The Unruh Civil Rights Act generally prohibits business establishments from discriminating on specified bases.

The California Fair Employment and Housing Act prohibits discrimination in housing and employment on specified bases and provides procedures for enforcement by the Department of Fair Employment and Housing (department).

Existing law specifies that while it is the intent of the Legislature that the California Fair Employment and Housing Act occupy the field of regulation of discrimination in employment and housing, nothing in the act shall be construed to limit or restrict the application of the Unruh Civil Rights Act.

This bill would provide that a local government entity is permitted under the California Fair Employment and Housing Act to refer a person alleging discrimination to the department and to provide the person with relevant information and resources, as appropriate.

The bill would require the department, by April 1, 2018, to establish an advisory group, as specified, to determine the feasibility of authorizing local government entities to also enforce antidiscrimination statutes. The bill would require the advisory group, if it determines that such enforcement is feasible, to develop an implementation plan and draft proposed legislation for presentation to the Legislature by December 31, 2018.

The bill would provide legislative findings and declarations in support of these provisions.

The Unruh Civil Rights Act generally prohibits business establishments from discriminating on specified bases.

The California Fair Employment and Housing Act prohibits discrimination in housing and employment on specified bases and provides procedures for enforcement by the Department of Fair Employment and Housing (department).

Existing law specifies that while it is the intent of the Legislature that the California Fair Employment and Housing Act occupy the field of regulation of discrimination in employment and housing, nothing in the act shall be construed to limit or restrict the application of the Unruh Civil Rights Act.

This bill would provide that a local government entity is permitted under the California Fair Employment and Housing Act to refer a person alleging discrimination to the department and to provide the person with relevant information and resources, as appropriate.

The bill would require the department, by April 1, 2018, to establish an advisory group, as specified, to determine the feasibility of authorizing local government entities to also enforce antidiscrimination statutes. The bill would require the advisory group, if it determines that such enforcement is feasible, to develop an implementation plan and draft proposed legislation for presentation to the Legislature by December 31, 2018.

The bill would provide legislative findings and declarations in support of these provisions.

The Unruh Civil Rights Act generally prohibits business establishments from discriminating on specified bases.

The California Fair Employment and Housing Act prohibits discrimination in housing and employment on specified bases and provides procedures for enforcement by the Department of Fair Employment and Housing (department).

Existing law specifies that while it is the intent of the Legislature that the California Fair Employment and Housing Act occupy the field of regulation of discrimination in employment and housing, nothing in the act shall be construed to limit or restrict the application of the Unruh Civil Rights Act.

The bill would require the department, by April 1, 2018, to convene establish an advisory group, as specified, to determine the feasibility of authorizing local government entities to also enforce antidiscrimination statutes. The bill would, by December 31, 2018, would require the advisory group group, if it determines that such enforcement is feasible, to develop an implementation plan and draft proposed legislation for presentation to the Legislature if it finds that local enforcement would be feasible. by December 31, 2018.

The Unruh Civil Rights Act generally prohibits business establishments from discriminating on specified bases.

The California Fair Employment and Housing Act prohibits discrimination in housing and employment on specified bases. bases and provides procedures for enforcement by the Department of Fair Employment and Housing (department).

Existing law specifies that while it is the intent of the Legislature that the California Fair Employment and Housing Act occupy the field of regulation of discrimination in employment and housing, nothing in the act shall be construed to limit or restrict the application of the Unruh Civil Rights Act.

This bill would also specify that nothing in the California Fair Employment and Housing Act shall be construed to limit or restrict efforts by local entities to enforce state law prohibiting discrimination against classes of persons covered by the act in employment and housing. require the department, by April 1, 2018, to convene an advisory group, as specified, to determine the feasibility of authorizing local government entities to also enforce antidiscrimination statutes. The bill would, by December 31, 2018, require the advisory group to develop an implementation plan and draft proposed legislation for presentation to the Legislature if it finds that local enforcement would be feasible.

Under existing law, the Department of Industrial Relations collects, compiles, and presents facts and statistics relating to the condition of labor in the state. Existing law provides that, except as specified, no use shall be made in the departments reports of the names of persons supplying information, and makes any agent or employee of the department who violates this provision guilty of a misdemeanor.

This bill would also prohibit the use of the identities of persons supplying information to the department.

Because the bill would expand the definition of a crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 VETO  

Bill No: SB 491

Author:

:

Vote: 7

SENATE JUDICIARY COMMITTEE: 7-0, 5/9/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 37-0, 5/26/17 (Consent)

AYES: Allen, Anderson, Atkins, Bates, Beall, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: Berryhill, Lara, Morrell

SENATE FLOOR: 40-0, 9/13/17

AYES: Allen, Anderson, Atkins, Bates, Beall, Berryhill, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

ASSEMBLY FLOOR: 72-0, 9/7/17 - See last page for vote

SUBJECT:

SOURCE: Los Angeles Black Workers Center

SEIU

DIGEST:

This bill instructs the California Department of Fair Employment and Housing (DFEH) to establish an advisory group to explore the possibility of authorizing local governments to enforce the state’s anti-discrimination laws by surveying existing local practices, studying the feasibility of such a change, and reporting back to the Legislature with an implementation plan and draft legislation.

ANALYSIS:

Existing law:

1. Prohibits, under the Fair Employment and Housing Act (FEHA), discrimination in housing and employment on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other categories, in the areas of housing and employment. (Gov. Code Secs. 12900 -12996.)
2. Establishes the DFEH with responsibility for enforcing FEHA. (Gov. Code Sec. 12930.)
3. Expresses the intent of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of FEHA, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state. (Gov. Code Sec. 12993(c).)

This bill:

1. Requires DFEH to establish an advisory group to study the feasibility of authorizing local government entities to enforce antidiscrimination statutes. Specifies that the advisory group shall be established no later than April 1, 2018, and shall consist of at least one member of DFEH and civil rights, employer, and employee advocates. If the advisory group concludes that enforcement by local entities is feasible, it shall draft proposed legislation and report to the Legislature, as specified.
2. Requires the study referenced above to include a survey of local government entities to inquire about the types of activities that they currently engage in or expect to engage in relative to FEHA, including the following activities: providing culturally appropriate outreach and education about rights under FEHA; advising persons about statutory time limits for complaints; referring persons to DFEH; investigating and fact gathering, including gathering through subpoenas; visiting worksites; collecting data; offering mediation; and partnering with community-based organizations.
3. Clarifies that while the Legislative intent in enacting FEHA was to occupy the field in terms of regulation of employment and housing discrimination, this intent shall not be construed to limit the ability of a local government entity to refer a person alleging discrimination to DFEH for information on the manner and necessity of filing a proper and timely complaint; to assist that person in doing so to the extent permitted by law; and to provide relevant information and resources.
4. Makes findings and declarations relating to the extent of workplace discrimination, the negative impact of high investigator caseloads within DFEH, and the corresponding need to enhance the ability of local governments to support DFEH anti-discrimination efforts and to consider, through the establishment of an advisory group, authorizing local enforcement of FEHA protections.

Background

FEHA has been described as one of the strongest anti-discrimination laws in the nation.^[1] Its purpose is to prohibit and punish disparate treatment of any Californian on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other grounds, in the areas of housing and employment. (Gov. Code Sec. 12920.)

According to a 2013 report by the California Senate Office of Oversight and Outcomes, however: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.”^[2] The report concluded that “[o]ver the long run, DFEH and state leaders must come to grips with the chasm between the broad legal mandate to provide effective remedies – including full investigations into all proper claims alleging discrimination – and the relatively miniscule allotment of resources appropriated for that purpose in the state budget.”^[3]

This bill directs an advisory group, to be established by DFEH and consisting of representatives from the civil rights, labor, and employment fields, to study the feasibility of one possible way to address the need for greater resources to enforce FEHA: authorizing local government entities to take on some of the work.

Comments

Reasons for the study. As initially drafted, this bill simply clarified that local enforcement of FEHA is not preempted. Given the importance of civil rights protections and the fact that discrimination complaints currently outstrip DFEH’s enforcement capacity, the concept of authorizing local government entities to help out immediately has strong appeal. Local enforcement could potentially result in greater resources dedicated to enforcement, more geographically convenient points of contact for complainants and respondents, greater trust in the system, and swifter response times.

