BILL ANALYSIS
AB 1670
Page 1
Date of Hearing: May 11, 1999
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 1670 (Judiciary Committee) - As Amended: May 6, 1999
SUBJECT : DISCRIMINATION: CALIFORNIA CIVIL RIGHTS AMENDMENTS
OF 1999
KEY ISSUE : SHOULD VARIOUS CIVIL RIGHTS STATUTES BE AMENDED TO
STRENGTHEN DISCRIMINATION PROTECTIONS OR CLARIFY AMBIGUITIES IN
THE LAW?
SUMMARY : Strengthens and clarifies various civil rights
protections afforded by the Fair Employment and Housing Act
(FEHA) and other civil rights statutes. Specifically, this
bill , among other things:
1)Increases the amount of damages and administrative fines that
may be awarded by the Fair Employment and Housing Commission
in employment discrimination cases from $50,000 to $150,000,
and permits a court to award expert witness fees to a
prevailing party in FEHA cases.
2)Extends harassment protections under FEHA to contract workers.
3)Requires employers to provide reasonable accommodations to
pregnant employees, clarifies that genetic testing of
employees is prohibited, and expands the class of employers
subject to FEHA's prohibition against discrimination on the
basis of mental disability.
4)Clarifies that protections against housing and employment
discrimination cover discrimination based upon a victim's
perceived membership in a protected class, and clarifies that
FEHA's protections against housing and employment
discrimination cover the right to freely associate.
EXISTING LAW :
1)Prohibits business establishments from discriminating against,
boycotting or blacklisting, or refusing to buy from, sell to,
or trade with, any person because of the race, creed,
religion, color, national origin, sex, or disability of that
person or the person's partners, members, stockholders,
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directors, officers, managers, superintendents, agents,
employees, business associates, suppliers, or customers.
(Civil Code section 51.5, the Unruh Civil Rights Act.)
2)Does not prohibit business establishments from discriminating
against, boycotting or blacklisting, or refusing to buy from,
sell to, or trade with any person because of their perceived
membership in a class protected under the Unruh Civil Rights
Act; nor does it include the "refusal to contract with
another" as one of the prohibited types of discrimination
protected under the Act. (Civil Code section 51.5.)
3)Provides that the Department of Fair Employment and Housing
(the Department) shall respond to complaints of discriminatory
practices by employers and owners of housing accommodations by
undertaking investigations and by carrying out appropriate
enforcement measures. (Government Code section 12940 et .
seq ., FEHA. All further references are to this code unless
otherwise noted.)
4)Provides that the combined amount of damages and
administrative fines that may be awarded by the Fair
Employment and Housing Commission in employment discrimination
cases is capped at $50,000. (Section 12970 (a)(3).)
However there is no cap at all on the amount of damages that
may be awarded by the Commission in housing discrimination
cases. (Section 12987(a).)
5)Provides, in federal actions, that a prevailing party may
recover an award "of reasonable attorney's fees (including
expert witness fees) as part of recoverable costs." (Civil
Rights Act, Title 42 U.S.C., 2000(e)(5)(k).) However, expert
witness fees are not awarded in state FEHA cases as an item of
costs to prevailing parties. ( Davis v. KGO (1998) 17 Cal.4th
436.)
6)Protects employees, under FEHA, but not independent
contractors, from discriminatory employment practices.
(Section 12940.)
7)Makes it an unlawful employment practice for employers,
including employer agents, among others, to harass an employee
or applicant on the basis of various protected
characteristics. (Section 12940.)
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8)Provides that harassment of an employee or applicant by anyone
other than an employer, agent or supervisor is unlawful only
if the employer, or any agents or supervisors, knows or should
have known of the harassment and fails to take immediate and
appropriate corrective action. (Section 12940.) However FEHA
does not define the term "supervisor" for purposes of
liability under the Act.
9)Makes it an unlawful employment practice for an employer to
refuse to transfer a pregnant female employee, upon her
request, to a less strenuous or hazardous position for the
duration of her pregnancy. (Section 12945(a),(e).)
10)Provides that employers of five or more employees are
generally subject to FEHA's discrimination prohibitions.
(Section 12926(d).) However, only employers of fifteen or
more employees are subject to FEHA's prohibition against
discrimination on the basis of mental disability. (Section
12926(d)(2).)
11)Declares as a civil right the opportunity to seek, obtain,
and hold employment without discrimination on specified bases.
