BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1252 (Corbett)
As Amended: March 25, 2010
Hearing Date: April 13, 2010
Fiscal: Yes
Urgency: No
KB/GW:jd
SUBJECT
Housing: Discrimination
DESCRIPTION
This bill, sponsored by the Department of Fair Employment and
Housing (DFEH), would amend the Fair Employment and Housing Act
(FEHA) to make technical revisions to several provisions
pertaining to housing discrimination. Specifically, this bill
would: (1) amend FEHA's civil penalty caps to conform with
those imposed in violation of the federal Fair Housing
Amendments Act (FHAA); (2) make technical revisions to
consistently include "source of income" as a characteristic
which is protected from housing discrimination; and (3) clarify
that admission preferences based on age, imposed in connection
with a federally-approved housing program, do not constitute age
discrimination in housing.
BACKGROUND
The Department of Fair Employment and Housing (DFEH) is the
state agency which is responsible for enforcing the FEHA and
other civil rights laws. FEHA prohibits employment and housing
discrimination based on the protected classes of race, color,
religion, sex, sexual orientation, marital status, national
origin, ancestry, familial status, source of income, or
disability. The FEHA further provides that it is a civil right
to be able to pursue and maintain housing or employment without
facing discrimination.
According to a work-share agreement between the DFEH and the
(more)
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U.S. Department of Housing and Urban Development (HUD), the FEHA
must remain substantially similar to the Fair Housing Amendments
Act (FHAA) in order for the DFEH to receive complaint referrals
and funding from HUD. The FHAA is the federal counterpart to
the FEHA, making it unlawful for both public and private
businesses to discriminate in the sale or rental of housing on
the grounds of race, color, religion, national origin, gender,
familial status, or disability. In its continued effort to keep
the FEHA and the FHAA substantially equivalent, the DFEH has
identified various FEHA related issues which need clarifying and
revision. This bill would make a number of those revisions.
CHANGES TO EXISTING LAW
Existing law , the Unruh Civil Rights Act, outlaws discrimination
based on sex, race, color, religion, ancestry, national origin,
disability, medical condition, marital status, or sexual
orientation. This applies to all businesses, including housing
accommodations. Businesses may not discriminate in the sale or
rental of housing accommodations based on age, with the
exception of establishments which are designed to accommodate
the unique social and physical needs of senior citizens. (Civ.
Code Secs. 51, 51.2.)
Existing federal law prohibits the refusal to sell or rent a
housing accommodation to any person because of race, floor,
religion, sex, familial status, or national origin. (42 U.S.C.
Sec. 3604.)
Existing law , the Fair Employment and Housing Act, declares it
to be against public policy to discriminate on the grounds of
race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, or disability; and
that every person has a civil right to be given the opportunity
to seek, obtain, or hold employment and housing without facing
discrimination based on these protected classes. (Gov. Code
Secs. 12920, 12921.)
Existing law provides that a person intends to unlawfully
discriminate if one of the protected classes played a motivating
factor in committing a discriminatory housing practice. A
violation can be found when the act has the effect of unlawfully
discriminating, regardless of the intent. (Gov. Code Sec.
12955.8.)
Existing law declares it unlawful for any housing accommodation
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owner to inquire about; make known any preference or limitation
as to; discriminate; or harass a person based on the person's
race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of income, or
disability. (Gov. Code Sec. 12955.)
Existing law provides that an owner may be subject to a civil
penalty of up to $10,000 for his or her first violation of FEHA.
If it is the offender's second violation within five years, a
civil penalty may be assessed of up to $25,000. If it is the
offender's third violation within seven years, a civil penalty
may be assessed of up to $50,000. (Gov. Code Sec. 12987.)
Existing federal law provides that an administrative law judge
may impose a civil penalty of up to $16,000 for a violation of a
Fair Housing Act. If it is the offender's second violation
within five years, a civil penalty may be assessed up of up
$37,500. If the offender has violated the Fair Housing Act
three or more times within seven years, a civil penalty may be
assessed of up to $65,000. (24 C.F.R. 180.671.)
This bill would clarify that admission preferences based on age,
imposed in connection with a federally-approved housing program,
do not constitute age discrimination in housing.
This bill would make technical revisions to add "source of
income" to the list of classes protected under Government Code
Sections 12920, 12921, and 12955.8.
This bill would increase the maximum civil penalties that may be
assessed for a violation of the FEHA to $16,000, $37,500, and
$65,000 for a person's first, second, and third violations,
respectively.
COMMENT
1.Stated need for the bill :
According to the sponsor, the Department of Fair Employment and
Housing, SB 1252 would make several technical and clarifying
revisions necessary for the Fair Employment and Housing Act to
remain substantially compliant with the Fair Housing Amendments
Act. This would ensure that the Department continues to receive
referrals and funding from the U.S. Department of Housing and
Urban Development for the purposes of enforcing state laws
prohibiting housing discrimination.
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2.Adding "source of income" to the list of protected classes in
existing law would help to create consistency
The Fair Employment and Housing Act (Gov. Code Sec. 12900, et.
seq.) declares that it is unlawful to discriminate on the basis
of race, sex, sexual orientation, marital status, national
origin, ancestry, familial status, source of income, and
disability.
In 1999, SB 1098 (Burton, Chapter 590, Statutes of 1999) amended
Government Code Section 12955 to prohibit housing discrimination
on the basis of a person's "source of income." "Source of
income" was defined as "lawful, verifiable income paid directly
to a tenant or paid to a representative of a tenant." (Gov.
