BILL ANALYSIS                                                                                                                                                                                                    



                                                          AB 1670
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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  








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  (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  








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  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  








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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. 








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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  








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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