(Section 12921.) However FEHA does not expressly state that
its protections against housing and employment discrimination
cover associational rights. (Section 12940 et seq .)
12)Does not expressly state that the prohibition against
discrimination by agencies or entities receiving state funds
is enforceable through a civil action for equitable relief.
(Section 11139.)
13)Authorizes the court in actions brought under FEHA to grant
any relief normally available to courts in civil actions. In
addition, the court may order any other relief in FEHA cases
that, "in the judgment of the court, will effectuate" the
purpose of the Act. (Section 12965 (c)(3).)
FISCAL EFFECT : Unknown
COMMENTS : This bill contains many of the provisions that
comprised the Chairperson's AB 310 of last year. That
comprehensive civil rights legislation was passed by the
Legislature and vetoed by then-Governor Wilson due to concerns
about the bill's harassment protections for contract workers.
Like
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AB 310, this bill seeks to strengthen and clarify a host of key
civil rights protections contained in FEHA and other civil
rights statutes. The proposed changes continue to incorporate
recommendations made by a broad coalition of the state's
housing, labor, disability, civil rights, and employment law
experts and organizations. Many of the proposals are taken from
existing federal law or regulations in the areas of housing and
employment, and, as noted, many have already been approved by
the Legislature in prior sessions.
It is the Committee's goal with this legislation to provide
California employers with clearer guidance about the
Legislature's intent regarding particular provisions of state
discrimination laws. It also seeks to better harmonize federal
and state employment laws in these areas to facilitate the
"vigorous enforcement" of our anti-discrimination laws to which
the Legislature has long been committed.
Following are the Committee's explanations of, and rationales
for, the principal provisions of the legislation:
Expanded Damages Under FEHA : The bill increases the amount of
damages and administrative fines that may be awarded by the Fair
Employment and Housing Commission (the Commission) in employment
discrimination cases from $50,000 to $150,000. As noted above,
there is already no cap at all on the amount of damages that may
be awarded by the Commission in housing discrimination cases.
(Section 12987(a).)
This proposed increase of the damages and fines cap in
employment cases was approved by the Legislature in 1991 in SB
827 (Bergeson-R) which would have given the Commission the
statutory authority to assess actual damages up to $150,000.
However, then-Governor Wilson vetoed that legislation. This
provision was approved again by the Assembly last year in AB 310
(Kuehl), and a broader provision (eliminating the cap entirely)
was approved by the Senate last year in SB 1251 (Calderon).
The goal of increasing the amount of damages available under
FEHA is to provide the Commission with the ability to more
reasonably compensate victims of employment discrimination or
harassment. Lawsuits involving employment claims have been
steadily on the rise. Some estimates put the increase in
employment discrimination cases at greater than 2000% over the
past twenty years. (See John J. Donohue III and Peter
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Siegelman, The Changing Nature of Employment Discrimination
Litigation , 43 Stan. L. Rev. 983 (1991).) A large portion of
these cases involve allegations of discrimination or harassment,
or both.
It is hoped that this augmentation in available damages that may
be awarded by the Commission under FEHA will make resolution of
discrimination complaints via the administrative process rather
than court more attractive to plaintiffs. By raising the cap on
damage awards in employment discrimination cases, the Committee
hopes to encourage more plaintiffs to choose the less
cumbersome, and less expensive, option of administrative action
over the more lengthy and costly court option.
To assist in the evaluation of the merits of this important
provision, as well as provide some general background on FEHA, a
brief recap of the history behind FEHA's treatment of
compensatory damages follows.
FEHA : California's analog to the federal Civil Rights Act of
1964 (42 U.S.C. 2000e to 2000e-17 (1994), otherwise known as
Title VII, is the Fair Employment and Housing Act (Government
Code section 12940 et seq .), called FEHA. This Act provides
similar remedial protection from employment discrimination as
Title VII. As with Title VII, the dual purposes of eliminating
employment discrimination and compensating victims of
discrimination led to the enactment of FEHA. ( County of Alameda
v. FEHC (1984) 200 Cal.Rptr. 381.) FEHA is also similar to
Title VII in that it is an unlawful employment practice for an
employer to discriminate on the basis of a detailed list of
protected categories.
However, FEHA also fills significant gaps that over time became
apparent under the federal law. For example, the California law
prohibits discrimination on the basis of physical handicap by
most private as well as public employers. Moreover, the scope
of damages, especially for private litigants, is considerably
broader under FEHA than the federal law. As with Title VII,
enforcement of FEHA's discrimination protections may be pursued
in two different arenas: 1) through the administrative process
before the Fair Employment and Housing Commission (the
Commission), or 2) through a civil suit filed in superior court.