At the same time, there are a number of factors and details that should be considered before making such a significant change, since they could, contrary to the intention of this bill, result in weaker, not stronger civil rights enforcement. For instance:

• Decentralizing enforcement could lead to disparate enforcement across the state. Different jurisdictions will inevitably devote different resource levels to civil rights enforcement. It is also likely that different jurisdictions might reach different conclusions about the proper interpretation of FEHA, resulting in some places with greater protections for civil rights and other places with weaker protections.
• Decentralizing enforcement could result in the loss of useful data. Currently, DFEH collects data on the number and the type of discrimination complaints it receives. Since DFEH is currently the sole point of entry for discrimination complaints, this data is comprehensive for the state (though obviously, it does not include instances of discrimination that go unreported.) As such, the data provides useful information for policy makers and the public. From it, discrimination trends can be identified and resources can be directed accordingly. Absent some mechanism for capturing data from local agencies, decentralizing FEHA enforcement would render this data far less comprehensive and reliable.
• Some funding for civil rights enforcement could be disrupted. DFEH receives some federal funds for its work based on agreements it has with its federal counterparts, the U.S. Department of Housing and Urban Development as well as the Equal Employment Opportunity Commission. Turning some of DFEH’s work over to local entities could have impacts on that federal funding. That could, at least potentially, lead to less enforcement overall.
• Local enforcement of FEHA might lead to a reduction in budgetary support for DFEH. If, instead of viewing local enforcement as a supplement to DFEH, policy makers decided that local enforcement could partially or fully displace DFEH, the net result might be a no change or even a decline in overall levels of civil rights enforcement.

None of these issues necessarily presents insurmountable challenges. Upon study, some of them may turn out not to be problems at all. Given how vital effective civil rights enforcement is, however, if decentralization of FEHA enforcement is to take place, it is essential that it is done right. As stakeholders, users, and operators of the current system, the members of the advisory group envisioned by this bill would have expertise that could be useful for thinking through all of the possible issues presented by local enforcement of FEHA, working out solutions for any potential problems, and reporting back to the Legislature with a plan for moving forward effectively.

Related/Prior Legislation

AB 2534 (Shelley, 2000) would have provided that local governments are not pre-empted from providing or maintaining greater protections against discrimination than FEHA. AB 2534 died in the Assembly Judiciary Committee.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee, unknown GF costs to DFEH to establish the advisory group and conduct the study. Costs would depend on the scope and level of detail of the study that is determined by the advisory group. Given the requirements and timelines established in the bill, it is likely that costs would be in the tens of thousands of dollars.

SUPPORT: (Verified 10/25/17)

Los Angeles Black Workers Center (co-source)

SEIU (co-source)

African American Cultural Center

Alliance of Boys and Men of Color

Alliance for Boys and Men of Color, Riverside County

Anti-Defamation League

Black Community, Clergy, and Labor Alliance

California Labor Federation

Courage Campaign

Fathers & Families of San Joaquin

IDEPSCA

Jerome Horton, Board Member, Board of Equalization

Koreatown Immigrant Workers Alliance

Latino Coalition for a Healthy California

NAACP, California Conference

National Employment Law Project

PolicyLink

Restaurant Opportunities Center of Los Angeles

Shields for Families

Strategic Concepts in Organizing and Policy Education

United Food and Commercial Workers Union, Local 770

Voices for Progress Education

Warehouse Worker Resource Center

Western Center on Law and Poverty

Women's Foundation of California

OPPOSITION: (Verified 10/25/17)

Department of Finance

ARGUMENTS IN SUPPORT: According to the author:

DFEH receives an average of 24,000 discrimination claims every year and even the simplest claims require a minimum of 90 days to process and initiate action. Added to this, DFEH has seen its resources and funding dwindle since FEHA was passed, which has hampered its ability to investigate and resolve claims. This means that those who need FEHA’s protections are often left in limbo for prolonged periods of time, which adds to their dilemma.

DFEH attempted to streamline its claims filing system with an online reporting option, but this method has been troubled with technical issues and long wait-times. Taken together, the DFEH’s limited resources are overstrained and often unable to provide protections for vulnerable groups who are supposed to be safeguarded under FEHA. Under current law, local governments are preempted by the state from participating in FEHA investigation and enforcement, thus denying a critical resource to those filing FEHA claims….

SB 491 offers a way to address these issues in an effective manner with minimal cost to the State. Allowing local governments to join in the fight against discrimination by enabling them to investigate and enforce the provisions of FEHA will lessen the workload of the DFEH while providing local and available resources to the victims of these injustices.

In support, the Los Angeles Black Worker Center and the Service Employees International Union write:

California enacted the California Fair Employment Act (FEHA) in 1959 as an effort to promote civil rights and to protect people that were often victims of employment discrimination. Since its enactment, FEHA has been unable to keep up with the high volumes of claims filed with the California Department of Fair Employment and Housing (DFEH), which is the entity that enforces FEHA….

SB 491 would address this by allowing county and city government to help groups covered under FEHA. This will ease the administrative burden on DFEH and ensure California’s vulnerable populations are not discriminated against.

In further support, the United Food and Commercial Workers Union – Western States Council writes:

Any form of discrimination robs people of their human dignity and often also of their financial stability and their health. When discrimination is allowed to ensue unchecked it also robs our communities of valuable opportunities to be better and to be stronger. The Fair Employment and Housing Act outlaws discrimination. The Act is silent on the question of whether municipalities can participate in the enforcement of the Act, neither granting permission nor banning local enforcement activities.

Recently published research demonstrates that discrimination in hiring remains a persistent challenge for Black workers. 17% of Black workers are unemployed as compared to 9% of white workers in LA County. While Black Americans are more educated than previous generations, they still earn only three quarters of what white workers earn. Relative to their share of the overall labor force, Black workers are underrepresented in professional, construction, manufacturing, and food service jobs….

Lack of enforcement of anti-discrimination laws is a problem that is well documented and if ever there were a time to reverse that pattern, it is now.

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 491 without my signature.

This bill directs the Department of Fair Employment and Housing to establish an advisory group to conduct a study regarding the feasibility of local enforcement of employment antidiscrimination statutes.

The Fair Employment and Housing Act (FEHA) has preempted local governments from enforcing the provisions of this law for decades. I agree with the author that it is time for the state to reassess whether the state should allow local authorities to enforce FEHA. Unfortunately, as currently drafted, the bill is too broad and it is not clear that the advisory group would focus solely on employment protections governed by FEHA.

I am directing the Department of Fair Employment and Housing to create an advisory group to explore allowing the provisions of FEHA to be enforced by local authorities and prepare a report to my office and the Legislature with findings and recommendations by December 31, 2018.

ASSEMBLY FLOOR: 72-0, 9/7/17

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Daly, Eggman, Flora, Fong, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Bigelow, Brough, Dahle, Gallagher, Harper, Melendez

Prepared by:

1/2/18 10:09:54

**** END ****

1. Department of Fair Employment and Housing: Underfunding and Misguided Policies Compromise Civil Rights Mission (Dec. 18, 2013) California Senate Office of Oversight and Outcomes, p. 1 <http://sooo.senate.ca.gov/ sites/sooo.senate.ca.gov/files/fair%20employment%20and%20housing%20final.pdf> (as of Apr. 29, 2017). ↑

2. Ibid. ↑

3. Id. at pp. 1-2 ↑

 UNFINISHED BUSINESS  

Bill No: SB 491

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 5/9/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 37-0, 5/26/17 (Consent)

AYES: Allen, Anderson, Atkins, Bates, Beall, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: Berryhill, Lara, Morrell

ASSEMBLY FLOOR: 72-0, 9/7/17 - See last page for vote

SUBJECT:

SOURCE: Los Angeles Black Workers Center

SEIU

DIGEST:

This bill instructs the California Department of Fair Employment and Housing (DFEH) to establish an advisory group to explore the possibility of authorizing local governments to enforce the state’s anti-discrimination laws by surveying existing local practices, studying the feasibility of such a change, and reporting back to the Legislature with an implementation plan and draft legislation.

Assembly Amendments (1) make a series of findings about the need for greater resources to combat discrimination in California; (2) clarify that local government entities are not pre-empted from providing information, referrals, and assistance regarding allegations of civil rights violations; and (3) set forth a list of information that the advisory group should gather as part of its study.

ANALYSIS:

Existing law:

1. Prohibits, under the Fair Employment and Housing Act (FEHA), discrimination in housing and employment on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other categories, in the areas of housing and employment. (Gov. Code Secs. 12900 -12996.)
2. Establishes the DFEH with responsibility for enforcing FEHA. (Gov. Code Sec. 12930.)
3. Expresses the intent of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of FEHA, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state. (Gov. Code Sec. 12993(c).)

