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  








                                                          AB 1001
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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. 








                                                          AB 1001
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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 








                                                          AB 1001
                                                          Page  6

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