No Cap on FEHA Damages for Housing Discrimination Cases . In
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civil court, there is no limit upon the damages a plaintiff may
seek for employment or housing discrimination claims. However,
in the administrative process provided under FEHA there
currently is a $50,000 cap on the actual damages and
administrative fines the Commission may award for employment
discrimination claims. Importantly for purposes of this
legislation (which raises the cap on actual damages in
employment cases), there is no similar cap on actual damages in
housing discrimination cases under FEHA . In 1992, then-Governor
Wilson signed SB 1234 (Ch. 182, Stats. 1992) completely
eliminating any cap on actual damages in housing claims brought
under FEHA. (Section 12987(a)(4).) This action reflected
recognition by the Legislature and Governor of the seriousness
of housing discrimination. There is thus precedent for
considering similar, though less ambitious, legislative action
vis-a-vis employment discrimination claims.
Initial Efforts to Raise the $50,000 Cap: During the 1980s, the
Commission awarded compensatory damages without any limiting
cap. However, this practice was summarily halted by the
California Supreme Court in Peralta v. FEHC (52 Cal.3d 1379) in
1990, when the Court held that the Commission lacked express
legislative authority to award compensatory damages in
employment discrimination cases. (In an earlier case, Dyna-Med
v. FEHC (1987) 43 Cal.3d 1379, the Court determined under a
similar rationale that the Commission lacked the authority to
award punitive damages.) In 1991, then-Governor Wilson vetoed
legislation, SB 827 (Bergeson-R) which, as noted above, would
have similarly given the Commission the statutory authority
provided in this legislation to assess actual damages up to
$150,000. That same year, the Court again ruled that the
Commission lacked the authority to award compensatory damages,
this time in a housing discrimination case. ( Walnut Creek Manor
v. FEHC (1991) 54 Cal.3d 245.)
In response to this ruling, the Legislature passed and the
Governor signed AB 311 (Moore), Ch. 911, Stats. 1992, to provide
the Commission constitutional authority to award compensatory
damages under FEHA, capped at $50,000 . However, even as
then-Governor Wilson signed AB 311, proponents of the reform
expressed deep concern that the $50,000 cap would be
insufficient to serve the "make whole" purpose of FEHA.
Therefore the Legislature required, by the same statute, that
the Commission report back by January 1, 1995, to the
Legislature on the "adequacy of the amount available to
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compensate victims of discrimination and administrative fines"
permitted by AB 311.
The 1995 Commission Report on FEHA Damages . The 1995 Commission
report provided important support for at least raising the
$50,000 cap on damages and administrative fines by stating that:
The [current] $50,00 ceiling may ... have the
unintended effect of encouraging complainants to file
civil actions in the courts rather than making use of
the administrative forum. A primary reason for
authorizing the Commission to award emotional distress
damages and administrative fines was to encourage FEHA
litigants to remain in the administrative forum, which
is generally more timely and less costly to parties
than court litigation. Because the $50,000 ceiling is
relatively low compared to the five-, six-, and even
seven-figure awards sometimes ordered in FEHA court
suits, complainants may be inclined to take their cases
to court rather than stay in the administrative forum.
Thus, it may be appropriate to consider raising the
ceiling.
This legislation incorporates the Commission's four-year-old
suggestion, and Senator Bergeson's eight-year old effort, to
raise the cap on available damages and fines from $50,000 to
$150,000. According to the Committee, this amendment to FEHA
will permit the Commission to more adequately "make whole"
victims of employment discrimination, while retaining a more
reasonable cap on available damages in the administrative
context.
Expert Witness Fees : In addition to this change in available
damages under FEHA, the bill also permits the court to award
expert witness fees to a prevailing party. As noted above, the
federal counterpart to FEHA is Title VII, which expressly
permits the award of expert witness fees as part of the
reimbursement of costs available to a prevailing party.
(Section 2000e-5(k) of Title VII.) However, expert witness fees
are not presently included as a part of costs. In addition, a
recent California Supreme Court decision ( Davis vs. KGO (1998)
17 Cal. 4th 436) held that FEHA did not explicitly authorize
recovery of expert witness fees.
This bill therefore amends FEHA to provide, like its federal
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counterpart, that expert witness fees may be awarded to the
prevailing party. This approach is also consistent with the
approach FEHA already takes regarding attorney's fees and court
costs; the Act permits a court in any civil action brought under
FEHA to award, with certain exceptions, the prevailing party
reasonable attorney's fees and costs. (Government Code sections
12965 and 12989.2.)