This bill:

1. Requires DFEH to establish an advisory group to study the feasibility of authorizing local government entities to enforce antidiscrimination statutes. Specifies that the advisory group shall be established no later than April 1, 2018, and shall consist of at least one member of DFEH and civil rights, employer, and employee advocates. If the advisory group concludes that enforcement by local entities is feasible, it shall draft proposed legislation and report to the Legislature, as specified.
2. Requires the study referenced above to include a survey of local government entities to inquire about the types of activities that they currently engage in or expect to engage in relative to FEHA, including the following activities: providing culturally appropriate outreach and education about rights under FEHA; advising persons about statutory time limits for complaints; referring persons to DFEH; investigating and fact gathering, including gathering through subpoenas; visiting worksites; collecting data; offering mediation; and partnering with community-based organizations.
3. Clarifies that while the Legislative intent in enacting FEHA was to occupy the field in terms of regulation of employment and housing discrimination, this intent shall not be construed to limit the ability of a local government entity to refer a person alleging discrimination to DFEH for information on the manner and necessity of filing a proper and timely complaint; to assist that person in doing so to the extent permitted by law; and to provide relevant information and resources.
4. Makes findings and declarations relating to the extent of workplace discrimination, the negative impact of high investigator caseloads within DFEH, and the corresponding need to enhance the ability of local governments to support DFEH anti-discrimination efforts and to consider, through the establishment of an advisory group, authorizing local enforcement of FEHA protections.

Background

FEHA has been described as one of the strongest anti-discrimination laws in the nation.^[1] Its purpose is to prohibit and punish disparate treatment of any Californian on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other grounds, in the areas of housing and employment. (Gov. Code Sec. 12920.)

According to a 2013 report by the California Senate Office of Oversight and Outcomes, however: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.”^[2] The report concluded that “[o]ver the long run, DFEH and state leaders must come to grips with the chasm between the broad legal mandate to provide effective remedies – including full investigations into all proper claims alleging discrimination – and the relatively miniscule allotment of resources appropriated for that purpose in the state budget.”^[3]

This bill directs an advisory group, to be established by DFEH and consisting of representatives from the civil rights, labor, and employment fields, to study the feasibility of one possible way to address the need for greater resources to enforce FEHA: authorizing local government entities to take on some of the work.

Comments

Reasons for the study. As initially drafted, this bill simply clarified that local enforcement of FEHA is not preempted. Given the importance of civil rights protections and the fact that discrimination complaints currently outstrip DFEH’s enforcement capacity, the concept of authorizing local government entities to help out immediately has strong appeal. Local enforcement could potentially result in greater resources dedicated to enforcement, more geographically convenient points of contact for complainants and respondents, greater trust in the system, and swifter response times.

At the same time, there are a number of factors and details that should be considered before making such a significant change, since they could, contrary to the intention of this bill, result in weaker, not stronger civil rights enforcement. For instance:

• Decentralizing enforcement could lead to disparate enforcement across the state. Different jurisdictions will inevitably devote different resource levels to civil rights enforcement. It is also likely that different jurisdictions might reach different conclusions about the proper interpretation of FEHA, resulting in some places with greater protections for civil rights and other places with weaker protections.
• Decentralizing enforcement could result in the loss of useful data. Currently, DFEH collects data on the number and the type of discrimination complaints it receives. Since DFEH is currently the sole point of entry for discrimination complaints, this data is comprehensive for the state (though obviously, it does not include instances of discrimination that go unreported.) As such, the data provides useful information for policy makers and the public. From it, discrimination trends can be identified and resources can be directed accordingly. Absent some mechanism for capturing data from local agencies, decentralizing FEHA enforcement would render this data far less comprehensive and reliable.
• Some funding for civil rights enforcement could be disrupted. DFEH receives some federal funds for its work based on agreements it has with its federal counterparts, the U.S. Department of Housing and Urban Development as well as the Equal Employment Opportunity Commission. Turning some of DFEH’s work over to local entities could have impacts on that federal funding. That could, at least potentially, lead to less enforcement overall.
• Local enforcement of FEHA might lead to a reduction in budgetary support for DFEH. If, instead of viewing local enforcement as a supplement to DFEH, policy makers decided that local enforcement could partially or fully displace DFEH, the net result might be a no change or even a decline in overall levels of civil rights enforcement.

None of these issues necessarily presents insurmountable challenges. Upon study, some of them may turn out not to be problems at all. Given how vital effective civil rights enforcement is, however, if decentralization of FEHA enforcement is to take place, it is essential that it is done right. As stakeholders, users, and operators of the current system, the members of the advisory group envisioned by this bill would have expertise that could be useful for thinking through all of the possible issues presented by local enforcement of FEHA, working out solutions for any potential problems, and reporting back to the Legislature with a plan for moving forward effectively.

Related/Prior Legislation

AB 2534 (Shelley, 2000) would have provided that local governments are not pre-empted from providing or maintaining greater protections against discrimination than FEHA. AB 2534 died in the Assembly Judiciary Committee.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee, unknown GF costs to DFEH to establish the advisory group and conduct the study. Costs would depend on the scope and level of detail of the study that is determined by the advisory group. Given the requirements and timelines established in the bill, it is likely that costs would be in the tens of thousands of dollars.

SUPPORT: (Verified 9/11/17)

Los Angeles Black Workers Center (co-source)

SEIU (co-source)

African American Cultural Center

Alliance of Boys and Men of Color

Alliance for Boys and Men of Color, Riverside County

Anti-Defamation League

Black Community, Clergy, and Labor Alliance

California Labor Federation

Courage Campaign

Fathers & Families of San Joaquin

IDEPSCA

Jerome Horton, Board Member, Board of Equalization

Koreatown Immigrant Workers Alliance

NAACP, California Conference

National Employment Law Project

PolicyLink

Restaurant Opportunities Center of Los Angeles

Shields for Families

Strategic Concepts in Organizing and Policy Education

United Food and Commercial Workers Union, Local 770

Voices for Progress Education

Warehouse Worker Resource Center

Western Center on Law and Poverty

Women's Foundation of California

OPPOSITION: (Verified 9/11/17)

Department of Finance

ARGUMENTS IN SUPPORT: According to the author:

DFEH receives an average of 24,000 discrimination claims every year and even the simplest claims require a minimum of 90 days to process and initiate action. Added to this, DFEH has seen its resources and funding dwindle since FEHA was passed, which has hampered its ability to investigate and resolve claims. This means that those who need FEHA’s protections are often left in limbo for prolonged periods of time, which adds to their dilemma.

DFEH attempted to streamline its claims filing system with an online reporting option, but this method has been troubled with technical issues and long wait-times. Taken together, the DFEH’s limited resources are overstrained and often unable to provide protections for vulnerable groups who are supposed to be safeguarded under FEHA. Under current law, local governments are preempted by the state from participating in FEHA investigation and enforcement, thus denying a critical resource to those filing FEHA claims….

SB 491 offers a way to address these issues in an effective manner with minimal cost to the State. Allowing local governments to join in the fight against discrimination by enabling them to investigate and enforce the provisions of FEHA will lessen the workload of the DFEH while providing local and available resources to the victims of these injustices.

In support, the Los Angeles Black Worker Center and the Service Employees International Union write:

California enacted the California Fair Employment Act (FEHA) in 1959 as an effort to promote civil rights and to protect people that were often victims of employment discrimination. Since its enactment, FEHA has been unable to keep up with the high volumes of claims filed with the California Department of Fair Employment and Housing (DFEH), which is the entity that enforces FEHA….

SB 491 would address this by allowing county and city government to help groups covered under FEHA. This will ease the administrative burden on DFEH and ensure California’s vulnerable populations are not discriminated against.

In further support, the United Food and Commercial Workers Union – Western States Council writes:

Any form of discrimination robs people of their human dignity and often also of their financial stability and their health. When discrimination is allowed to ensue unchecked it also robs our communities of valuable opportunities to be better and to be stronger. The Fair Employment and Housing Act outlaws discrimination. The Act is silent on the question of whether municipalities can participate in the enforcement of the Act, neither granting permission nor banning local enforcement activities.

Recently published research demonstrates that discrimination in hiring remains a persistent challenge for Black workers. 17% of Black workers are unemployed as compared to 9% of white workers in LA County. While Black Americans are more educated than previous generations, they still earn only three quarters of what white workers earn. Relative to their share of the overall labor force, Black workers are underrepresented in professional, construction, manufacturing, and food service jobs….

