BILL ANALYSIS
AB 1670
Page 1
ASSEMBLY THIRD READING
AB 1670 (Judiciary Committee)
As Amended May 6, 1999
2/3 vote. Urgency
JUDICIARY 9-3 APPROPRIATIONS 14-7
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|Ayes:|Kuehl, Aroner, Bock, |Ayes:|Migden, Cedillo, Davis, |
| |Jackson, Knox, Longville, | |Hertzberg, Kuehl, Papan, |
| |Shelley, Steinberg, | |Romero, Shelley, |
| |Wiggins | |Steinberg, Thomson, |
| | | |Wesson, Wiggins, Wright, |
| | | |Aroner |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Ackerman, McClintock, |Nays:|Brewer, Ashburn, Battin, |
| |Strickland | |Pescetti, Maldonado, |
| | | |Runner, Zettel |
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SUMMARY : Strengthens and clarifies various civil rights
protections afforded by the Fair Employment and Housing Act
(FEHA) and other civil rights statutes. Specifically, this
bill :
1)Increases the amount of damages and administrative fines that
may be awarded by the Fair Employment and Housing Commission
(Commission) in employment discrimination cases from $50,000
to $150,000, and permits a court to award expert witness fees
to a prevailing party in FEHA cases.
2)Extends harassment protections under FEHA to contract workers.
3)Requires employers to provide reasonable accommodations to
pregnant employees, clarifies that genetic testing of
employees is prohibited, and expands the class of employers
subject to FEHA's prohibition against discrimination on the
basis of mental disability.
4)Clarifies that protections against housing and employment
discrimination cover discrimination based upon a victim's
perceived membership in a protected class, and clarifies that
FEHA's protections against housing and employment
discrimination cover the right to freely associate.
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EXISTING LAW :
1)Prohibits business establishments from discriminating against,
boycotting or blacklisting, or refusing to buy from, sell to,
or trade with, any person because of the race, creed,
religion, color, national origin, sex, or disability of that
person or the person's partners, members, stockholders,
directors, officers, managers, superintendents, agents,
employees, business associates, suppliers, or customers.
2)Provides that the combined amount of damages and
administrative fines that may be awarded by the Commission in
employment discrimination cases is capped at $50,000.
However, there is no cap at all on the amount of damages that
may be awarded by the Commission in housing discrimination
cases.
3)Provides, in federal actions, that a prevailing party may
recover an award "of reasonable attorney's fees (including
expert witness fees) as part of recoverable costs." However,
expert witness fees are not awarded in state FEHA cases as an
item of costs to prevailing parties.
4)Protects employees, under FEHA, but not independent
contractors, from discriminatory employment practices.
5)Makes it an unlawful employment practice for employers,
including employer agents, among others, to harass an employee
or applicant on the basis of various protected
characteristics.
6)Makes it an unlawful employment practice for an employer to
refuse to transfer a pregnant female employee, upon her
request, to a less strenuous or hazardous position for the
duration of her pregnancy.
7)Provides that employers of five or more employees are
generally subject to FEHA's discrimination prohibitions.
However, only employers of fifteen or more employees are
subject to FEHA's prohibition against discrimination on the
basis of mental disability.
8)Declares as a civil right the opportunity to seek, obtain, and
hold employment without discrimination on specified bases.
However, FEHA does not expressly state that its protections
against housing and employment discrimination cover
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associational rights.
9)Does not expressly state that the prohibition against
discrimination by agencies or entities receiving state funds
is enforceable through a civil action for equitable relief.
10)Authorizes the court in actions brought under FEHA to grant
any relief normally available to courts in civil actions. In
addition, the court may order any other relief in FEHA cases
that, "in the judgment of the court, will effectuate" the
purpose of FEHA.
FISCAL EFFECT : Unknown
COMMENTS : This bill contains many of the provisions that
comprised AB 310 (Kuehl) of 1998, which was vetoed. That
comprehensive civil rights legislation was vetoed by Governor
Wilson due to concerns about the bill's harassment protections
for contract workers. Like AB 310, this bill seeks to
strengthen and clarify a host of key civil rights protections
contained in FEHA and other civil rights statutes. The proposed
changes continue to incorporate recommendations made by a broad
coalition of the state's housing, labor, disability, civil
rights, and employment law experts and organizations. Many of
the proposals are taken from existing federal law or regulations
in the areas of housing and employment, and, as noted, many have
already been approved by the Legislature in prior sessions.
It is the Committee's goal with this legislation to provide
California employers with clearer guidance about the
Legislature's intent regarding particular provisions of state
discrimination laws. It also seeks to better harmonize federal
and state employment laws in these areas to facilitate the
"vigorous enforcement" of our anti-discrimination laws to which
the Legislature has long been committed.
Following are the Committee's explanations of, and rationales
for, the principal provisions of the legislation:
This bill increases the amount of damages and administrative
fines that may be awarded by the Commission in employment
discrimination cases from $50,000 to $150,000. As noted above,
there is already no cap at all on the amount of damages that may
be awarded by the Commission in housing discrimination cases.
This proposed increase of the damages and fines cap in
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employment cases was approved by the Legislature in 1991 in SB
827 (Bergeson), which was vetoed, would have given the
Commission the statutory authority to assess actual damages up
to $150,000. This provision was approved again by the Assembly
last year in AB 310 (Kuehl), and a broader provision
(eliminating the cap entirely) was approved by the Senate last
year in SB 1251 (Calderon).