New Harassment Protections for Contract Workers : In addition to
addressing the damages and costs available under FEHA, this
legislation expands the reach of the state's harassment (but not
discrimination) protections by including contract workers within
FEHA's coverage. Currently, FEHA applies to all California
employees and applicants for employment, including persons
compensated by temporary service agencies. (Government Code
section 12940(a).) For purposes of the Act, "employee" is
defined as "Any individual under the direction and control of an
employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written?" (2 Cal.
Code Reg. Section 7286(h).)
However, the Act expressly excludes from its reach independent
contractors, as defined in Labor Code Section 3353, governing
workers' compensation. (2 Cal. Code Reg. Section 7286.5(b)(1).)
Under this provision, an "independent contractor" is any person
who renders service for compensation, for a specified service or
product. The contractor is under the control of a principal
regarding only the result of the work, and not regarding the
means by which the result is accomplished. (Labor Code 3353.)
This view, that FEHA's harassment protections do not currently
apply to independent contractors, was recently reiterated by the
court of appeal in Fischer v. San Pedro Peninsula Hosp. (1989)
214 Cal.App.3d 590, 608-609 n.6.) The view is also consistent
with the decision by the court of appeal in Sistare-Meyer v.
YMCA (1997) 58 Cal.App.4th 10 (review denied January 21, 1998),
where the court held that people who work as independent
contractors do not have the same rights as regular employees and
cannot sue for wrongful termination in violation of public
policy. This bill would therefore extend FEHA's harassment
protections to independent contractors.
In addition, there already is important precedent in California
law for protecting independent contractors from harassment.
Civil Code section 51.9 broadly protects non-employees from
sexual harassment, which may include contract workers, whenever
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"there is a business, service, or professional relationship
between the plaintiff and defendant" and the defendant sexually
harasses the plaintiff. (Civil Code section 51.9 (a)(1).)
This bill therefore amends FEHA, consistent with Civil Code
section 51.9, to add individuals in California who are "under
the control of a principal regarding only the result of [their]
work, and not regarding the means by which [their work] is
accomplished." This change is intended to provide needed
protections for the ever-growing numbers of workers who are
hired as independent contractors rather than employees, and who
currently work unprotected against harassment simply by virtue
of the contractual nature of their work and their lesser cost to
the businesses who hire them.
Clarification of the Term "Supervisor" for Purposes of
Harassment : In addition to expanding the types of workers who
are protected under FEHA's harassment provisions, the bill takes
the important step of clarifying who are "supervisors" for
purposes of the Act. Under FEHA, harassment of an employee or
applicant by anyone other than an employer, agent or supervisor
"is unlawful only if the employer, or its agents or supervisors,
knows or should have known of the harassment and fails to take
immediate and appropriate corrective action." (Government Code
section 12940.)
To address the lack of a definition of "supervisor" in FEHA,
this bill employs the reasonable definition used in the Labor
Code in the Agricultural Labor Relations Act. That statute
defines the term "supervisor" as:
Any individual having the authority, in the interest
of the employer, to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or
discipline other employees, or the responsibility to
direct them, or to adjust their grievances, or
effectively to recommend that action, if in connection
with the foregoing, the exercise of that authority is
not of a merely routine or clerical nature, but
requires the use of independent judgment. (Labor Code
section 1140.4(j).)
This common sense definition should help clarify for employers
and employees alike, as well as for the courts, those
individuals who are acting with supervisorial authority for
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purposes of the Fair Employment and Housing Act.
Reasonable Accommodations for Pregnant Employees : This bill
also seeks to clarify and strengthen employer responsibilities
for accommodating pregnant employees. The measure requires
employers to provide reasonable and measured accommodations to
pregnant employees not currently specified in FEHA. Currently,
FEHA excuses employers from reasonable accommodation of pregnant
employees if accommodation would impose an undue hardship.
(Government Code section 12940(k).) Specifically, the Act
defines "undue hardship" as:
An action requiring significant difficulty or expense,
when considered in light of the following factors:
(1) the nature and cost of the accommodation needed,
(2) the overall financial resources of the facilities
involved in the provision of the reasonable
accommodations, the number of persons employed at the
facility, and the effect on expenses and resources or
the impact otherwise of these accommodations upon the
operation of the facility, (3) the overall financial
resources of the covered entity, the overall size of
the business of a covered entity with respect to the
number of employees, and the number, type, and
location of its facilities, (4) the type of
operations, including the composition, structure, and
functions of the work force of the entity, and (5) the
geographic separateness, administrative, or fiscal
relationship of the facility or facilities.