Lack of enforcement of anti-discrimination laws is a problem that is well documented and if ever there were a time to reverse that pattern, it is now.

Prepared by: Timothy Griffiths / JUD. / (916) 651-4113

9/11/17 16:03:32

**** END ****

1. Department of Fair Employment and Housing: Underfunding and Misguided Policies Compromise Civil Rights Mission (Dec. 18, 2013) California Senate Office of Oversight and Outcomes, p. 1 <http://sooo.senate.ca.gov/ sites/sooo.senate.ca.gov/files/fair%20employment%20and%20housing%20final.pdf> (as of Apr. 29, 2017). ↑

2. Ibid. ↑

3. Id. at pp. 1-2 ↑

SENATE THIRD READING

STR Bill Id:SB 491

Author:(Bradford)

As Amended Ver:July 12, 2017

Majority vote

SENATE VOTE: 37-0

SUMMARY: Establishes an advisory group to determine the feasibility of authorizing local government entities to enforce anti-discrimination statutes and makes supporting findings, declarations, and clarifications. Specifically, this bill:

1. Requires the Department of Fair Employment and Housing (DFEH) to establish an advisory group to study the feasibility of authorizing local government entities to enforce antidiscrimination statutes. Specifies that the advisory group shall be established no later than April 1, 2018, and shall consist of at least one member of DFEH and civil rights, employer, and employee advocates. If the advisory group concludes that enforcement by local entities is feasible, it shall draft proposed legislation and report to the Legislature, as specified.
2. Requires the study referenced above to include a survey of local government entities to inquire about the types of activities that they currently engage in or expect to engage in relative to the Fair Employment and Housing Act (FEHA), including the following activities: providing culturally appropriate outreach and education about rights under FEHA; advising persons about statutory time limits for complaints; referring persons to DFEH; investigating and fact gathering, including gathering through subpoenas; visiting worksites; collecting data; offering mediation; and partnering with community-based organizations.
3. Clarifies that while the Legislative intent in enacting FEHA was to occupy the field in terms of regulation of employment and housing discrimination, this intent shall not be construed to limit the ability of a local government entity to refer a person alleging discrimination to DFEH for information on the manner and necessity of filing a proper and timely complaint; to assist that person in doing so to the extent permitted by law; and to provide relevant information and resources.
4. Makes findings and declarations relating to the extent of workplace discrimination, the negative impact of high investigator caseloads within DFEH, and the corresponding need to enhance the ability of local governments to support DFEH anti-discrimination efforts and to consider, through the establishment of an advisory group, authorizing local enforcement of FEHA protections.

EXISTING LAW:

1. Declares, under the Unruh Civil Rights Act, that all persons within the jurisdiction of this state are free and equal and are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business esablishments regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (Civil Code Section 51.)
2. Provides that any person who discriminates in any manner that violates the Unruh Civil Rights Act, or other specified civil rights statute, is liable for each and every offense for up to three times the amount of actual damages, but in no case less than $4,000 and reasonable attorney's fees. Permits a civil action for damages to be brought by the Attorney General, any district attorney or city attorney, or any person aggrieved by the discriminatory conduct. (Civil Code Section 52.)
3. Prohibits, under FEHA, discrimination in housing and employment. Authorizes DFEH to promulgate rules and regulations relating to housing and employment discrimination; prescribes the manner for filing a complaint; and sets forth procedures by which DFEH shall investigate and remedy those complaints. (Government Code Section 12900 et seq.)
4. Specifies that, while it was the intent of the Legislature that FEHA should occupy the field of regulation relating to discrimination in employment and housing, nothing in FEHA's provisions shall be construed to limit the application of the Unruh Civil Rights Act or any other civil rights statute. (Government Code Section 12933.)

FISCAL EFFECT: According to the Assembly Appropriations Committee, unknown GF costs to DFEH to establish the advisory group and conduct the study. Costs would depend on the scope and level of detail of the study that is determined by the advisory group. Given the requirements and timelines established in the bill, it is likely that costs would be in the tens of thousands of dollars.

COMMENTS: In 1959 the California Legislature enacted two important civil rights statutes. The Fair Employment Practices Act (which later became FEHA) prohibits discrimination in employment and housing. Although initially this statute primarily targeted racial and religious discrimination, it has been expanded over the years to ban discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. It was also in 1959 that the Legislature enacted the Unruh Civil Rights Act, which now prohibits any business establishment from denying to any person full and equal accommodations, advantages, facilities, privileges, or services based on that person's sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. Additional statutes were added in subsequent years to prohibit, among other things, gender pricing discrimination, harassment or intimidation directed at protected classes of people, and human trafficking. Together, these statutes constitute California's principal civil rights and anti-discrimination statutes.

State and Local Enforcement of California's Civil Rights Laws: The agencies charged with enforcing California's civil rights and anti-discrimination statutes vary. The Unruh Civil Rights Act, for example, may be investigated and enforced by the California Attorney General, a district attorney, or a city attorney. In addition, any person injured by a violation of the Unruh Civil Rights Act may bring a civil action for damages, including any attorney's fees. However, the anti-discrimination provisions consolidated under FEHA are regulated and enforced by the Department of Fair Employment and Housing (DFEH). Specifically, DFEH is authorized to make rules and regulations relating to workplace and housing discrimination, as well as to receive complaints of discrimination, investigate those complaints, and take appropriate remedial action.

Most relevant to this bill, FEHA expressly states that it occupies the field of "regulation" (which is generally understood to include "enforcement") when it comes to employment and housing discrimination. While local officials – most notably public prosecutors – are expressly authorized to bring actions against discrimination under the Unruh Civil Rights and related civil rights statutes, they cannot regulate and enforce the provisions of FEHA – a comprehensive statutory framework that sets forth the procedures and timelines for filing complaints, providing notice, conducting hearings and investigations, encouraging mediation, and, if necessary, taking enforcement actions. Once a complaint is filed, DFEH must take a series of legally required steps. In many cases, DFEH investigates the case and encourages the parties to resolve the dispute. If the dispute cannot be resolved in this manner, DFEH may conduct hearings and, if it finds that discrimination has occurred, may take appropriate legal action. In other cases, DFEH may not take any action but provide the complainant a so-called "right to sue" letter, which allows that person to bring a civil action without having to further exhaust any administrative process.

UCLA/Rand Study on DFEH Funding: In 2008 DFEH Director Phyllis Cheng commissioned a study in anticipation of the 50-year anniversary of FEHA (1959-2009), which eventually resulted in a 2010 UCLA/Rand report, entitled California Employment Discrimination Law and its Enforcement: The Fair Employment and Housing Act at 50. Among the many problems identified by the report was the "inadequate funding" that made it more difficult for DFEH to carry out its mission, and especially its capacity to investigate complaints. Three years later, a report prepared by the California Senate Office of Oversight and Outcomes also concluded that DFEH investigation and enforcement was hampered by a combination of "dwindling resources and increased demand." (California Senate Office of Oversight and Outcomes, Department of Fair Employment and Housing: Underfunding and Misguided Policies Compromise Civil Rights Mission, December 18, 2013.) Citing this reported lack of funding and the resulting increase in investigator caseloads, the author and sponsor maintain that allowing local government officials to enforce FEHA will provide additional tools and resources to combat an apparently increasing level of housing and workplace discrimination. The author and sponsors reasonably believe that allowing local officials to enforce FEHA will remove some of the burden from DFEH and ultimately provide more opportunities for justice to persons who suffer discrimination.

In addition, this measure would also amend existing law to clarify that, while FEHA may occupy the field of regulation and enforcement, local governments are not entirely precluded from taking actions to assist and supplement the mission of DFEH. Specifically, this bill states that nothing in the grant of exclusive regulatory and enforcement authority to DFEH limits the ability of local government entities to refer a person alleging discrimination to DFEH for the purpose of filing a timely complaint, to assist that person in doing so, or to provide persons with educational information about their rights under the FEHA and how to exercise those rights.

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0001648

Date of Hearing: August 23, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 491

Author:(Bradford) – As Amended Ver:July 12, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the Department of Fair Employment and Housing (DFEH) to establish an advisory group, by April 1, 2018, to determine the feasibility of authorizing local government entities to enforce anti-discrimination statutes. In addition, this bill requires the advisory group to conduct a survey and produce a study relating to the types of activities that local entities currently engage in with respect to enforcing, educating, and implementing certain civil rights. This bill requires the advisory group to report to the Legislature by December 31, 2018, on the results of the advisory group and any recommendations resulting from the group’s work.

