BILL ANALYSIS AB 1670 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1670 (Judiciary) As Amended September 3, 1999 Majority vote ASSEMBLY: 41-31 (June 1, 1999) SENATE: 21-5 (September 8, 1999) Original Committee Reference: JUD. 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 , among other things: 1)Increases 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 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, as specified, 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. The Senate amendments : 1)Specify that the obligation of employers to provide reasonable accommodations to pregnant employees applies only if the employee requests such an accommodation with the advice of her health care provider. 2)Make various technical, clarifying and conforming changes. 3)Add language to avoid chaptering out problems with SB 1185 AB 1670 Page 2 (Johnston), SB 1098 (Burton) and SB 1148 (Burton). 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 Fair Employment and Housing 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 AB 1670 Page 3 hold employment without discrimination on specified bases. However, FEHA does not expressly state that its protections against housing and employment discrimination cover 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 the Act. AS PASSED BY THE ASSEMBLY , the bill strengthened and clarified various civil rights protections afforded by the Fair Employment and Housing Act and other civil rights statutes. FISCAL EFFECT : Unknown COMMENTS : This bill contains many of the provisions that comprised the Chairperson's AB 310 of last year. That comprehensive civil rights legislation was passed by the Legislature and vetoed by then-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. The bill increases 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 $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 AB 1670 Page 4 employment cases was approved by the Legislature in 1991 in SB 827 (Bergeson) which would have given the Commission the statutory authority to assess actual damages up to $150,000. However, then-Governor Wilson vetoed that legislation. 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). The 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 the Act, "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, the Act 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. AB 1670 Page 5 This bill also seeks to clarify and strengthen employer responsibilities for accommodating pregnant employees. The measure requires employers to provide reasonable and measured accommodations to pregnant employees not currently specified in FEHA, provided the employee requests such an accommodation with the advice of her health care provider. 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 amendment 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. In addition, this legislation clarifies that genetic testing is prohibited under FEHA. Current law, pursuant to legislation last year by Senator Johnston, SB 654 (Stats. 1998, Ch. 99), 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. The bill eliminates the current discrepancy in FEHA between the Act's treatment of physical and mental disabilities. It provides that employers of five or more employees will now be subject to the Act's prohibition of discrimination on the basis of mental disabilities, as is already the case with respect to physical disabilities. The 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 AB 1670 Page 6 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 Fair Employment and Housing Commission jurisdiction over cases involving claimed violations of Section 51.5 of the Unruh Civil Rights Act. In addition, the 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 the Act. The legislation 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 FN: 0003532