(Government Code section 12926(p).)
FEHA currently addresses pregnancy accommodation solely as the
more burdensome duty to reasonably accommodate a pregnant
employee by transferring her to less strenuous or hazardous
duties for the duration of the disability so long as the
employee asks. (Government Code section 12945(c)(2).)
(California employers are not required, however, to meet the
transfer requirements of FEHA by creating additional employment
for pregnant employees that would not otherwise have been
created, nor by discharging or transferring other employees with
more seniority, or promoting other employees who are not
qualified to "perform the job". ( Id .))
Unfortunately, FEHA does not yet expressly permit less costly,
and often more desirable and appropriate, accommodations for
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pregnant employees that fall short of job transfer. The
proposed amendment to FEHA regarding pregnancy is intended to
permit employers to allow pregnant employees to remain in their
current positions for longer time periods without the need for
transfer, while assuring that less costly and disruptive steps
(such as simply permitting more frequent restroom breaks or rest
periods) are taken for pregnant employees who do not want or
need to be transferred from their current positions. Under the
proposed amendment, the Fair Employment and Housing Commission
will have the responsibility of adopting regulations to assist
employers in determining appropriate types of accommodations for
pregnant employees no longer limited to job transfer.
New Housing Discrimination Protections : This bill also
clarifies that it is an unlawful housing practice for a housing
owner to harass a tenant or prospective tenant on any of the
bases protected under FEHA. This amendment is consistent with a
recent state court of appeal decision, Brown v Smith (1997) 55
Cal.App. 4th 767, where the court held that while the housing
side of FEHA does not mention the word "harassment", it is a
variety of sex discrimination and therefore subject to the
protections of FEHA. ( Id . at 782.) In Brown , a tenant was
subject to severe instances of sexual harassment by her
landlord, who repeatedly pressured her for sexual relations in
exchange for favorable rent. The appellate court clarified that
even though FEHA does not expressly mention harassment in its
housing discrimination proscriptions, the Act covers it as a
form of prohibited discrimination. This bill eliminates the
current statutory ambiguity noted by the court and adds the term
"harassment" to that part of the Act. The bill also clarifies
that the opportunity to seek, obtain, and hold housing free from
discrimination is a civil right of equal import as that right
already expressed regarding discrimination-free employment.
Prohibition on Genetic Testing : This legislation also clarifies
that genetic testing is prohibited under FEHA. Current law,
pursuant to legislation last year by Senator Johnston, SB 654
(Stats. 1998, Ch. 99), already prohibits discrimination on the
basis of genetic characteristics. That provision expressly
prohibits under FEHA employment discrimination against healthy
individuals with a genetic predisposition for disease. However,
it does not expressly state that employers may not obtain
genetic information from employees or job applicants through
genetic testing, and there is no statutory protection for
employees whose employers conduct genetic testing at the
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workplace.
Last year, the American Civil Liberties Union (ACLU) submitted
testimony to Congress on the growing need to protect the privacy
of genetic information. The organization noted that it has
already encountered the use of genetic information as the basis
for discrimination both in employment settings and in the health
insurance industry. It stated that in a 1996 Georgetown
University study of 332 families belonging to genetic disease
support groups, 22% of the respondents stated that they had
knowingly been refused health insurance and 13% stated that they
had knowingly been terminated from their jobs because of the
perceived risks attributed to their genetic status. (Testimony
Presented to the Senate Labor and Human Resources Committee, May
21, 1998, on file in the Judiciary Committee).
The ACLU also collected data about the growth of genetic testing
in the workplace. It noted that the U.S. Department of Labor
has found that the genetic testing in the workplace prohibited
in this legislation is on the rise nationwide. In 1982 a
federal government survey found that approximately 1.6% of
surveyed companies -- more than 1,500 U.S. companies -- were
using genetic testing for employment purposes. In a similar
survey conducted by the American Management Association in 1997,
that figure had risen to 6-10% of responding employers (well
over 6,000 companies). Additionally, the Council for
Responsible Genetics has documented hundreds of cases where
healthy individuals have suffered insurance and workplace
discrimination on the basis of genetic information.
