BILL ANALYSIS                                                                                                                                                                                                    






                 SENATE JUDICIARY COMMITTEE
                  Adam B. Schiff, Chairman
                 1999-2000 Regular Session


AB 1670                                                A
Assembly Judiciary Committee                           B
As Amended June 1, 1999 
Hearing Date:  August 17, 1999                         1
Civil and Government Codes                             6
DLM:cjt                                                7
                                                       0

                           SUBJECT
                               
           Civil Rights:  Employment and Housing

                         DESCRIPTION  

This is an omnibus bill which would make several changes to  
the California Fair Employment and Housing Act (FEHA) and  
Civil Code relating to employment and housing  
discrimination.  Specifically, the key provisions of this  
bill would:

 Increase the amount of damages and administrative fines  
  that may be awarded by the Fair Employment and Housing  
  Commission in employment discrimination cases from  
  $50,000 to $150,000, and permit a court to award expert  
  witness fees to a prevailing party in FEHA cases. 

 Extend harassment protections under FEHA to contract  
  workers.

 Require employers to provide reasonable accommodations to  
  pregnant employees. 

 Clarify that genetic testing of employees is prohibited.

 Expand the class of employers subject to FEHA's  
  prohibition against discrimination on the basis of mental  
  disability from those with 15 or more employees to those  
  with 5 or more employees. 

 Clarify that protections against housing and employment  
                                                       
(more)



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  discrimination cover discrimination based upon a victim's  
  perceived membership in a protected class.

 Define "supervisor" under the FEHA as it is currently  
  defined in the California Agricultural Labor Relations  
  Act.
                          BACKGROUND  

Last session a coalition of housing, labor, disability,  
civil rights, and employment law organizations brought  
forward AB 310 (Kuehl), of 1998, a bill similar to AB 1670.  
  Many of the proposals were taken from existing federal  
law or regulations in the areas of housing and employment.   
The stated goal of supporters was to give California  
employers clear guidance, and provide harmony between  
federal and  state employment laws in these areas, in order  
to facilitate the "vigorous enforcement" of our   
anti-discrimination laws to which then-Governor Wilson  
committed to our state.  Despite this commitment,  
then-Governor Wilson vetoed AB 310 because, "This bill  
would give protection against discrimination to  
non-employees who are independent contractors engaged in  
independently established businesses with, among other  
things, the right to control how and when their work is  
performed."

This year AB 1670 is co-sponsored by the same coalition for  
civil rights, joined now by the Office of the Attorney  
General and the Fair Employment and Housing Commission as  
co-sponsors.

                   CHANGES TO EXISTING LAW
  
1.    Existing law  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.   (Civil Code Section 51.5, the  
  Unruh Civil Rights Act.)

   This bill  would add:
                                                             




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       Protection for  persons perceived to have any of  
     those characteristics, and;

       "Refusal to contract " as a prohibited act.

2.    Existing law  prohibits employment and housing  
  discrimination on the basis of race, religious creed,  
  color, national origin, ancestry, physical disability,  
  mental disability, medical condition, marital status, sex  
  or age. (Government Code Section 12940 et. Seq., the Fair  
  Employment and Housing Act.)

   This bill  would add discrimination based upon:

 The perception of a person violating this section that  
  the victim belongs to 
        a protected category, and;

       Association with persons in a protected category.

3.    Existing law   provides that the combined amount of  
  damages and administrative fines that may be awarded by  
  the Fair Employment and Housing Commission in employment  
  discrimination cases is capped at $50,000.  (Section  
  12970 (a)(3).)  However there is no cap at all on the  
  amount of damages that  may be awarded by the Commission  
  in housing discrimination  cases.  (Section 12987(a).)

       This bill  would increase the amount of damages and  
  administrative fines that  
  may be awarded by the Fair Employment and Housing  
  Commission in employment discrimination cases from  
  $50,000 to $150,000.

4.    Existing  law provides that the Department of Fair  
  Employment and Housing  
  shall respond to complaints of discriminatory practices  
  by employers and owners of housing accommodations.

       This bill  would:

       Declare that the opportunity to seek, obtain, and  
     hold housing without discrimination on any basis  
     protected under Civil Code Section 51 is a civil  
                                                             




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     right.

       Declare that it is an unlawful housing practice to  
     harass a tenant or prospective tenant, buyer or  
     prospective buyer on any of the bases protected under  
     FEHA.