FISCAL EFFECT:

Unknown GF costs to DFEH to establish the advisory group and conduct the study. Costs would depend on the scope and level of detail of the study that is determined by the advisory group. Given the requirements and timelines established in the bill, it is likely that costs would be in the tens of thousands of dollars.

COMMENTS:

1. Background. The agencies charged with enforcing California's civil rights and anti-discrimination statutes vary. The Unruh Civil Rights Act, for example, may be investigated and enforced by the California Attorney General, a district attorney, or a city attorney. In addition, any person injured by a violation of the Unruh Civil Rights Act may bring a civil action for damages, including any attorney's fees. However, the anti-discrimination provisions consolidated under the Fair Employment and Housing Act (FEHA) are regulated and enforced by the Department of Fair Employment and Housing (DFEH). Specifically, DFEH is authorized to make rules and regulations relating to workplace and housing discrimination, as well as to receive complaints of discrimination, investigate those complaints, and take appropriate remedial action.
2. Purpose. According to the author, "while well-intended, FEHA’s provisions and protections are unable to keep pace with the high volume of claims filed with the Department of Fair Employment and Housing (DFEH)." The author writes that "DFEH receives an average of 24,000 discrimination claims every year and even the simplest claims require a minimum of 90 days to process and initiate action. Added to this, DFEH has seen its resources and funding dwindle since FEHA was passed, which has hampered its ability to investigate and resolve claims. This means that those who need FEHA protections enforced by DFEH are often left in limbo for prolonged periods of time, which adds to their dilemma." Given the limited ability of DFEH to respond to its heavy caseload, this measure "will call on the DFEH, along with civil rights, employer and employee advocates, to establish an advisory committee to examine ways to allow local governments to assist the groups covered under FEHA, while also easing DFEH’s burden and lack of resources." The author hopes that the advisory group's findings "will help ensure that those people who suffer discrimination will have the backing of all levels of government in shielding them from such violations."

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: July 11, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 491

Author:(Bradford) – As Amended Ver:July 6, 2017

As Proposed to be Amended

SENATE VOTE: 37-0

SUBJECT: Civil rights: discrimination: enforcement

KEY ISSUES:

1. Should the department of fair Employment and housing establish an advisory group to determine the feasibility of authorizing local governments to enforce anti-discrimination statutes?
2. should the fair employment and housing act be amended in order to clarify that local government entities may refer a person alleging discrimination to the Department of fair employment and housing for information on filing a complaint, and to assist that person to the extent permitted by law?

SYNOPSIS

Under California's Fair Employment and Housing Act (FEHA), the Department of Fair Employment and Housing (DFEH) is authorized to make rules and regulations relating to workplace and housing discrimination, as well as to receive complaints of discrimination, investigate those complaints, and take appropriate remedial action. FEHA expressly states that it "occupies the field" of regulation (with "regulation" generally understood to include "enforcement"). While local governments are expressly authorized to bring actions against discrimination under the Unruh Civil Rights and related civil rights statutes, they cannot regulate and enforce the provisions of FEHA – a comprehensive statutory framework that sets forth the procedures and timelines for filing complaints, providing notice, conducting hearings and investigations, encouraging mediation, and, if necessary, taking enforcement actions. However, as the author and supporters point out, DFEH has limited resources and cannot carry every complaint through to resolution. The author and sponsor believe that allowing local government officials to enforce FEHA will provide additional tools and resources to combat housing and workplace discrimination. This bill would require DFEH to establish, not later than April 1, 2018, an advisory group to study the idea of allowing local government entities to enforce anti-discrimination statutes and, in the meantime, to clarify that local governments may engage in certain activities that support the DFEH mission to prohibit employment and housing discrimination. This bill is co-sponsored by SEIU and the Los Angeles Black Workers Center and supported by several civil rights and labor groups. There is no opposition to this bill. The author will take minor technical amendments that are reflected in the summary and analysis.

SUMMARY: Establishes an advisory group to determine the feasibility of authorizing local government entities to enforce anti-discrimination statutes and makes supporting findings, declarations, and clarifications. Specifically, this bill:

1. Requires the Department of Fair Employment and Housing (DFEH) to establish an advisory group to study the feasibility of authorizing local government entities to enforce antidiscrimination statutes. Specifies that the advisory group shall be established no later than April 1, 2018, and shall consist of at least one member of DFEH and civil rights, employer, and employee advocates. If the advisory group concludes that enforcement by local entities is feasible, it shall draft proposed legislation and report to the Legislature, as specified.
2. Requires the study referenced above to include a survey of local government entities to inquire about the types of activities that they currently engage in or expect to engage in relative to the Fair Employment and Housing Act (FEHA), including the following activities: providing culturally appropriate outreach and education about rights under FEHA; advising persons about statutory time limits for complaints; referring persons to DFEH; investigating and fact gathering, including gathering through subpoenas; visiting worksites; collecting data; offering mediation; and partnering with community-based organizations.
3. Clarifies that while the Legislative intent in enacting FEHA was to occupy the field in terms of regulation of employment and housing discrimination, this intent shall not be construed to limit the ability of a local government entity to refer a person alleging discrimination to DFEH for information on the manner and necessity of filing a proper and timely complaint; to assist that person in doing so to the extent permitted by law; and to provide relevant information and resources.
4. Makes findings and declarations relating to the extent of workplace discrimination, the negative impact of high investigator caseloads within DFEH, and the corresponding need to enhance the ability of local governments to support DFEH anti-discrimination efforts and to consider, through the establishment of an advisory group, authorizing local enforcement of FEHA protections.

EXISTING LAW:

1. Declares, under the Unruh Civil Rights Act, that all persons within the jurisdiction of this state are free and equal and are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business esablishments regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (Civil Code Section 51.)
2. Provides that any person who discriminates in any manner that violates the Unruh Civil Rights Act, or other specified civil rights statute, is liable for each and every offense for up to three times the amount of actual damages, but in no case less than $4,000 and reasonable attorney's fees. Permits a civil action for damages to be brought by the Attorney General, any district attorney or city attorney, or any person aggrieved by the discriminatory conduct. (Civil Code Section 52.)
3. Prohibits, under FEHA, discrimination in housing and employment. Authorizes DFEH to promulgate rules and regulations relating to housing and employment discrimination; prescribes the manner for filing a complaint; and sets forth procedures by which DFEH shall investigate and remedy those complaints. (Government Code Section 12900 et seq.)
4. Specifies that, while it was the intent of the Legislature that FEHA should occupy the field of regulation relating to discrimination in employment and housing, nothing in FEHA's provisions shall be construed to limit the application of the Unruh Civil Rights Act or any other civil rights statute. (Government Code Section 12933.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: In 1959 the California Legislature enacted two important civil rights statutes. The Fair Employment Practices Act (which later became FEHA) prohibits discrimination in employment and housing. Although initially this statute primarily targeted racial and religious discrimination, it has been expanded over the years to ban discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. It was also in 1959 that the Legislature enacted the Unruh Civil Rights Act, which now prohibits any business establishment from denying to any person full and equal accommodations, advantages, facilities, privileges, or services based on that person's sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. Additional statutes were added in subsequent years to prohibit, among other things, gender pricing discrimination, harassment or intimidation directed at protected classes of people, and human trafficking. Together, these statutes constitute California's principal civil rights and anti-discrimination statutes.

State and Local Enforcement of California's Civil Rights Laws: The agencies charged with enforcing California's civil rights and anti-discrimination statutes vary. The Unruh Civil Rights Act, for example, may be investigated and enforced by the California Attorney General, a district attorney, or a city attorney. In addition, any person injured by a violation of the Unruh Civil Rights Act may bring a civil action for damages, including any attorney's fees. However, the anti-discrimination provisions consolidated under FEHA are regulated and enforced by the Department of Fair Employment and Housing (DFEH). Specifically, DFEH is authorized to make rules and regulations relating to workplace and housing discrimination, as well as to receive complaints of discrimination, investigate those complaints, and take appropriate remedial action.