Current statutory protections in the nation's discrimination
laws are inadequate to prevent genetic discrimination. Over
half of the states in this country still do not have any
statutory protections against genetic discrimination. Even
among those that do, such protections are not comprehensive;
some states prohibit discrimination only in health insurance or
in the workplace, or only for specific genetic traits. Federal
protection is also limited. The most important such law
concerning genetic discrimination is the Americans with
Disabilities Act (ADA). Although the ADA prohibits employers
from discriminating against those with "physical or mental
impairments which substantially limit a major life activity" (or
those that have a record of or are regarded as having such an
impairment), so long as their condition does not make them
incapable of performing their job, it does not protect the
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privacy of employees, and does not prevent employers from
obtaining genetic information; it only prevents them from using
the information.
The Committee firmly believes that employment decisions should
be made on the basis of an individual's ability to perform the
job, not on the basis of private genetic information or
generalizations about the groups to which the individual may
belong. This bill therefore clarifies that genetic testing of
employees and job applicants is prohibited under FEHA.
Conformity of Mental Disability Provisions With Physical
Disability Standards : The bill eliminates the current
discrepancy in FEHA between the Act's treatment of physical and
mental disabilities. It provides that employers of five or more
employees will now be subject to the Act's prohibition of
discrimination on the basis of mental disabilities, as is
already the case with respect to physical disabilities.
Currently, FEHA prohibits employment discrimination against
individuals with physical disabilities, mental disabilities, or
medical conditions. "Mental disability" is defined in the Act
as any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities. (Section
12926(k).) California courts have split over whether a mental
disability for FEHA purposes requires that the mental disability
substantially limit a "major life activity", as required by the
ADA. Importantly for the purposes of this bill, only private
employers of 25 or more employees, the State of California, and
its municipalities and political subdivisions were subject to
FEHA's provisions relating to mental disability until July 26,
1994. (Section 12940(l)(1).) Since then, private employers of
15 or more employees have been subject to liability for
discrimination on the basis of mental disability. (Section
12926(d)(2), 12940(1)(2).)
The Committee believes this change is needed in FEHA because
despite the need for the same protection afforded those with
physical disabilities, FEHA's current employer size requirement
means that qualified individuals with psychiatric disabilities
who work for smaller employers -- those with five to fourteen
employees - effectively have no legal recourse against
disability-based termination, harassment or demotion. Further,
qualified individuals with psychiatric disabilities have no
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access to basic accommodations such as time off for therapy, a
leave of absence to address a health care crisis, a quieter work
space, or periodic breaks to take medications.
The Committee is aware of the argument used when this provision
was first adopted that asserted smaller employers do not have
the resources to accommodate people with psychiatric conditions.
Such concerns were the express basis for delaying coverage of
working people with mental health disabilities until a study was
completed by the Legislature by 1996. ("This study shall
provide a basis for a recommendation ... concerning whether the
hardships imposed upon businesses outweigh the benefits to
persons with disabilities when the requirements of Title I of
the [ADA] are extended to California employers of 5 to 14,
inclusive, employees ... to include people with mental
disabilities. . .." Section 12940.3.)
Although the study was apparently never completed by the
Legislature, there have been other studies which analyze the
costs of compliance with ADA requirements. According to the
most comprehensive of these, the average cost of an
accommodation for any disability is $45. Moreover,
accommodations for individuals with mental disabilities are,
according to this study, even more cost-effective. (See Peter
David Blanck, Communicating the Americans with Disabilities Act,
Transcending Compliance: 1996 Follow-up Report on Sears, Roebuck
and Co. (Iowa City, Iowa, 1996), 38-41, 60, noting that
successful and low-cost accommodations made to employees with
psychiatric disabilities include shorter shifts, more consistent
job duties, access to private work space, education of the
supervisor, and flexible scheduling. Report on file with the
Committee.)
In support of the merits of this amendment to FEHA, the
Committee also notes that the Act already provides flexibility
for employers depending upon their size and resources. As noted
above, the "undue hardship" defense available to employers
permits consideration of various factors, including "the number
of persons employed at the facility," and "the overall financial
resources of the facility" when determining the accommodation
requirements of the Act. (Section 12926(p)(2).) In other
words, if a particular accommodation were unduly costly or
disruptive for a smaller employer, FEHA would not require the
employer to undertake the accommodation. However, the objective
of requiring equal protections for physical and mental
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disabilities would, under the proposed amendments in the bill,
appropriately remain.