5.    Existing law  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 the Act.  (Section 12965  
  (c)(3).)

       This bill  would:

       Permit a court to award expert witness fees to a  
     prevailing party in FEHA cases.

       Add that the FEHA may be enforced by private  
     parties against agencies which receive public funds  
     through civil actions for equitable relief.

       Authorize a court in an employment action under  
     FEHA to require employers to conduct employee and  
     supervisor training on the requirements of FEHA and  
     the rights and remedies available for violation.

6.    Existing law  makes it an unlawful employment practice  
  under FEHA 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.

       This bill  would require employers to provide  
  reasonable accommodations to  
  pregnant employees.

7.    Existing law  declares that it is an unlawful  
  employment practice for employers, including employer  
  agents, among others, to harass an employee  
  or applicant on the basis of various protected  
  characteristics.  However, independent  contractors are  
  not protected from harassment.
                                                             




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      This bill  would add a person providing services  
  pursuant to a contract, which the bill would define as:

       The person has the right to control the performance  
     of the contract for services and discretion as to the  
     manner of performance.

       The person is customarily engaged in an  
     independently established business.

       The person has control over the time and place the  
     work is performed, and performs work that requires a  
     particular skill not ordinarily used in the employer's  
     work.

8.    Existing law,  FEHA, prohibits employment  
  discrimination against individuals with physical  
  disabilities, mental disabilities, or medical conditions.  
   The FEHA applies to private employers of 15 or more  
  employees for discrimination on the basis of mental  
  disability, and private employers of 5 or more employees  
  for  discrimination on the basis of physical disability.

   This bill  would apply FEHA to private employers of five  
  or more employees for discrimination on the basis of  
  mental disability.

9.    Existing law  prohibits employment discrimination on  
  the basis of genetic characteristics.

        This bill  would clarify that genetic testing of  
employees is also prohibited.

10.    Existing law  does not contain a definition of  
"supervisor" in the FEHA.

     Existing law  defines "supervisor" under the California  
    Agricultural Labor Relations Act (CALRA) as any  
    individual having the authority, in the interest of the  
    employer, to hire, transfer, suspend, layoff, recall,  
    promote, discharge, assign, reward, or discipline other  
    employees, or the responsibility to direct them, or to  
    adjust their grievances, or effectively to recommend  
    that action, if in connection with the foregoing, the  
                                                             




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    exercise of that authority is not of a merely routine  
    or clerical nature, but requires the use of independent  
    judgment.

          This bill  would apply the CALRA definition of  
supervisor to FEHA.

                           COMMENT
  
1.   Stated need for legislation  

      The author states in support of this measure, "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 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." 

2.    Discussion of provisions which have drawn opposition  

     a)   Extending FEHA harassment protection to contract  
employees
  
     This bill would allow a person providing services  
     pursuant to a contract to sue for harassment under  
     FEHA.   This is a limited protection for contract  
     workers, as AB 1670 would not extend the full  
     employment discrimination prohibitions contained in  
     FEHA to them.

     The bill's supporters acknowledge that sexual  
                                                             




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     harassment laws were originally premised on the idea  
     that a woman could not get away from a harasser's  
     advances without losing her job, or suffering some  
     other adverse employment action.  Independent  
     contractors were excluded from the employment  
     protection statutes, as it was considered that they  
     could get away, not being bound as an employee to the  
     bad situation.  However, the dynamics of employment  
     have changed in recent years, they say.   Today  
     employers have substantially increased the use of   
     contract workers as a cost savings measure.  With the  
     switch from employment to contract status, "the duties  
     remained the same, only the benefits changed."    
     Situations where a contract employee could be  
     subjected to harassment without recourse include a  
     self-employed specialist such as a graphic designer,  
     who works "in-house" on a company's newsletter; or a  
     long-term  "independent contractor," who performs as a  
     traditional employee, but is never made a true  
     employee--thereby  saving the employer from paying  
     taxes and benefits.

