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  
                                                       
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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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