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 AB 1001 Page 2 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, AB 1001 Page 3 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 Page 4 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 Page 5 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