     Opponents object to this provision fearing it  
     "obliterates the distinction between employees and  
     independent contractors."  The California  
     Manufacturer's Association believes, "This could  
     result in employers being held liable for the payment  
     of worker's compensation insurance, payroll taxes,  
     etc., plus any penalties and interest that may  
     accrue."  The Civil Justice Association of California  
     adds, "creating this exception to the independent  
     contractor status would simply open employers to  
     targeting for frivolous lawsuits by persons who have  
     little stake in trying to solve a potentially bad  
     worksite situation with something less than a lawsuit.  
      Where a serious harassment does occur, independent  
     contractors have recourse to laws relating to assault  
     and battery."

   b)   Raise the cap on employment discrimination damages  

        AB 1670 would increase the amount of damages and  
     administrative fines that may be awarded by the Fair  
     Employment and Housing Commission (the Commission) in  
     employment discrimination cases from $50,000 to  
                                                             




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     $150,000.   As noted above, there is no cap on the  
     amount of damages that may be awarded by the  
     Commission in housing discrimination cases.   
     
     According to the author, "It is hoped that this  
     augmentation in available damages that may be awarded  
     by the Commission under FEHA will make resolution of   
     discrimination complaints via the administrative  
     process rather than court more attractive to  
     plaintiffs.  By raising the cap on  
     damage awards in employment discrimination cases, the  
     Committee  
     hopes to encourage more plaintiffs to choose the less  
     cumbersome, and less expensive, option of  
     administrative action over the more lengthy and costly  
     court option."

     Opponents, such as the California Chamber of Commerce  
     claim that "the current level of $50,000 is a  
     legislative compromise, which gave to the DFEH the  
     authority to impose capped punitive damages.  If any  
     further  increase is appropriate, the same limit  
     should apply in employment cases filed with the civil  
     courts.  The Civil Justice Association of California  
     (CJAC) adds, "tripling the $50,000 cap to $150,000 on  
     damages and administrative fines assessed by the  
     Department of Fair Employment and Housing makes the  
     employer liability similar to that of civil court.   
     This provision removes an employer's incentive to use  
     administrative remedies and would needlessly add to  
     the already clogged California Courts."

        The current $50,000 was put in place through  
     passage of AB 311 (Moore), Ch. 911, Stats. 1992, which  
     provided the Commission constitutional authority to  
     award compensatory damages under FEHA,  capped at  
     $50,000.   Also included in AB 311 was a requirement  
     that the Commission report back to the Legislature on  
     the adequacy of the amount available to compensate  
     victims of discrimination and administrative fines  
     permitted by AB 311 by January 1, 1995.

     The 1995 Commission report provided important support  
     for at least raising the  $50,000 cap on damages and  
     administrative fines by stating that "The [current]  
                                                             




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     $50,000 ceiling may ... have the unintended effect of  
     encouraging complainants to file civil actions in the  
     courts rather than making use of the administrative  
     forum.  A primary reason for authorizing the  
     Commission to award emotional distress damages and  
     administrative fines was to encourage FEHA litigants  
     to remain in the administrative forum, which is  
     generally more timely and less costly to parties than  
     court litigation.  Because the $50,000 ceiling is  
     relatively low compared to the five-, six-, and even  
     seven-figure awards sometimes ordered in FEHA court   
     suits, complainants may be inclined to take their  
     cases to court rather than stay in the administrative  
     forum.  Thus, it may be appropriate to consider  
     raising the ceiling."  
         
    c)   Supervisor defined  

     FEHA prohibits harassment of an employee . . . by an  
     employee other than an agent or supervisor if the  
     entity, or its agents or supervisors, knows or should  
     have known of this conduct and fails to take immediate  
     and  
        appropriate corrective action.  There is no  
     definition of supervisor in FEHA.  This bill would  
     import into FEHA the definition of supervisor from the  
     CALRA.  

        According to the author, "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 the Fair Employment and  
     Housing Act."
        
        The Civil Justice Association of California opposes  
     the bill, in part because "This broad definition (of  
     supervisor) will greatly expand liability in the  
     workplace.  Employers will be vicariously liable for  
     alleged harassment or discrimination of supervisors,  
     even if the employer is unaware of the incident."    
     CJAC also opposes this provision of the bill in part  
     because of their belief that, "This bill extends the  
     liability of supervisors in discrimination and  
     harassment cases?" 
                                                             




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     In Fiol v. Doelstedt (App.2 Dist. 1996) 50 Cal.App.4th  
     1318, the court held that "The 'agent of an employer'  
     language in section 12940, subdivision (h)(3)(A) does  
     not impose personal liability on a non-harassing  
     supervisor?"  As this legislation only defines  
     supervisor, and does not address the Fiol holding on  
     personal liability, the opposition seems unfounded on  
     this point.

      d)   Accommodation of pregnant workers  

        AB 1670 would require an employer to reasonably  
     accommodate pregnant employees.  Current law prohibits  
     discrimination against a worker based upon her  
     temporary disability of being pregnant.  The law also  
     requires employers to make reasonable accommodation  
     for disabled employees, and it allows  pregnant women  
     to request a transfer to a less strenuous position as  
     a means of accommodation.   