Most relevant to this bill, FEHA expressly states that it occupies the field of "regulation" (which is generally understood to include "enforcement") when it comes to employment and housing discrimination. While local officials – most notably public prosecutors – are expressly authorized to bring actions against discrimination under the Unruh Civil Rights and related civil rights statutes, they cannot regulate and enforce the provisions of FEHA – a comprehensive statutory framework that sets forth the procedures and timelines for filing complaints, providing notice, conducting hearings and investigations, encouraging mediation, and, if necessary, taking enforcement actions. Once a complaint is filed, DFEH must take a series of legally required steps. In many cases, DFEH investigates the case and encourages the parties to resolve the dispute. If the dispute cannot be resolved in this manner, DFEH may conduct hearings and, if it finds that discrimination has occurred, may take appropriate legal action. In other cases, DFEH may not take any action but provide the complainant a so-called "right to sue" letter, which allows that person to bring a civil action without having to further exhaust any administrative process.

UCLA/Rand Study on DFEH Funding: In 2008 DFEH Director Phyllis Cheng commissioned a study in anticipation of the 50-year anniversary of FEHA (1959-2009), which eventually resulted in a 2010 UCLA/Rand report, entitled California Employment Discrimination Law and its Enforcement: The Fair Employment and Housing Act at 50. Among the many problems identified by the report was the "inadequate funding" that made it more difficult for DFEH to carry out its mission, and especially its capacity to investigate complaints. Three years later, a report prepared by the California Senate Office of Oversight and Outcomes also concluded that DFEH investigation and enforcement was hampered by a combination of "dwindling resources and increased demand." (California Senate Office of Oversight and Outcomes, Department of Fair Employment and Housing: Underfunding and Misguided Policies Compromise Civil Rights Mission, December 18, 2013.) Citing this reported lack of funding and the resulting increase in investigator caseloads, the author and sponsor maintain that allowing local government officials to enforce FEHA will provide additional tools and resources to combat an apparently increasing level of housing and workplace discrimination. The author and sponsors reasonably believe that allowing local officials to enforce FEHA will remove some of the burden from DFEH and ultimately provide more opportunities for justice to persons who suffer discrimination.

This bill: A prior version of this bill responded to the alleged inability of DFEH to handle its caseload by authorizing local government officials to enforce FEHA, in more or less the same manner that they now enforce the Unruh Civil Rights Act. However, because FEHA sets forth a comprehensive process, with specific procedures and timelines that have developed over years of practice, it was not immediately apparent that this framework could simply be transferred to local government entities. As such, the bill was substantially amended to require DFEH to establish an advisory group to study the feasibility of allowing local government entities to enforce FEHA. The advisory group would consist of at least one member of DFEH and representatives from employer, employee, and civil rights advocates. Among other things, the group would survey local governments about the kinds of activities that they currently undertake to address problems of housing and workplace discrimination. If the advisory group concludes that local enforcement of FEHA is advisable and feasible, it would be charged with drafting proposed legislation – in consultation with Legislative Counsel and the California Law Revision Commission – for submission to the Legislature.

In addition, this measure would also amend existing law to clarify that, while FEHA may occupy the field of regulation and enforcement, local governments are not entirely precluded from taking actions to assist and supplement the mission of DFEH. Specifically, this bill states that nothing in the grant of exclusive regulatory and enforcement authority to DFEH limits the ability of local government entities to refer a person alleging discrimination to DFEH for the purpose of filing a timely complaint, to assist that person in doing so, or to provide persons with educational information about their rights under the FEHA and how to exercise those rights.

A caveat: Until local officials have enforcement power, should they do anything beyond referring a person to DFEH? Many of the letters in support of this measure, as well as the bill's findings and declarations, suggest that local officials can and should engage in more "supportive workplace discrimination activities" than they currently do. However, beyond referring people to DFEH or providing general educational outreach, it is not entirely clear that we would want local officials to do anything more than make referrals given that they lack authority to investigate and enforce FEHA claims. Indeed, one could argue that, under existing law, the most important thing that local officials can do for people who face workplace and housing discrimination is to refer them immediately to DFEH so that they can file a timely complaint. In other words, until local officials have the authority, workers might be ill-advised to approach local officials for assistance. Instead, persons facing workplace and housing discrimination should be encouraged to bypass local officials and contact DFEH directly and immediately so that they may file their complaint and take other necessary actions to initiate their case before the expiration of DFEH deadlines. If a local government entity wants to be more proactive, and take actions before a complaint is brought to its attention, then it could provide educational materials explaining the importance of contacting DFEH as soon as possible.

DFEH Caseloads and "Right to Sue" Letters: The author and supporters agree that DFEH lacks the resources to adequately investigate and effectively enforce all of the complaints that it receives and, therefore, granting enforcement power to local officials will result in the resolution of more claims. While it is true that DFEH does not investigate every complaint that is receives, let alone see all of them through to a resolution, this is not always the result of a lack of funding. DFEH has informed the Committee that many complaints that do not result in DFEH investigation and enforcement action do, nonetheless, result in the issuance of a so-called "right to sue" letter. FEHA generally prohibits individuals from bringing a civil action before those individuals have "exhausted" all of their administrative remedies. The "right to sue letter," which is sometimes issued very early in the process, even before any DFEH investigation or action occurs, is effectively proof that the person has exhausted administrative remedies and may now proceed with a civil action for damages. According to the 2010 UCLA/Rand Report cited above, depending upon a person's situation and the nature of the violation, a person might secure a more favorable outcome through a civil action than through a DFEH enforcement action. Any legislation proposed by the advisory group should consider what it will mean to exhaust administrative remedies with a local entity and ensure that persons seeking justice through local officials will similarly be eligible for "right to sue" letters.

ARGUMENTS IN SUPPORT: According to the author, "while well-intended, FEHA’s provisions and protections are unable to keep pace with the high volume of claims filed with the Department of Fair Employment and Housing (DFEH)." The author writes that "DFEH receives an average of 24,000 discrimination claims every year and even the simplest claims require a minimum of 90 days to process and initiate action. Added to this, DFEH has seen its resources and funding dwindle since FEHA was passed, which has hampered its ability to investigate and resolve claims. This means that those who need FEHA protections enforced by DFEH are often left in limbo for prolonged periods of time, which adds to their dilemma." Given the limited ability of DFEH to respond to its heavy caseload, this measure "will call on the DFEH, along with civil rights, employer and employee advocates, to establish an advisory committee to examine ways to allow local governments to assist the groups covered under FEHA, while also easing DFEH’s burden and lack of resources." The author hopes that the advisory group's findings "will help ensure that those people who suffer discrimination will have the backing of all levels of government in shielding them from such violations."

The Alliance for Boys and Men and Color writes that "SB 491 will begin the process of establishing a right of local enforcement of FEHA employment protections." The Alliance adds that "recent published research demonstrates that discrimination in hiring remains a persistent challenge for Black workers." In addition, the Alliance contends that "more than 40 percent of lesbian, gay, and bisexual workers report experiencing employment discrimination at some point in their lives, while approximately 90 percent of transgender workers . . . experience harassment, mistreatment, or discrimination at work or have tried to hide who they are to avoid these experiences." The Alliance concludes that "lack of enforcement of anti-discrimination laws is a problem that is well documented and if ever there were a time to reverse that pattern, it is now."

Author's Technical Amendments:

• On page 4, line 15, before "Statutory" insert: Advising persons about
• On page 4, line 29, change "Law Review Commission" to California Law Revision Commission

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles Black Workers Center (co-sponsor)

SEIU (co-sponsor)

African American Cultural Center

Alliance of Boys and Men of Color

Alliance for Boys and Men of Color, Riverside County

Anti-Defamation League

Black Community, Clergy, and Labor Alliance

California Labor Federation

Courage Campaign

Fathers & Families of San Joaquin

IDEPSCA

Koreatown Immigrant Workers Alliance

NAACP, California Conference

National Employment Law Project

PolicyLink

Restaurant Opportunities Center of Los Angeles

Shields for Families

Strategic Concepts in Organizing and Policy Education

United Food and Commercial Workers Union, Local 770

Voices for Progress Education

Warehouse Worker Resource Center

Western Center on Law and Poverty

Women's Foundation of California

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334

 CONSENT 

Bill No: SB 491

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 5/9/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: Author

DIGEST:

This bill lays the groundwork for the possibility that local governments could enforce one of California’s key civil rights laws: the Fair Employment and Housing Act (FEHA). Specifically, this bill instructs the California Department of Fair Employment and Housing (DFEH) to establish an advisory group to study the feasibility of authorizing local governments to enforce FEHA, and to report back to the Legislature with an implementation plan and draft legislation.

