is not listed as a protected category on the
posters which employers are required to post in
workplaces advising employees of their rights.
Supporters also believe that, by eliminating the dual
anti-discrimination statutes, this bill will prove less
onerous to employers who might be confused by the
different requirements contained in current law. The
bill will also reduce confusion for employees subject to
more than one form of discrimination, e.g. sexual
orientation and race. Currently, these employees must
file separate complaints with DIR and DFEH, subject to
different deadlines, procedures, and remedies.
In response to concerns about increased litigation if
this bill passes, supporters point out that FEHA is
designed to decrease litigation by requiring that DFEH
investigate all complaints before a complainant can file
a court action. Due to this requirement, it is actually
easier for an employee to file a civil action under
current law than under FEHA. Regardless of the ultimate
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impact of the bill on litigation, however, small
businesses and religious organizations will not be
affected because neither the Labor Code nor FEHA applies
to small businesses or religious organizations.
Finally, supporters say this is a matter of equity. It
is unfair to single out a group of people for different
treatment in employment protection on the basis of
conduct which has nothing to do with work. If sexual
orientation is a sufficient basis to discriminate against
a person, it is a sufficient basis to prohibit
discrimination. This bill, they say, offers no special
treatment; it merely provides a remedy against illegal
employment practices.
2. Opposition
This Committee is in receipt of many letters from
individuals who oppose the bill based upon asserted
religious objections. One writer typifies the objection
when he states, "Our nation, state, country and community
are being assaulted by those who want their identity to
be this chosen behavior and to have it considered on par
with race, ethnicity, gender or alienage for minority
status privileges. They have the freedom to behave as
they choose, but they do not have the right to inhibit
the freedoms of others who consider such behavior
immoral."
The Committee on Moral Concerns adds that, "Everyone is
entitled to equal protection under the law. However,
gays, lesbians, and bisexuals should not be granted more
than equal protection?There is no need for this bill.
Gays and lesbians are not suffering from unemployment and
poverty, and they never have suffered the way other
minorities have. There are no gay ghettos, and there
never have been."
The Seventh-Day Adventist Church State Council opposes
the bill, not because of what the bill would do, but out
of a fear of future changes to the law. "As Christians,
we believe that all should be treated with kindness and
respect. Indeed, our faith condemns the hostility shown
to gays by some of those who oppose gay rights. However,
we are compelled to oppose AB 1001 because (it) poses a
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grave threat to religious freedom?No doubt you will
recall that during the last session, AB 310 was proposed
with a provision to eliminate FEHA's religious employer
exemption. Further legislative efforts to remove the
religious employer exemption are expected."
3. Comparison of Labor Code and Government Code remedies
and procedures
For housing discrimination, the DFEH can order the
landlord to cease and desist and to sell or rent the
accommodation to the complainant, assess actual damages,
and assess punitive damages of $10,000 for a first
offense, $25,000 for a second, and $50,000 for three or
more. In addition, the complainant can chose to file a
civil action in lieu of or during the DFEH administrative
process. Unlike employment discrimination cases, there
is no requirement that a complainant exhaust the
administrative remedies before filing a civil action.
In addition, DFEH investigates complaints arising under
the Unruh Civil Rights Act. That Act prohibits housing
discrimination based on sexual orientation. See Hubert
v. Williams (1982) 133 Cal.App.3d Supp.1. In addition,
under the Unruh Act, the Attorney General, district
attorneys, city attorneys, or any complainant can bring a
civil action, with the following remedies allowed: actual
damages, punitive damages in an amount equal to three
times the actual damages or $1,000, whichever is greater,
and attorney's fees.
4. Legislative history of present dichotomy
The topic of employment and housing protection on the
basis of sexual orientation has been the subject of
numerous bills in the recent past. AB 101 (Friedman) of
1991, would have added sexual orientation to the list of
protected employment categories in FEHA. It was vetoed
by then-Governor Wilson. In response to concerns raised
in the veto message, Mr. Friedman authored AB 2601, Ch.
915, Stats. of 1992, which codified case law (Sokora v.