     The author states in support of this provision, " FEHA  
     does not yet expressly permit less costly, and often  
     more desirable and appropriate,  accommodations for   
     pregnant employees that fall short of job transfer.   
     The proposed amendment to FEHA regarding pregnancy is  
     intended to  
     permit employers to allow pregnant employees to remain  
     in their  current positions for longer time periods  
     without the need for transfer, while assuring that  
     less costly and disruptive steps (such as simply  
     permitting more frequent restroom breaks or rest  
     periods) are taken for pregnant employees who do not  
     want or need to be transferred from their current  
     positions.

     The California Chamber of Commerce opposes this  
     provision, claiming, "There is no definition of what  
     reasonable accommodation is and this will lead to  
     increased litigation."   However, reasonable  
     accommodation is defined in existing law as, "making  
     existing facilities used by employees readily  
     accessible to, and usable by, individuals with  
     disabilities, or job restructuring, part-time or  
     modified work schedules, reassignment to a vacant  
                                                             




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     position, acquisition or modification of equipment or  
     devices." Government Code Section 12926 (m).   
     Therefore, this objection seems overstated.

     e)   Allowing courts to impose discrimination awareness  
     training as a remedy  

      This bill would provide 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.   
      FEHA currently authorizes a court 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 the Act. 

      According to the author, "This bill simply clarifies  
      that such relief may include "a requirement that the  
      employer conduct training for all employees,  
      supervisors, and management on the requirements of  
      [FEHA], the rights and remedies of those who allege a  
      violation of [the Act], and the employer's internal  
      grievance procedures."

      Both the California Chamber of Commerce and  
      California Manufacturer's Association (CMA) oppose  
      this provision, with CMA saying, "While the  
      employment discrimination may have been an isolated  
      case, a judge could require training to be conducted  
      for thousands of employees who are not involved at a  
      tremendous cost to the employer for no useful  
      purpose."

        f)    Expert witness fees  

        This bill would permit the court to award expert  
      witness fees to a prevailing party.  The author  
      points out that "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.  (Section  
      2000e-5(k) of Title VII).  In addition, this approach  
      is also consistent with the approach FEHA already  
      takes regarding attorney's fees and court costs; the  
                                                             




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      Act permits a court in any civil action brought under  
      FEHA to award, with certain exceptions, the  
      prevailing party  
            reasonable attorney's fees and costs."

       The California Manufacturer's Association opposes  
      this provision of the bill because, "allowing the  
      court to award expert witness fees to the prevailing  
      party will encourage dueling experts and increase  
      litigation."

        g)   Religious concerns seem misdirected  

      A number of opposition letters object to AB 1670  
      because of the writers' beliefs that it would extend  
      actions under FEHA to gay persons.  The Seventh-Day  
      Adventist Church State Council and Traditional Values  
      Coalition (TVC) also oppose the bill based upon this  
      belief, with TVC saying that, "this bill takes sexual  
      behavior, homosexuality and bisexuality, and grants  
      minority status to them.  Even though the author  
      stated on the Assembly Floor that the bill does not  
      effect (sic) homosexuality, that was not true.   
      Section 4 of AB 1670 would amend Section 12921 (b) of  
      the Government Code by adding 'any other basis  
      prohibited by Section 51 of the Civil Code is hereby  
      recognized as and declared to be a civil right.'   
      Section 51.7 of the Civil Code includes sexual  
      orientation."

      This conclusion seems to stem from a mistake of  
      statutory construction.   It is axiomatic that  
      expressio unius est exclusio alterius, the specific  
      expression of one thing excludes all others.  Pratt,  
      Legal Writing: A Systematic Approach (2d Ed. 1990) p.  
      341.  Under this rule of statutory construction a  
      reference to Section 51 does not extend to cover any  
      other section of law.  This is true unless the bill  
      states an intention to extend beyond the referenced  
      provision, as may be accomplished by inclusion of a  
      phrase such as et sequentes (and the following), or a  
      listing of the additional provisions intended to be  
      covered.  