ANALYSIS:

Existing law:

1. Prohibits, under FEHA, discrimination in housing and employment on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other categories, in the areas of housing and employment. (Gov. Code Secs. 12900 -12996.)
2. Establishes the DFEH with responsibility for enforcing FEHA. (Gov. Code Sec. 12930.)
3. Expresses the intent of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of FEHA, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state. (Gov. Code Sec. 12993(c).)

This bill:

1. Instructs the DFEH to establish an advisory group consisting of at least one representative from the DFEH, and civil rights, labor, and employment advocates by no later than April 1, 2018.
2. Tasks the advisory group with studying the feasibility of authorizing local government entities to enforce FEHA, and with reporting back to the Legislature with an implementation plan and draft legislation by no later than December 31, 2018.

Background

FEHA has been described as one of the strongest anti-discrimination laws in the nation.^[1] Its purpose is to prohibit and punish disparate treatment of any Californian on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other grounds, in the areas of housing and employment. (Gov. Code Sec. 12920.)

According to a 2013 report by the California Senate Office of Oversight and Outcomes, however: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.”^[2] The report concluded that “[o]ver the long run, DFEH and state leaders must come to grips with the chasm between the broad legal mandate to provide effective remedies – including full investigations into all proper claims alleging discrimination – and the relatively miniscule allotment of resources appropriated for that purpose in the state budget.”^[3]

This bill directs an advisory group, to be established by DFEH and consisting of representatives from the civil rights, labor, and employment fields, to study the feasibility of one possible way to address the need for greater resources to enforce FEHA: authorizing local government entities to take on some of the work.

Comments

Reasons for the study

As initially drafted, this bill simply clarified that local enforcement of FEHA is not preempted. Given the importance of civil rights protections and the fact that discrimination complaints currently outstrip DFEH’s enforcement capacity, the concept of authorizing local government entities to help out immediately has strong appeal. Local enforcement could potentially result in greater resources dedicated to enforcement, more geographically convenient points of contact for complainants and respondents, greater trust in the system, and swifter response times.

At the same time, there are a number of factors and details that should be considered before making such a significant change, since they could, contrary to the intention of this bill, result in weaker, not stronger civil rights enforcement. For instance:

• Decentralizing enforcement could lead to disparate enforcement across the state. Different jurisdictions will inevitably devote different resource levels to civil rights enforcement. It is also likely that different jurisdictions might reach different conclusions about the proper interpretation of FEHA, resulting in some places with greater protections for civil rights and other places with weaker protections.
• Decentralizing enforcement could result in the loss of useful data. Currently, DFEH collects data on the number and the type of discrimination complaints it receives. Since DFEH is currently the sole point of entry for discrimination complaints, this data is comprehensive for the state (though obviously, it does not include instances of discrimination that go unreported.) As such, the data provides useful information for policy makers and the public. From it, discrimination trends can be identified and resources can be directed accordingly. Absent some mechanism for capturing data from local agencies, decentralizing FEHA enforcement would render this data far less comprehensive and reliable.
• Some funding for civil rights enforcement could be disrupted. DFEH receives some federal funds for its work based on agreements it has with its federal counterparts, the U.S. Department of Housing and Urban Development as well as the Equal Employment Opportunity Commission. Turning some of DFEH’s work over to local entities could have impacts on that federal funding. That could, at least potentially, lead to less enforcement overall.
• Local enforcement of FEHA might lead to a reduction in budgetary support for DFEH. If, instead of viewing local enforcement as a supplement to DFEH, policy makers decided that local enforcement could partially or fully displace DFEH, the net result might be a no change or even a decline in overall levels of civil rights enforcement.

None of these issues necessarily presents insurmountable challenges. Upon study, some of them may turn out not to be problems at all. Given how vital effective civil rights enforcement is, however, if decentralization of FEHA enforcement is to take place, it is essential that it is done right. As stakeholders, users, and operators of the current system, the members of the advisory group envisioned by this bill would have expertise that could be useful for thinking through all of the possible issues presented by local enforcement of FEHA, working out solutions for any potential problems, and reporting back to the Legislature with a plan for moving forward effectively.

Related/Prior Legislation

AB 2534 (Shelley, 2000) would have provided that local governments are not pre-empted from providing or maintaining greater protections against discrimination than FEHA. AB 2534 died in the Assembly Judiciary Committee.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/22/17)

Alliance for Boys and Men of Color

Alliance for Community Transit – Los Angeles

Asian Americans Advancing Justice – Los Angeles

Bay Area Black Worker Center

California Labor Federation

Community Coalition

Community Health Councils

Courage Campaign

Los Angeles Alliance for a New Economy

Los Angeles Black Worker Center

Fathers and Families of San Joaquin

National Employment Law Project

PolicyLink

Restaurant Opportunities Center of Los Angeles

SEIU United Healthcare Workers West

Service Employees International Union

United Food and Commercial Workers Union Local 770

United Food and Commercial Workers Union – Western States Council

United Union of Roofers, Waterproofers, and Allied Workers Local Union #36

Voices for Progress Education Fund

Warehouse Worker Resource Center

Western Center on Law and Poverty

9to5

OPPOSITION: (Verified 5/22/17)

None received

ARGUMENTS IN SUPPORT: According to the author:

DFEH receives an average of 24,000 discrimination claims every year and even the simplest claims require a minimum of 90 days to process and initiate action. Added to this, DFEH has seen its resources and funding dwindle since FEHA was passed, which has hampered its ability to investigate and resolve claims. This means that those who need FEHA’s protections are often left in limbo for prolonged periods of time, which adds to their dilemma.

DFEH attempted to streamline its claims filing system with an online reporting option, but this method has been troubled with technical issues and long wait-times. Taken together, the DFEH’s limited resources are overstrained and often unable to provide protections for vulnerable groups who are supposed to be safeguarded under FEHA. Under current law, local governments are preempted by the state from participating in FEHA investigation and enforcement, thus denying a critical resource to those filing FEHA claims….

SB 491 offers a way to address these issues in an effective manner with minimal cost to the State. Allowing local governments to join in the fight against discrimination by enabling them to investigate and enforce the provisions of FEHA will lessen the workload of the DFEH while providing local and available resources to the victims of these injustices.

In support, the Los Angeles Black Worker Center and the Service Employees International Union write:

California enacted the California Fair Employment Act (FEHA) in 1959 as an effort to promote civil rights and to protect people that were often victims of employment discrimination. Since its enactment, FEHA has been unable to keep up with the high volumes of claims filed with the California Department of Fair Employment and Housing (DFEH), which is the entity that enforces FEHA….

SB 491 would address this by allowing county and city government to help groups covered under FEHA. This will ease the administrative burden on DFEH and ensure California’s vulnerable populations are not discriminated against.

In further support, the United Food and Commercial Workers Union – Western States Council writes:

Any form of discrimination robs people of their human dignity and often also of their financial stability and their health. When discrimination is allowed to ensue unchecked it also robs our communities of valuable opportunities to be better and to be stronger. The Fair Employment and Housing Act outlaws discrimination. The Act is silent on the question of whether municipalities can participate in the enforcement of the Act, neither granting permission nor banning local enforcement activities.

Recently published research demonstrates that discrimination in hiring remains a persistent challenge for Black workers. 17% of Black workers are unemployed as compared to 9% of white workers in LA County. While Black Americans are more educated than previous generations, they still earn only three quarters of what white workers earn. Relative to their share of the overall labor force, Black workers are underrepresented in professional, construction, manufacturing, and food service jobs….

Lack of enforcement of anti-discrimination laws is a problem that is well documented and if ever there were a time to reverse that pattern, it is now.

Prepared by:

5/25/17 9:46:40

**** END ****

1. Department of Fair Employment and Housing: Underfunding and Misguided Policies Compromise Civil Rights Mission (Dec. 18, 2013) California Senate Office of Oversight and Outcomes, p. 1 <http://sooo.senate.ca.gov/ sites/sooo.senate.ca.gov/files/fair%20employment%20and%20housing%20final.pdf> (as of Apr. 29, 2017). ↑

2. Ibid. ↑

3. Id. at pp. 1-2 ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 491 (Author:Bradford)

Version: May 1, 2017

Hearing Date: May 9, 2017

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Civil rights: discrimination: enforcement

DESCRIPTION

This bill would lay the groundwork for the possibility that local governments could enforce one of California’s key civil rights laws: the Fair Employment and Housing Act (FEHA). Specifically, this bill would instruct the California Department of Fair Employment and Housing (DFEH) to establish an advisory group to study the feasibility of authorizing local governments to enforce FEHA, and to report back to the Legislature with an implementation plan and draft legislation.

