BILL ANALYSIS
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THIRD READING
Bill No: AB 1001
Author: Villaraigosa (D), et al
Amended: 9/3/99 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-3, 8/17/99
AYES: Burton, Escutia, O'Connell, Sher, Schiff
NOES: Haynes, Morrow, Wright
NOT VOTING: Peace
SENATE APPROPRIATIONS COMMITTEE : 8-4, 9/1/99
AYES: Johnston, Alpert, Bowen, Burton, Escutia, Karnette,
Perata, Vasconcellos
NOES: Kelley, Leslie, McPherson, Mountjoy
NOT VOTING: Johnson
ASSEMBLY FLOOR : 42-36, 6/3/99 - See last page for vote
SUBJECT : Fair Employment and Housing Act: sexual
orientation
SOURCE : Author
DIGEST : This bill moves 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 also codifies case law which
prohibits housing discrimination on the basis of sexual
orientation.
ANALYSIS : Existing law:
CONTINUED
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1. Prohibits employment discrimination based on actual or
perceived sexual orientation under the Labor Code.
2. 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:
1. Amend the Fair Employment and Housing Act (FEHA) to
include sexual orientation as a protected category
against discrimination.
2. Define "sexual orientation" as "heterosexuality,
homosexuality, and bisexuality."
3. Delete the prohibition on employment discrimination
based on sexual orientation from the Labor Code.
The bill provides that nothing in this bill is intended to
alter the definition of employer with regard to any bona
fide scouting organization covered under Section 1102.1 of
the Labor Code as it read on December 1, 1999.
This bill is double-jointed with AB 1670 (Assembly
Judiciary Committee), SB 1185 (Johnston), and SB 1098
(Burton).
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)
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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 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.
Prior legislation :
AB 257 (Villaraigosa) passed the Senate Floor 22-18,
9/10/98 and 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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
Fiscal Impact (in thousands)
Major Provisions 1999-2000 2000-01
2000-02 Fund
Enforcement $200 $400
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$400 General
SUPPORT : (Verified per Senate Judiciary Committee
8/17/99) (Unable to reverify at time of writing)
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
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
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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 : (Verified per Senate Judiciary Committee
8/17/99) (Unable to reverify at time of writing))
Committee on Moral Concerns
Seventh-Day Adventist Church Council
Numerous individuals
ARGUMENTS IN 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 organizations are exempted from FEHA.
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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 impact of the bill
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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.
ARGUMENTS IN OPPOSITION : There are 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 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
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employer exemption are expected."
ASSEMBLY FLOOR :
AYES: Alquist, Aroner, Bock, Calderon, Cedillo, Corbett,
Correa, Davis, Ducheny, Dutra, Firebaugh, Floyd,
Gallegos, Hertzberg, Honda, Jackson, Keeley, Knox, Kuehl,
Lempert, Longville, Lowenthal, Machado, Mazzoni, Migden,
Nakano, Papan, Romero, Scott, Shelley, Soto, Steinberg,
Strom-Martin, Thomson, Torlakson, Vincent, Wayne, Wesson,
Wiggins, Wildman, Wright, Villaraigosa
NOES: Aanestad, Ackerman, Ashburn, Baldwin, Bates, Battin,
Baugh, Brewer, Briggs, Campbell, Cox, Cunneen, Dickerson,
Florez, Frusetta, Granlund, Havice, House, Kaloogian,
Leach, Leonard, Maddox, Maldonado, Margett, McClintock,
Olberg, Oller, Robert Pacheco, Rod Pacheco, Pescetti,
Reyes, Runner, Strickland, Thompson, Washington, Zettel
NOT VOTING: Cardenas, Cardoza
RJG:jk 9/5/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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