      In this instance, the bill only references Section  
                                                             




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      51.  Without any indication in the language of the  
      bill, and with the author clearly stating that the  
      bill does not cover homosexuals, the concern that  
      this bill somehow extends gay rights seems misplaced.

      It should be noted that the Committee is also in  
      receipt of letters from churches and religious  
      organizations which support AB 1670.  For example,  
      this from the Fresno Metro Ministry. "Fresno Metro  
      Ministry believes that all persons should be free  
      from harassment and discrimination in their home and  
      workplace and we think AB 1670 goes a long way  
      towards achieving that goal.  In its thirty years,  
      Fresno Metro Ministry has seldom taken stands on  
      specific legislative proposals.  However, in this  
      instance we feel compelled to do so.  As a  
      faith-based organization, the board and members of  
      Fresno Metro Ministry have become increasingly  
      concerned about the negative tenor and tactics of  
      distortion and intimidation some in the  
      religious-political community are using?We find these  
      tactics to be objectionable and harmful to the  
      community, and not reflective of many members of the  
      faith community."

3.    Major non-controverted provisions of the bill  
                                                         
   a)    Protection against discrimination based on  
     association and perceived membership in a protected  
     class

      The bill would provide 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 the  
     perception that a victim is a member of 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.

      In addition, the bill would state that FEHA's  
      protections against housing and employment  
      discrimination cover associational rights as well,  
      i.e., discrimination based upon perceptions about  
                                                             




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      whom one may be associating with will now be  
      protected under the Act.   The author offers that  
      discrimination involving the improper firing of an  
      African-American woman because she was dating a white  
      man, or discrimination against a prospective renter  
      because his friends are of a different racial  
      background, appropriately could be brought within  
      FEHA's protective umbrella.

       b)    Prohibition against harassment in housing  

      This bill would declare 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.  According to the author, AB  
      1670 is intended to eliminate the current statutory  
      ambiguity noted by the court and adds the term   
      "harassment" to that part of the Act.  The bill also  
      clarifies that the opportunity to seek, obtain, and  
      hold housing free from  
       discrimination is a civil right of equal import as  
      that right already expressed regarding  
      discrimination-free employment.

      This provision 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.  (  
      Id. at 782.)  In Brown, a tenant was subject to  
      severe instances of sexual harassment by her  
      landlord, who repeatedly pressured her for sexual  
      relations in exchange for favorable rent.  The  
      appellate court clarified that even though FEHA does  
      not expressly mention harassment in its housing  
      discrimination proscriptions, the Act covers it as a  
      form of prohibited discrimination. 

        c)   Private "equitable" remedy against entities  
which receive state funds  
 
      AB 1670 would provide that the prohibition against  
      discrimination by agencies or entities receiving  
      state funds is enforceable through a civil action for  
                                                             




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      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, according to the author, "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.

      As required by current Government Code Section  
      11139.5, the Secretary of the Health and Human  
      Services, together with the Fair Employment and  
      Housing Commission, have established regulations  
      determining what persons are protected by these  
      provisions and what practices are discriminatory.   
      (See 22 Cal. Code Reg. Section 98000 et. seq.).   
      Although the Commission's  exclusive authority to  
      fashion remedies for discrimination is not limited by  
      these provisions, there has been some confusion in  
      the courts about the ability to bring a private cause  
      of action to enforce the prohibition against  
      discrimination by agencies or entities receiving  
      state funds.  At least one California court of appeal  
      has held that there is no such right under Government  
      Code Section 11135.  
      Arriaga v. Loma Linda University  (1992) 10 Cal.App.  
      4th 1556.  However, a  
      panel of the Ninth Circuit Court of Appeal has held  
      that such a private right is available.  Greater Los  
      Angeles Council on Deafness v. Zolin  (9th Cir. 1987)  
      812 F.2d 1103, 1113-1114.

      "The author states that, "this bill does not settle  
      that conflict about available enforcement remedies,  
      but it does clarify that the prohibition against  
                                                             




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      discrimination by agencies or entities receiving  
      state funds is at least enforceable through a civil  
      action for equitable relief.  This will permit  
      private individuals to seek judicial relief to force  
      agencies or entities receiving state funds to halt  
      their discriminatory practices."

