BILL ANALYSIS
AB 1001
Page 1
Date of Hearing: April 21, 1999
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Darrell Steinberg, Chair
AB 1001 (Villaraigosa) - As Introduced: February 25, 1999
SUMMARY : Moves the provisions prohibiting employment
discrimination on the basis of sexual orientation from the Labor
Code to the Fair Employment and Housing Act (FEHA) (Government
Code). Codifies case law which prohibits housing discrimination
on the basis of sexual orientation. Specifically, this bill :
1)Defines "sexual orientation" as "heterosexuality,
homosexuality, and bisexuality."
2)Defines sexual orientation as an unlawful basis for
discrimination in employment and housing and amends FEHA to
include sexual orientation.
3)Declares that the opportunity to seek and obtain employment
free from discrimination is a civil right.
4)Prohibits the owner of any housing accommodation from making
any inquiry, oral or written, regarding an applicant's sexual
orientation and from discriminating against the applicant.
5)Prohibits any person or entity that provides financial
assistance for the purchase or construction of housing from
discriminating against any person or group of persons because
of sexual orientation.
6)Deletes the prohibition on employment discrimination based on
sexual orientation from the Labor Code.
EXISTING LAW
1)Prohibits in Labor Code Section 1102.1, 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 Relation (DIR), Division of Labor
Standards Enforcement (DLSE) investigates complaints arising
under this section or complaints can be filed as a civil
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action in court. Claims must be filed within 30 days of the
alleged incident. Remedies available include cease and desist
orders, reinstatement, and backpay.
2)Prohibits through FEHA, employment and housing discrimination
based on race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, marital status, sex and age. Employers with four
or fewer employees and non-profit religious organizations are
exempt from FEHA.
The Department of Fair Employment and Housing (DFEH)
investigates and adjudicates complaints arising under this
section. 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 to
$50,000, affirmative or prospective relief, an administrative
fine, and attorney's fees. 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.
For housing discrimination, 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 choose 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.
3)Prohibits through the Unruh Civil Rights Act, housing
discrimination based on sexual orientation ( Hubert v.
Williams (1982) 133 Cal.App.3 Supp.1). DFEH investigates
complaints arising under this section under the rules relating
to housing cited above. 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,
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whichever is greater, and attorney's fees.
FISCAL EFFECT : Unknown
COMMENTS :
1)This bill is similar to AB 257 (Villaraigosa) of 1997, which
was vetoed by Governor Wilson. AB 101 (T. Friedman) of 1991,
was also vetoed by the Governor. AB 101 would have added
sexual orientation to the list of protected employment
categories in FEHA. In response to concerns raised in the
veto message, Friedman authored AB 2601, Chapter 915, Statutes
of 1992, which codified case law ( Sokora v. Dayton Hudson
Corp. , 235 Cal. App. 3d 654) by creating Labor Code Section
1102.1.
2)ARGUMENTS IN SUPPORT: According to the author, "[T]he Labor
Code [Section 1102.1] puts protection against discrimination
for California's gay, lesbian, and bisexual individuals in a
completely different category from other groups. Gays do not
have equivalent protection to other California employees, who
are protected by FEHA? Sexual orientation has been covered
differently and inconsistently under the current law. In
addition, lack of awareness and restrictive deadlines in
comparison to FEHA make? FEHA a much preferable alternative to
present California law."
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:
a) Thirty days versus one year 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.
b) Extensive case law has established guidelines for FEHA
whereas little exists interpreting Labor Code
Section1102.1.
c) All nonprofit organizations are exempted from Labor Code
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Section 1102.1; only nonprofit religious organizations are
exempted from FEHA.
d) DFEH investigators are extensively trained in
discrimination cases. DIR investigators, on the other
hand, primarily handle whistleblowing cases, wage disputes,
and health and safety complaints.
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 that employers are required to post in workplaces to
advise 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 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.
3)ARGUMENTS IN OPPOSITION: Opponents of this bill argue that
churches will be forced to hire homosexual employees if this
bill passes, although nonprofit religious organizations are
specifically exempt from FEHA.
Opponents also object to providing protection for a group of
people whose behavior offends them. "We...believe that these
bills represent a devious departure from ethics and morality.
Whether anyone professes Judaism, Christianity, or Islam, they
will be united with a resounding "NO" to this attempt to warp
and destroy our society" and "Because of HIV and other
diseases, homosexuality is the most dangerous lifestyle in
America... It is unwise to grant protections to a group of
people who are such a danger to themselves and others."
They state that this bill might be costly to California
businesses, especially small businesses, who might be involved
in increased litigation. They fear that quotas based on
inaccurate estimates of the homosexual population will require
employers to hire more homosexuals than actually exist.
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Finally, opponents do not believe that gays and lesbians
should be given minority status or "more than equal
protection." They note that homosexuals do not meet the U.S.
Supreme Court's definition of a "minority."
Opponents have raised concerns about increased litigation if
this bill passes. It should be noted 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 impact of the bill on litigation,
however, small businesses will not be affected because neither
the Labor Code nor FEHA applies to them.
Opponents object to giving homosexuals "minority status."
However, this bill does not create a new protected class;
discrimination in employment and housing on the basis of
sexual orientation is already prohibited under current law.
This bill simply provides the same statute of limitations,
administrative procedures, and remedies for all victims of
discrimination.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda Democratic Club
AIDS Healthcare Foundation
AIDS Project Los Angeles
Alameda County Board of Supervisors
American Association for single People
American Civil Liberties Union
Asian Pacific Gays and Friends
California Alliance for Pride and Equality
California Labor Federation, AFL-CIO
California Apartment Association
California National Organization for Women
California Nurses Association
California Rural Legal Assistance Foundation
California Teachers Association
Consumer Attorneys of California
Central California Alliance
First Baptist Church of Windsor
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Gay and Lesbian Association of Retiring Persons
Los Angeles Gay and Lesbian Center
Los Angeles Chapter of PFLAG
National Organization For Women
Reform Party
Santa Barbara Stonewall Democratic Club
South Orange County Chapter of the Parents, Families and Friends
of Lesbian and Gays Organization.
Western Center on Law and Poverty
Wildcat International
Pride at Work, National Organization for LGBT Labor
Southern California Women for Understnading
Ventura County Chapter of PFLAG
Opposition
Arlington Avenue Church of the Nazarene
Calvary Community Church
Committee on Moral Concerns
Dikaios Christian Educators Association
Institute for Creation Research
New Harvest Christian Fellowship
Traditional Values Coalition
Women Volunteers in Politics
Analysis Prepared by : Ralph Lightstone / L. & E. /
(916)319-2091