Clarification About "Perceived Characteristics" and
Discrimination Based Upon One's "Association :" The bill
clarifies that FEHA's protections against housing and employment
discrimination, and Civil Code Section 51.5's protections
against discrimination in boycotting, buying, selling, and
trading, also cover discrimination based upon a victim's
perceived membership in a particular protected class. It also
amends Civil Code Section 51.5 to include the "refusal to
contract with" as part of the statute's discrimination
protections, and grants the Department of Fair Employment and
Housing and the Fair Employment and Housing Commission
jurisdiction over cases involving claimed violations of Section
51.5 of the Unruh Civil Rights Act. In addition, the bill
clarifies that FEHA's protections against housing and employment
discrimination cover associational rights as well, i.e.,
discrimination based upon perceptions about who one may be
associating with will now be protected under the Act. Thus, for
example, discrimination involving the improper firing of an
African-American woman because she was dating a white man, or
discrimination against a prospective renter because his friends
are of a different racial background, appropriately would be
brought within FEHA's protective umbrella.
Civil Action Available Against Those Receiving Taxpayer Funds :
The legislation also clarifies that the prohibition against
discrimination by agencies or entities receiving state funds is
enforceable through a civil action for equitable relief. Under
current law (subdivision (a) of Government Code section 11135),
"No person in the State of California shall, on the basis of
ethnic group identification, religion, age, sex, color, or
disability, be unlawfully denied the benefits of, or be
unlawfully subjected to discrimination under, any program or
activity that is funded directly by the state or receives any
financial assistance from the state." Thus under this
provision, entities undertaking programs or activities that are
funded directly by the state, and entities that receive
financial assistance from the state, may not unlawfully deny
benefits or discriminate on the basis of any of the specified
protected categories.
As required by current Government Code section 11139.5, the
Secretary of the Health and Human Services, together with the
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Fair Employment and Housing Commission, have established
regulations determining what persons are protected by these
provisions and what practices are discriminatory. (See 22 Cal.
Code Reg. section 98000 et. seq.). Although the Commission's
exclusive authority to fashion remedies for discrimination is
not limited by these provisions, there has been some confusion
in the courts about the ability to bring a private cause of
action to enforce the prohibition against discrimination by
agencies or entities receiving state funds. At least one
California court of appeal has held that there is no such right
under Government Code section 11135. ( Arriaga v. Loma Linda
University (1992) 10 Cal.App. 4th 1556, 1561-1564. However, a
panel of the Ninth Circuit Court of Appeal has held that such a
private right is available. ( Greater Los Angeles Council on
Deafness v. Zolin (9th Cir. 1987) 812 F.2d 1103, 1113-1114.)
This bill does not settle that conflict about available
enforcement remedies, but it does clarify that the prohibition
against discrimination by agencies or entities receiving state
funds is at least enforceable through a civil action for
equitable relief. This will permit private individuals to seek
judicial relief to force agencies or entities receiving state
funds to halt their discriminatory practices.
Court Ordered Discrimination Prevention Training : This bill
also clarifies that a court may require an employer found to be
in violation of FEHA to conduct training of its employees,
supervisors, and management regarding the requirements of the
Act. FEHA currently authorizes a court to grant any relief
normally available to courts in civil actions. In addition, the
court may order any other relief in FEHA cases that, "in the
judgment of the court, will effectuate" the purpose of the Act.
(Government Code section 12965 (c)(3).) This bill simply
clarifies that such relief may include "a requirement that the
employer conduct training for all employees, supervisors, and
management on the requirements of [FEHA], the rights and
remedies of those who allege a violation of [the Act], and the
employer's internal grievance procedures."
ARGUMENTS IN SUPPORT : The Fair Employment and Housing
Commission, vested with the responsibility with enforcing FEHA,
supports this bill's many features. The Commission supports the
proposed increase from $50,000 to $150,000 in available damages
under FEHA, noting that it does not favor a complete elimination
of a cap on damages.
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The American Civil Liberties Union also strongly supports the
bill, writing that, taken together, the provisions in this
legislation comprise one of the most substantial improvements in
FEHA in many years.
The California Labor Federation, AFL-CIO, also writes in strong
support of the bill, stating that the bill's clarifications of
FEHA are "long overdue."
Equal Rights Advocates writes in support of the bill, commenting
that the bill's increased harassment protections for contract
workers, its pregnancy accommodation provisions, and its
statutory definition of the term "supervisor" will all
substantially further FEHA's anti-discrimination objectives.