4.   Prior related legislation  

  SB 48 (Solis), of 1998, as passed by this Committee,  
  would have clarified that "harassment" includes creation  
  of a hostile work environment, and specifying that the  
  view point is from the reasonable person of the victim's  
  same gender. 
  These provisions were later amended out.

  SB 1251 (Calderon), of 1998, as passed by this Committee,  
  would have allowed expert witness fees as a part of costs  
  awarded to a prevailing party, and removed the cap on  
  damages in employment discrimination under FEHA.  The  
  bill was subsequently gutted and amended into an  
  educational reform bill.

  SB 654 (Johnston), Ch. 99 Stats. of 1998, prohibited  
  discrimination under FEHA based upon genetic  
  characteristics.

  AB 310 (Kuehl), of 1998 as passed by this Committee,  
  would have:

       Defined employer to exclude religious corporations,  
     associations, educational institutions, or societies  
     with respect to the employment of individuals of a  
     particular religion to perform work connected with the  
     carrying on the activities of the religious group (the  
     current federal standard);

       Defined "supervisor," and made a supervisor  
     individually liable if they fail to act upon claims of  
     harassment of an employee by another employee; 

       Extended the prohibition of sexual harassment to  
     include a person who provides services under contract;  


                                                             




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       Allowed the Department of Fair Employment and  
     Housing (DFEH) to undertake independent investigations  
     of employment and housing discrimination;

       Required that an employer reasonably accommodate a  
     pregnant female;

       Defined "harassment" and clarify that it is viewed  
     from the reasonable person of the victim's same gender  
     standard; 

       Prohibited employers from engaging in genetic  
     testing, except where a bona fide occupational  
     qualification exists, and prohibited genetic trait  
     discrimination; 

       Lifted the monetary cap on the award of actual  
     damages for pain and suffering in employment  
     discrimination cases; 

       Allowed a  court to award expert witness fees to a  
     prevailing party, and; 

       Provided that the FEHA does not prohibit a city and  
     county,  or other political subdivision of this state  
     from  providing or maintaining greater protections for  
     the  classes of persons protected by the provisions  
     relating to housing discrimination.

  Then-Governor Wilson vetoed AB 310, based upon the  
  independent contractor liability provision of the bill.   
  He stated, "this bill would, among other provisions, seek  
  to extend liability so as to hold employers liable for  
  the harassment of independent contractors.  California's  
  discrimination laws are predicated on the traditional  
  employer and employee relationship, which under both the  
  Labor and Government Codes require certain duties and  
  responsibilities.  This bill would give protection  
  against discrimination to non-employees who are  
  independent contractors engaged in independently  
  established businesses with, among other things, the  
  right to control how and
  when their work is performed."

Support:  American Federation of State, County and  
                                                             




AB 1670 (Assembly Judiciary Committee)
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       Municipal Employees; California School Employees  
       Association; California National Organization for  
       Women; Equal Rights Advocates; Legal Aid Society of  
       San Francisco; Lawyers Committee for Civil Rights of  
       the San Francisco Bay Area;  California Conference  
       of the Amalgamated Transit Union; Engineers and  
       Scientists of California; Region 8 States Council of  
       the United Food and Commercial Workers; Hotel  
       Employees, Restaurant Employees International Union;  
       California Conference of Machinists; California  
       Commission On The Status Of Women; American  
       Association of University Women; Consumer Attorneys  
       of California

Opposition:  California Employment Law Council; Civil  
          Justice Association of California; Seventh-day  
          Adventist Church State Council; Traditional  
          Values Coalition; California Manufacturers  
          Association; California Chamber of Commerce;  
          numerous individuals

                           HISTORY
  
Source:  California Office of the Attorney General;  
      California Fair Employment and Housing Commission;  
      American Civil Liberties Union; California Labor  
      Federation AFL-CIO; California Civil Rights Coalition

Related Pending Legislation:  None Known

Prior Legislation:  SB 48 (Solis), of 1998, subsequently  
amended to remove 
                                 relevant provisions and  
vetoed;  SB 1254 (Calderon)  
                                 subsequently amended into  
an educational reform measure  
                                 Ch. 400, Stats. of 1998;   
SB 654 (Johnston), Ch. 99 Stats. of 1998, 
                                 AB 310 (Kuehl) vetoed

Prior Vote:  Assembly Judiciary Committee 9-3; Assembly  
Floor 41-31

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