Dayton Hudson Corp., (1991) 235 Cal. App. 3d 654) by
creating Labor Code Section 1102.1. However, supporters
of gay rights continued to claim that the Labor Code
provides insufficient protection. In 1998 AB 257
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(Villaraigosa), a bill substantially similar to AB 1001,
passed only to again be vetoed by then-Governor Wilson,
based upon his preference for the remedies provided under
the Labor Code as created by AB 2601 (Friedman).
5. Prior related legislation and veto message
AB 257 (Villaraigosa), 1998, was substantially similar to
AB 1001.
AB 257 would also have moved the provisions prohibiting
employment discrimination on the basis of sexual
orientation from the Labor Code to the Fair Employment
and Housing Act (FEHA). Then-Governor Wilson vetoed the
bill saying: "I signed AB 2601, (Friedman, Ch. 15,
Stats. of 1992). That measure enacted the Labor Code
provision which this bill repeals. AB 2601 was a
carefully crafted measure which provided the necessary
resolution for employment related discrimination based on
sexual or perceived sexual orientation?.Discrimination in
housing on the grounds of sexual orientation is already
prohibited in California under the Unruh Act and enforced
by
the Department of Fair Employment and Housing or in Civil
Court. Since adequate protections already exist for
those who suffer discrimination in housing and the
workplace on the basis of sexual orientation, this bill
is unnecessary."
Support: AIDS Healthcare Foundation; AIDS Project East
Bay; AIDS Project Los Angeles; Alameda County Board
of Supervisors; Alameda Democratic Club; Alice B.
Toklas Lesbian & Gay Democratic Club; American
Association for Single People; American Civil
Liberties Union; Asian Pacific Gays and Friends;
California Alliance for Pride and Equality;
California Apartment Association; California
Conference Board of the Amalgamated Transit Union;
California Conference of Machinists; California
Labor Federation, AFL-CIO; California National
Organization for Women; California Nurses
Association; California Rural Legal Assistance
Foundation; California Teachers Association; Central
California Alliance; City of Berkeley Rent
Stabilization Board; City of Santa Monica Rent
Control Board; Consumer Attorneys of California;
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East Bay Municipal Utility District; Elections
Committee of the County of Orange; Engineers and
Scientists of California; Fair Employment and
Housing Commission; Friends Committee on
Legislation; Gay & Lesbian Assoc. of Retired
Persons; Gay & Lesbian Community Center of Ventura;
Hotel Employees, Restaurant Employees International
Union; Human Rights Commission, City and County of
San Francisco; Jewish Federation of Greater Los
Angeles; Lambda Community Fund; Lesbian and Gay Bar
Association; Los Angeles Chapter of PFLAG; Los
Angeles Gay and Lesbian Center; National Center for
Lesbian Rights; ; National Organization For Women;
Office & Professional Employees, Local #3, AFL-CIO;
Pride at Work , National Organization for LGBT
Labor; Public Law Center; Reform Party; Region 8
States Council of the United Food & Commercial
Workers; Santa Barbara Stonewall Democratic Club;
San Jose/Peninsula Chapter of PFLAG; South Orange
County Chapter of PFLAG; Southern California Women
for Understanding; Ventura County Chapter of PFLAG;
Western Center on Law and Poverty, Inc.; Wildcat
International; Women Lawyers Association of Los
Angeles; Attorney Carol Anderson; Attorney Michael
Fiumara; Attorney Margo Dockendorf; Cliff Anchor,
Past Commander, Am Legion Post #448 SF; James Mangia
- Nat. Secretary, Reform Party of America; John
Klehs, Chair, State Board of Equalization; Author
Patricia Nell Warren; Alan L. Zimmerman, Regional
Director, Reg. 13, CA Democratic Party; California
Church Impact; Reverend James C. Lovette-Black;
Reverend Canon Craig B. Chapman, All Saints;
Reverend Lawrence A. Reh, First Light Ministries;
Father Thomas M. Nylund; numerous individuals
Opposition: Committee on Moral Concerns; Seventh-Day
Adventist Church Council; numerous individuals
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: AB 257 (Villaraigosa), vetoed
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Prior Vote: Assembly Committee on Labor and Employment
6-3;
Assembly Floor 42-36
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