This bill also permits the court to award expert witness fees to
a prevailing party. The federal counterpart to FEHA is Title
VII, which expressly permits the award of expert witness fees as
part of the reimbursement of costs available to a prevailing
party. However, expert witness fees are not presently included
as a part of costs. In addition, a recent California Supreme
Court decision ( Davis vs. KGO (1998) 17 Cal. 4th 436) held that
FEHA did not explicitly authorize recovery of expert witness
fees.
In addition to addressing the damages and costs available under
FEHA, this legislation expands the reach of the state's
harassment (but not discrimination) protections by including
contract workers within FEHA's coverage. Currently, FEHA
applies to all California employees and applicants for
employment, including persons compensated by temporary service
agencies. For purposes of FEHA, "employee" is defined as "Any
individual under the direction and control of an employer under
any appointment or contract of hire or apprenticeship, express
or implied, oral or written?.".
However, FEHA expressly excludes from its reach independent
contractors, as defined in Labor Code Section 3353, governing
workers' compensation. Furthermore, there already is important
precedent in California law for protecting independent
contractors from harassment. Civil Code section 51.9 broadly
protects non-employees from sexual harassment, which may include
contract workers, whenever "there is a business, service, or
professional relationship between the plaintiff and defendant"
and the defendant sexually harasses the plaintiff.
To address a lack of a definition of "supervisor" in FEHA, this
bill employs the reasonable definition used in the Labor Code in
the Agricultural Labor Relations Act. This common sense
definition should help clarify for employers and employees
alike, as well as for the courts, those individuals who are
acting with supervisorial authority for purposes of FEHA.
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This bill also seeks to clarify and strengthen employer
responsibilities for accommodating pregnant employees. This
measure requires employers to provide reasonable and measured
accommodations to pregnant employees not currently specified in
FEHA. Currently, FEHA excuses employers from reasonable
accommodation of pregnant employees if accommodation would
impose an undue hardship. Unfortunately, FEHA does not yet
expressly permit less costly, and often more desirable and
appropriate, accommodations for pregnant employees that fall
short of job transfer.
This bill also clarifies that it is an unlawful housing practice
for a housing owner to harass a tenant or prospective tenant on
any of the bases protected under FEHA. This is consistent with
a recent state court of appeal decision, Brown v Smith (1997) 55
Cal.App. 4th 767, where the court held that while the housing
side of FEHA does not mention the word "harassment", it is a
variety of sex discrimination and therefore subject to the
protections of FEHA.
This legislation also clarifies that genetic testing is
prohibited under FEHA. Current law, pursuant to legislation
last year, SB 654 (Johnston), Chapter 99, Statutes of 1998,
already prohibits discrimination on the basis of genetic
characteristics. That provision expressly prohibits under FEHA
employment discrimination against healthy individuals with a
genetic predisposition for disease. However, it does not
expressly state that employers may not obtain genetic
information from employees or job applicants through genetic
testing, and there is no statutory protection for employees
whose employers conduct genetic testing at the workplace.
This bill eliminates the current discrepancy in FEHA between
FEHA's treatment of physical and mental disabilities. It
provides that employers of five or more employees will now be
subject to FEHA's prohibition of discrimination on the basis of
mental disabilities, as is already the case with respect to
physical disabilities.
The Committee believes this change is needed in FEHA because,
despite the need for the same protection afforded those with
physical disabilities, FEHA's current employer size requirement
means that qualified individuals with psychiatric disabilities
who work for smaller employers, those with five to fourteen
employees, effectively have no legal recourse against
disability-based termination, harassment or demotion. Further,
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qualified individuals with psychiatric disabilities have no
access to basic accommodations such as time off for therapy, a
leave of absence to address a health care crisis, a quieter work
space, or periodic breaks to take medications.
This bill clarifies that FEHA's protections against housing and
employment discrimination, and Civil Code Section 51.5's
protections against discrimination in boycotting, buying,
selling, and trading, also cover discrimination based upon a
victim's perceived membership in a particular protected class.
It also amends Civil Code Section 51.5 to include the "refusal
to contract with" as part of the statute's discrimination
protections, and grants the Department of Fair Employment and
Housing and the Commission jurisdiction over cases involving
claimed violations of Section 51.5 of the Unruh Civil Rights
Act. In addition, this bill clarifies that FEHA's protections
against housing and employment discrimination cover
associational rights as well (i.e., discrimination based upon
perceptions about who one may be associating with will now be
protected under FEHA).
This bill also clarifies that the prohibition against
discrimination by agencies or entities receiving state funds is
enforceable through a civil action for equitable relief. Under
current law (subdivision (a) of Government Code section 11135),
"No person in the State of California shall, on the basis of
ethnic group identification, religion, age, sex, color, or
disability, be unlawfully denied the benefits of, or be
unlawfully subjected to discrimination under, any program or
activity that is funded directly by the state or receives any
financial assistance from the state." Thus under this
provision, entities undertaking programs or activities that are
funded directly by the state, and entities that receive
financial assistance from the state, may not unlawfully deny
benefits or discriminate on the basis of any of the specified
protected categories.
This bill also clarifies that a court may require an employer
found to be in violation of FEHA to conduct training of its
employees, supervisors, and management regarding the
requirements of the Act.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
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