Code Sec. 12955(p)(1).) Therefore, after the enactment of SB
1098, any owner of a housing accommodation was prohibited from
discriminating against; harassing; or making any preference or
limitation based on a person's membership of a protected class,
including: race, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of income, or
disability. (Gov. Code Sec. 12955.) SB 1098 contained a sunset
of January 1, 2005.
In 2004, SB 1145 (Burton, Chapter 568, Statutes of 2004) removed
the sunset provision, permanently adding "source of income" to
the protected classes listed in Section 12955. However, at the
time the sunset was removed, the lists of protected
characteristics in related FEHA housing provisions were not
amended to also include "source of income." SB 1252 would add
"source of income" to the list of protected classes in
Government Code Section 12920 and 12921 in order to create
consistency among these provisions. As previously stated,
because "source of income" has already been established by the
Legislature to be a protected characteristic for the purposes of
housing discrimination, this change would be technical, and not
substantive in nature.
However, in order to address concerns that this bill would
broaden substantive rights under the FEHA, this Committee may
wish to consider creating a new subdivision defining "source of
income" in Government Code Section 12927, which contains
definitions pertaining to housing. The definition of "source of
income" would be the same as currently existing in Section
12955(p)(i). This would help ensure that the term is not
interpreted to encompass more than what the Legislature has
already approved.
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Suggested amendment
Create subdivision (i) in Government Code Section 12927 to
define "source of income" as follows:
"'Source of income' means lawful, verifiable income paid
directly to a tenant or paid to a representative of a tenant.
For the purposes of this section, a landlord is not considered
a representative of a tenant."
3.This bill would increase the cap on civil penalties
administered in housing discrimination cases so that state
penalties are identical to those in the federal FHAA
As discussed above, the state FEHA must remain substantially
equivalent to the federal FHAA in order to receive complaint
referrals and funding from HUD. (See Background.) Government
Code Section 12987 provides that if a person is found to have
engaged in unlawful discriminatory practices, a civil penalty
may be assessed against that party. Currently, the FEHA states
that a civil penalty of up to $10,000 may be assessed against a
violator for a first time offense. If it is the second
violation in five years, a maximum civil penalty may be imposed
of $25,000. If it is the third violation in seven years, a
maximum civil penalty of $50,000 may be imposed. However,
federal law has recently increased its cap on civil penalties in
housing discrimination cases, imposing caps of $16,000, $37,500,
and $65,000, for a person's first, second, and third violations,
respectively. (24 C.F.R. Sec. 180.671.)
For the current contract period, the DFEH anticipates receiving
over $3 million dollars from HUD. This extremely important
funding source could be at risk if the cap on the FEHA's civil
penalties is not also raised to conform to the maximum amount
that may be imposed on violators at the federal level. In order
to keep the FEHA substantially equal to the FHAA, SB 1252
proposes to increase the FEHA's civil penalty caps to be equal
to that of the FHAA. Specifically, SB 1252 proposes to
increase the FEHA's civil penalty caps for first, second, and
third violations to $16,000; $37,500; and $65,000 respectively.
4.SB 1252 would reconcile differences between federal law and
state law regarding housing selection preferences and age
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The FEHA prohibits housing discrimination based on age, with the
exception of housing accommodations specifically designed for
senior citizens. However, FHAA does not expressly prohibit age
discrimination in housing. Instead, the FHAA prohibits the
refusal to sell or rent "?a dwelling to any person because of
race, color, religion, sex, familial status, or national
origin."(42 U.S.C. Sec. 3604.) This discrepancy becomes
problematic because some federal housing programs have renter
eligibility criteria requiring that at least one member of the
household be 62 years old or older. Other members of the
household may be any age, and the provider may not refuse to
rent to a family with minor children, as long as one household
member is at least 62. This type of requirement violates
California law, which only provides an exemption for senior
housing accommodations to make housing selections based on a
minimum age requirement. Therefore, a failure to comply with
the federal regulation will result in a loss of funding for
housing providers, but compliance with the federal regulation
will result in violation of state law and a potential DFEH
complaint.
SB 1252 would clarify that admission preferences based on age,
imposed in connection with a federally-approved housing program,
do not constitute age discrimination in housing. This
clarification would allow for both FHAA and FEHA to operate
simultaneously and without conflict with one another.
5.Opposition
The opposition has expressed concerns regarding the addition of
"source of income" to Government Code Sections 12920, 12921, and
12955.8. The opponents argue that adding "source of income,"
without a limiting definition like the one contained in
Government Code Section 12955, would unintentionally result in
new liability for housing discrimination claims. The
opposition also argues that the addition of "source of income"
to Government Code Sections 12920 and 12921 is not needed to
protect discriminatory actions. However, the author and sponsor
assert that adding "source of income" to the Government Code
Sections would not make any substantive changes to law, nor
would it expand the rights or liberties which are already
afforded to individuals through case and statutory law.
Support : None Known
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Opposition : Apartment Association California Southern Cities,
Orange County Apartment Association
HISTORY
Source : Department of Fair Employment and Housing
Related Pending Legislation : None Known
Prior Legislation :
SB 1098 (Burton, Chapter 590, Statutes of 1999) (See Comment
2.)
SB 1145 (Burton, Chapter 568, Statutes of 2004) (See Comment
2.)
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