BILL NUMBER: AB 2874 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 10, 2008
AMENDED IN ASSEMBLY APRIL 9, 2008
AMENDED IN ASSEMBLY MARCH 24, 2008
INTRODUCED BY Assembly Member Lieber
FEBRUARY 22, 2008
An act to amend Section 12970 Sections
12903 and 12970 of the Government Code, relating to civil
rights.
LEGISLATIVE COUNSEL'S DIGEST
AB 2874, as amended, Lieber. Civil Rights: damages.
Under the California Civil Rights Act of 2005, all persons within
the jurisdiction of this state have the right to be free from
violence, or intimidation by threat of violence, committed against
their persons or property because of any specified characteristic or
affiliation, including political affiliation, position in a labor
dispute, disability, medical condition, sex, race, color, religion,
marital status, ancestry, or national origin. The California Fair
Employment and Housing Act limits the total amount of actual damages
that the California Fair Employment and Housing Commission may assess
against a respondent for a violation of the California Civil Rights
Act of 2005, per aggrieved person, to $150,000.
This bill would delete the $150,000 limitation on actual damages
that may be assessed by the California Fair Employment and Housing
Commission against a respondent who violates the California Civil
Rights Act of 2005, as an unlawful practice.
Under existing law, the Fair Employment Housing Commission exists
within the State and Consumer Services Agency.
This bill would rename the Fair Employment and Housing Commission
the California Civil Rights Commission.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12903 of the
Government Code is amended to read:
12903. (a) There is in the State and
Consumer Services Agency the Fair Employment and Housing
Commission California Civil Rights Commission .
The commission shall consist of seven members, to be known as
commissioners, who shall be appointed by the Governor, by and with
the advice and consent of the Senate, and one of whom shall be
designated as chairperson by the Governor. The term of office of each
member of the commission shall be for four years.
(b) Any reference in statute or regulation to the Fair Employment
and Housing Commission shall be construed to refer to the California
Civil Rights Commission.
(c) Nothing in this section requires a state or local agency to
revise any regulation, form, or document.
SECTION 1. SEC. 2. Section 12970 of
the Government Code is amended to read:
12970. (a) If the commission finds that a respondent has engaged
in any unlawful practice under this part, it shall state its findings
of fact and determination and shall issue and cause to be served on
the parties an order requiring the respondent to cease and desist
from the unlawful practice and to take action including any of the
following:
(1) The hiring, reinstatement, or upgrading of employees, with or
without backpay.
(2) The admission or restoration to membership in any respondent
labor organization.
(3) The payment of actual damages as may be available in civil
actions under this part, except as otherwise provided in this
section. Actual damages include damages for emotional injuries if the
accusation or amended accusation prays for those damages. Actual
damages awarded under this section for emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses shall not exceed, in combination with the amounts
of any administrative fines imposed pursuant to subdivision (c), one
hundred fifty thousand dollars ($150,000) per aggrieved person per
respondent.
(4) Notwithstanding paragraph (3), the payment of actual damages
assessed against a respondent for a violation of Section 51.7 of the
Civil Code, as an unlawful practice under this part.
(5) Affirmative or prospective relief to prevent the recurrence of
the unlawful practice.
(6) A report to the commission as to the manner of compliance with
the commission's order.
(b) (1) An unlawful practice under this part alone is not
sufficient to sustain an award of actual damages pursuant to this
section. The department is required to prove, by a preponderance of
the evidence, that an aggrieved person has sustained actual injury.
In determining whether to award damages for emotional injuries, and
the amount of any award for these damages, the commission shall
consider relevant evidence of the effects of discrimination on the
aggrieved person with respect to any or all of the following:
(A) Physical and mental well-being.
(B) Personal integrity, dignity, and privacy.
(C) Ability to work, earn a living, and advance in his or her
career.
(D) Personal and professional reputation.
(E) Family relationships.
(F) Access to the job and ability to associate with peers and
coworkers.
(2) The shall also consider the duration of the emotional injury,
and whether that injury was caused or exacerbated by an aggrieved
person's knowledge of a respondent's failure to respond adequately
to, or to correct, the discriminatory practice, or by the
egregiousness of the discriminatory practice.
(c) In addition to the foregoing, in order to vindicate the
purposes and policies of this part, the commission may assess against
the respondent, if the accusation or amended accusation so prays, an
administrative fine per aggrieved person per respondent, the amount
of which shall be determined in accordance with the combined amount
limitation of paragraph (3) of subdivision (a).
(d) (1) In determining whether to assess an administrative fine
pursuant to this section, the commission shall find that the
respondent has been guilty of oppression, fraud, or malice, expressed
or implied, as required by Section 3294 of the Civil Code. In
determining the amount of fines, the commission shall consider
relevant evidence, including evidence of the following:
(A) Willful, intentional, or purposeful conduct.
(B) Refusal to prevent or eliminate discrimination.
(C) Conscious disregard for the rights of employees.
(D) Commission of unlawful conduct.
(E) Intimidation or harassment.
(F) Conduct without just cause or excuse.
(G) Multiple violations of the Fair Employment and Housing Act.
(2) The moneys derived from an administrative fine assessed
pursuant to this subdivision shall be deposited in the General Fund.
No administrative fine shall be assessed against a public entity. The
commission shall have no authority to award punitive damages as a
remedy for a finding of employment discrimination.
(e) In addition to the foregoing, in order to vindicate the
purposes and policies of this part, the commission may assess against
the respondent if the accusation or amended accusation so prays, a
civil penalty of up to twenty-five thousand dollars ($25,000) to be
awarded to a person denied any right provided for by Section 51.7 of
the Civil Code, as an unlawful practice prohibited under this part.
(f) If the commission finds the respondent has engaged in an
unlawful practice under this part, and the respondent is licensed or
granted a privilege by an agency of the state to do business, provide
a service, or conduct activities, and the unlawful practice is
determined to have occurred in connection with the exercise of that
license or privilege, the commission shall provide the licensing or
privilege granting agency with a copy of its decision or order.
(g) If the commission finds that a respondent has not engaged in
an unlawful practice under this part, the commission shall state its
findings of fact and determination and issue and cause to be served
on the parties an order dismissing the accusation as to that
respondent.
(h) Any findings of fact and determination made or any order
issued pursuant to this section shall be written and shall indicate
the identity of the members of the commission who participated
therein.
(i) Any order issued by the commission shall have printed on its
face references to the rights of appeal of any party to the
proceeding to whose position the order is adverse.
(j) If the commission finds that a respondent has engaged in an
unlawful practice under this part, and it appears that this practice
consisted of acts described in Section 243.4, 261, 262, 286, 288,
288a, or 289 of the Penal Code, the commission, with the consent of
the complainant, shall provide the local district attorney's office
with a copy of its decision and order.
(k) Notwithstanding Section 12960, if the commission finds that a
respondent has engaged in unlawful discrimination in housing under
Section 12948, the remedies afforded in Section 12987 or any other
provision in this part pertaining to housing discrimination, shall
apply.