BACKGROUND

FEHA has been described as one of the strongest anti-discrimination laws in the nation.^[1] Its purpose is to prohibit and punish disparate treatment of any Californian on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other grounds, in the areas of housing and employment. (Gov. Code Sec. 12920.)

According to a 2013 report by the California Senate Office of Oversight and Outcomes, however: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.”^[2] The report concluded that “[o]ver the long run, DFEH and state leaders must come to grips with the chasm between the broad legal mandate to provide effective remedies – including full investigations into all proper claims alleging discrimination – and the relatively miniscule allotment of resources appropriated for that purpose in the state budget.”^[3]

This bill would direct an advisory group, to be established by DFEH and consisting of representatives from the civil rights, labor, and employment fields, to study the feasibility of one possible way to address the need for greater resources to enforce FEHA: authorizing local government entities to take on some of the work.

CHANGES TO EXISTING LAW

Existing law, in the form of the Fair Employment and Housing Act (FEHA) prohibits discrimination in housing and employment on the basis of race, religion, color, national origin, disability, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, among other categories, in the areas of housing and employment. (Gov. Code Secs. 12900 -12996.)

Existing law establishes the Department of Fair Employment and Housing (DFEH) with responsibility for enforcing FEHA. (Gov. Code Sec. 12930.)

Existing law, in the form of FEHA, expresses the intent of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of FEHA, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state. (Gov. Code Sec. 12993(c).)

This bill would instruct the Department of Fair Employment and Housing to establish an advisory group consisting of at least one representative from the department, and civil rights, labor, and employment advocates by no later than April 1, 2018.

This bill would task the advisory group with studying the feasibility of authorizing local government entities to enforce FEHA, and with reporting back to the Legislature with an implementation plan and draft legislation by no later than December 31, 2018.

COMMENT

1. Stated need for the bill

According to the author:

DFEH receives an average of 24,000 discrimination claims every year and even the simplest claims require a minimum of 90 days to process and initiate action. Added to this, DFEH has seen its resources and funding dwindle since FEHA was passed, which has hampered its ability to investigate and resolve claims. This means that those who need FEHA’s protections are often left in limbo for prolonged periods of time, which adds to their dilemma.

DFEH attempted to streamline its claims filing system with an online reporting option, but this method has been troubled with technical issues and long wait-times. Taken together, the DFEH’s limited resources are overstrained and often unable to provide protections for vulnerable groups who are supposed to be safeguarded under FEHA. Under current law, local governments are preempted by the state from participating in FEHA investigation and enforcement, thus denying a critical resource to those filing FEHA claims….

SB 491 offers a way to address these issues in an effective manner with minimal cost to the State. Allowing local governments to join in the fight against discrimination by enabling them to investigate and enforce the provisions of FEHA will lessen the workload of the DFEH while providing local and available resources to the victims of these injustices.

In support, the Los Angeles Black Worker Center and the Service Employees International Union write:

California enacted the California Fair Employment Act (FEHA) in 1959 as an effort to promote civil rights and to protect people that were often victims of employment discrimination. Since its enactment, FEHA has been unable to keep up with the high volumes of claims filed with the California Department of Fair Employment and Housing (DFEH), which is the entity that enforces FEHA….

SB 491 would address this by allowing county and city government to help groups covered under FEHA. This will ease the administrative burden on DFEH and ensure California’s vulnerable populations are not discriminated against.

In further support, the United Food and Commercial Workers Union – Western States Council writes:

Any form of discrimination robs people of their human dignity and often also of their financial stability and their health. When discrimination is allowed to ensue unchecked it also robs our communities of valuable opportunities to be better and to be stronger. The Fair Employment and Housing Act outlaws discrimination. The Act is silent on the question of whether municipalities can participate in the enforcement of the Act, neither granting permission nor banning local enforcement activities.

Recently published research demonstrates that discrimination in hiring remains a persistent challenge for Black workers. 17% of Black workers are unemployed as compared to 9% of white workers in LA County. While Black Americans are more educated than previous generations, they still earn only three quarters of what white workers earn. Relative to their share of the overall labor force, Black workers are underrepresented in professional, construction, manufacturing, and food service jobs….

Lack of enforcement of anti-discrimination laws is a problem that is well documented and if ever there were a time to reverse that pattern, it is now.

2. Reasons for the study

As initially drafted, this bill would simply have clarified that local enforcement of FEHA is not preempted. Given the importance of civil rights protections and the fact that discrimination complaints currently outstrip DFEH’s enforcement capacity, the concept of authorizing local government entities to help out immediately has strong appeal. Local enforcement could potentially result in greater resources dedicated to enforcement, more geographically convenient points of contact for complainants and respondents, greater trust in the system, and swifter response times.

At the same time, there are a number of factors and details that should be considered before making such a significant change, since they could, contrary to the intention of this bill, result in weaker, not stronger civil rights enforcement. For instance:

• Decentralizing enforcement could lead to disparate enforcement across the state. Different jurisdictions will inevitably devote different resource levels to civil rights enforcement. It is also likely that different jurisdictions might reach different conclusions about the proper interpretation of FEHA, resulting in some places with greater protections for civil rights and other places with weaker protections.
• Decentralizing enforcement could result in the loss of useful data. Currently, DFEH collects data on the number and the type of discrimination complaints it receives. Since DFEH is currently the sole point of entry for discrimination complaints, this data is comprehensive for the state (though obviously, it does not include instances of discrimination that go unreported.) As such, the data provides useful information for policy makers and the public. From it, discrimination trends can be identified and resources can be directed accordingly. Absent some mechanism for capturing data from local agencies, decentralizing FEHA enforcement would render this data far less comprehensive and reliable.
• Some funding for civil rights enforcement could be disrupted. DFEH receives some federal funds for its work based on agreements it has with its federal counterparts, the U.S. Department of Housing and Urban Development as well as the Equal Employment Opportunity Commission. Turning some of DFEH’s work over to local entities could have impacts on that federal funding. That could, at least potentially, lead to less enforcement overall.
• Local enforcement of FEHA might lead to a reduction in budgetary support for DFEH. If, instead of viewing local enforcement as a supplement to DFEH, policy makers decided that local enforcement could partially or fully displace DFEH, the net result might be a no change or even a decline in overall levels of civil rights enforcement.

None of these issues necessarily presents insurmountable challenges. Upon study, some of them may turn out not to be problems at all. Given how vital effective civil rights enforcement is, however, if decentralization of FEHA enforcement is to take place, it is essential that it is done right. As stakeholders, users, and operators of the current system, the members of the advisory group envisioned by this bill would have expertise that could be useful for thinking through all of the possible issues presented by local enforcement of FEHA, working out solutions for any potential problems, and reporting back to the Legislature with a plan for moving forward effectively.

Support: Alliance for Boys and Men of Color; Alliance for Community Transit – Los Angeles; Asian Americans Advancing Justice – Los Angeles; Bay Area Black Worker Center; California Labor Federation; Community Coalition; Community Health Councils; Courage Campaign; Los Angeles Alliance for a New Economy; Los Angeles Black Worker Center; Fathers and Families of San Joaquin; National Employment Law Project; PolicyLink; Restaurant Opportunities Center of Los Angeles; SEIU United Healthcare Workers West; Service Employees International Union; United Food and Commercial Workers Union Local 770; United Food and Commercial Workers Union – Western States Council; United Union of Roofers, Waterproofers, and Allied Workers Local Union #36; Voices for Progress Education Fund; Warehouse Worker Resource Center; Western Center on Law and Poverty; 9to5

Opposition: None known

HISTORY

Source: Los Angeles Black Worker Center; Service Employees International Union

Related Pending Legislation: None known

Prior Legislation: AB 2534 (Shelley, 2000) would have provided that local governments are not pre-empted from providing or maintaining greater protections against discrimination than FEHA. AB 2534 died in the Assembly Judiciary Committee.

**************

1. Department of Fair Employment and Housing: Underfunding and Misguided Policies Compromise Civil Rights Mission (Dec. 18, 2013) California Senate Office of Oversight and Outcomes, p. 1 <http://sooo.senate.ca.gov/sites/sooo.senate.ca.gov/files/fair%20employment%20and%20housing%20final.pdf> (as of Apr. 29, 2017). ↑

2. Ibid. ↑

3. Id. at pp. 1-2 ↑