The Employment Law Center of the Legal Aid Society of San
Francisco writes in particular support of the bill's
strengthened accommodation protections for individuals with
mental disabilities. The organization writes:
Millions of California adults live with psychiatric
disorders, and face ignorance and prejudice that can
lead to job loss and unemployment. Indeed, many with
mental illnesses do not reveal their condition, and
pursue their work lives with the stress of a hidden
disability. Without equality and reasonable
accommodation, many individuals with psychiatric
disabilities are unnecessarily barred from the
workplace in contravention of California's public
policy of nondiscrimination and inclusion... Like
individuals with HIV, seizure disorders and other
stigmatized disabilities, individuals with mental
health conditions are particularly vulnerable to
on-the-job harassment and outright discrimination.
Indeed, it remains distressingly common for employees
to be demoted or discharged from employment shortly
after disclosing their mental health condition,
regardless of job performance.
ARGUMENTS IN OPPOSITION : The Capitol Resource Institute
opposes this bill because it "would have negative impacts on
citizens of conscience?funded by tax dollars." The organization
asserts that "while [the bill] purports to promote tolerance is
[sic] actually intolerant to many California residents."
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The California Employment Law Council (CELC) writes in strong
opposition to the bill, asserting the legislation is "really a
potpourri of unrelated changes to various civil rights laws."
The organization states that although many of the provisions in
the bill are not objectionable, it does have serious concerns
about several of the provisions. For example, CELC writes that
the proposed amendments to Section 51. 5 of the Civil Code,
which would permit enforcement by a civil action for equitable
relief, "could be deemed applicable to the employment
relationship, and to have totally overturned, at a stroke, the
carefully crafted provisions of FEHA."
CELC also opposes the bill's: 1) definition of "supervisor"
(stating that such a definition is unnecessary since case law
already has adequately provided definition in this area); 2)
expansion of harassment protections to protect contract workers;
3) clarification that genetic testing of employees and job
applicants is prohibited under FEHA; 4) pregnancy accommodation
provisions; 5) clarification of the court's authority to order
discrimination prevention training; 6) cap on available damages
under FEHA at $150,000, arguing that federal caps on damages
ought to apply to both FEHA and private causes of action.
The Civil Justice Association of California, formerly the
Association for California Tort Reform (ACTR), opposes the bill
because of concerns that it will expand employer liability by
giving contract workers "a new power to sue a business they are
working for under contract." The organization also opposes the
inclusion in FEHA of a definition of "supervisor" and the
"tripling" of the available damages under FEHA from $50,000 to
$150,000. It writes that "[a]t the time when California's
economy is again healthy and growing," it is not the time to
expand potential employer liability in the civil justice system.
The California Association of Realtors wrote the Committee not
in opposition to the bill, but with the request it consider
eliminating the proposed housing discrimination amendments in
the bill.
related pending legislation : AB 858 (Kuehl), prohibiting
employers from requiring employees, as a condition of entering
into an employment contract, from waiving various
anti-discrimination provisions.
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Prior Pertinent Legislation:
AB 310 of 1998 (Kuehl): Contained many of the provisions
present in this legislation, including raising the available
damages cap in FEHA, providing remedies for contract workers who
suffer harassment in their workplace, prohibiting genetic
testing, and new accommodation requirements for pregnant
workers. Passed by the Legislature and vetoed by the Governor.
SB 1251 of 1998 (Calderon): Completely eliminated the $50,000
cap on damages available under FEHA and allowed prevailing
parties in FEHA actions to collect expert witness fees as part
of costs. Passed by the Assembly and subsequently amended into
a bill pertaining to educational reform.
SB 654 of 1998, Stats. 1998, Ch. 99 (Johnston): Expressly
prohibited employment discrimination (under the Fair Employment
and Housing Act) against healthy individuals with a genetic
predisposition for disease.
AB 658 of 1996 (Kuehl): Required reasonable accommodation of
pregnant employees under FEHA to include options other than job
transfer. Died in Assembly Labor and Employment Committee.
AB 713 of 1996 (Kuehl): Added contract workers to the list of
individuals protected against harassment under FEHA. Died in
Assembly Labor and Employment Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Fair Employment and Housing Commission
California Labor Federation, AFL-CIO
American Civil Liberties Union
Consumer Attorneys of California
Employment Law Center of the Legal Aid Society of San Francisco
Equal Rights Advocates
Attorney General's Office
Opposition
Capitol Resource Institute
Civil Justice Association of California, formerly "ACTR"
California Employment Law Council
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334