VETO  

Bill No: SB 218

Author: Bradford (D)

Amended: 9/6/19

Vote: 27

SENATE JUDICIARY COMMITTEE: 9-0, 4/23/19

AYES: Jackson, Borgeas, Allen, Caballero, Jones, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 5-0, 5/16/19

AYES: Portantino, Bradford, Hill, Jones, Wieckowski

NO VOTE RECORDED: Bates

SENATE FLOOR: 30-6, 5/21/19

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NOES: Bates, Grove, Moorlach, Morrell, Nielsen, Stone

NO VOTE RECORDED: Borgeas, Jones

SENATE FLOOR: 33-0, 9/14/19

AYES: Allen, Archuleta, Atkins, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: Bates, Dahle, Grove, Jones, Moorlach, Morrell, Stone

ASSEMBLY FLOOR: 50-17, 9/14/19 - See last page for vote

SUBJECT: Employment: discrimination enforcement: local government

SOURCE: Black Worker Center – Los Angeles

Los Angeles Black Worker Center

Policylink

Restaurant Opportunity Center

United Domestic Workers of America – AFSCME Local 3930

Warehouse Worker Resource Center

DIGEST: This bill authorizes local governments within the County of Los Angeles to enact and enforce workplace anti-discrimination laws, including establishing remedies and penalties for violations, and subject to specified procedural requirements.

ANALYSIS:

Existing federal law:

1. Makes it unlawful for employers with 15 or more employees to discriminate on the basis of race, color, sex, pregnancy status, religion, or national origin in all aspects of an employment relationship, including hiring, discharge, compensation, assignments, and other terms, conditions and privileges of employment. (Title VII of the Civil Rights Act of 1964; 42 U.S.C. 2000e et seq.)
2. Establishes an administrative agency, the Equal Employment Opportunity Commission (EEOC), charged with receiving, investigating, and adjudicating allegations of workplace discrimination. (42 U.S.C. § 2000e-4.)
3. Requires an aggrieved worker to exhaust the EEOC’s administrative remedies before filing an action for discrimination in court. (42 USCS § 2000e-5(f)(1).)
4. Permits state or local agencies to accept and investigate allegations that federal workplace antidiscrimination laws have been violated, provided that the state or local agency has entered into a worksharing agreement with the EEOC that requires specified case-handling procedures and coordination with the EEOC such that filing with the state or local agency also constitutes filing with the EEOC (so-called “dual filing”). (42 U.S.C. § 2000e-5(c).)

Existing state law:

1. Prohibits workplace discrimination on the basis 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 through the Fair Employment and Housing Act (FEHA). (Gov. Code § 12940.)
2. Establishes an administrative agency, the Department of Fair Employment and Housing (DFEH), responsible for receiving, investigating, and adjudicating allegations of workplace discrimination under FEHA. (Gov. Code § 12930.)
3. Requires an aggrieved worker to exhaust DFEH’s administrative remedies prior to filing a lawsuit in court for workplace discrimination. (CITATION.)
4. Expresses the intent of the Legislature to occupy the field of enforcing FEHA’s prohibition on workplace discrimination to the exclusion of any city, city and county, county, or other political subdivision of the state. (Gov. Code § 12993(c).
5. Permits aggrieved parties to petition the court of jurisdiction for review of administrative determinations. (Code Civ. Proc. § 1094.5.)

This bill:

1. Authorizes the legislative body of a local government within Los Angeles County to enact its own antidiscrimination ordinance relating to employment, including establishing remedies and penalties.
2. Provides that such a local ordinance may increase employee protection against discrimination but shall not decrease existing protections under FEHA.
3. Provides that a local ordinance may prohibit any conduct that independently constitutes an unlawful employment practice under FEHA and may prohibit conduct that is neither prohibited nor required by the Act, but the ordinance shall not conflict with FEHA by prohibiting conduct that the Act requires nor by requiring or authorizing conduct that the Act prohibits.
4. Authorizes the legislative body of a local government within Los Angeles County to create a local agency to investigate and enforce local antidiscrimination provisions, subject to specified procedural requirements.

Background

FEHA has been described as one of the strongest anti-discrimination laws in the nation. 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 § 12920.)

The State’s enforcement of FEHA has sometimes been criticized, however. Existing California law restricts the power to enforce FEHA to DFEH, to the exclusion of any enforcement by local governments. (Gov. Code § 12993(c).) Responding to all of the civil rights concerns across one of the nation’s largest and most populous states presents an enormous challenge. According to a 2013 report by the California Senate Office of Oversight and Outcomes: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.” 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.”

From the perspective of the author and sponsors of this bill, the State’s reliance on DFEH as the sole government agency enforcing FEHA raises other concerns as well. Even with offices in a few locations throughout the state, they believe, DFEH can feel removed and impersonal to civil rights complainants.

Looking for a way to boost California civil rights enforcement and bring civil rights enforcement closer to the people it affects, in 2017, Senator Bradford introduced SB 491. As introduced, SB 491 simply called for eliminating FEHA’s provision preempting local enforcement. There was some question, however, about the potential ramifications of making such a move. Could the blanket removal of the bar on local enforcement inadvertently cause some complainants to lose state or federal causes of action? Could it result in inconsistent enforcement of civil rights laws across the state and even allow for weaker civil rights protections in some parts of the state? Might DFEH lose some of its already limited resources as a result of lifting preemption? (Sen. Com. on Judiciary, Analysis of SB 491 (2017-2018 Reg. Sess.) as amended May 1, 2017, pgs. 4-5.)

With these questions in mind, the author opted to convert SB 491 into a mandate for a task force to study the matter and return to the Legislature with recommended legislation. While he vetoed SB 491, then Governor Brown embraced its intent and ordered DFEH to convene an advisory group to study the concept of local enforcement.

The DFEH advisory group report on local enforcement of FEHA

In response to the orders from Governor Brown, DFEH convened an advisory group of seven stakeholders and experts, including a law professor, a labor lawyer, an official from the City of Los Angeles, worker advocates, and a representative from the California Chamber of Commerce. After the group concluded its work, DFEH released its report on December 5, 2018. The report concluded that “DFEH and the advisory group find that local enforcement of anti-discrimination laws is feasible.”^[1] Indeed the report stated that:

[a]n effective mechanism for local enforcement of anti-discrimination employment laws could further advance the state’s efforts to combat discrimination. If not handled correctly, however, lifting of preemption could have significant negative consequences, including accidental forfeiture of state or federal rights.^[2]

The report went on to list a series of additional technical considerations that should be taken into account in the design of legislation authorizing local enforcement. Those concepts and considerations appear to have informed the crafting of this bill, though it is important to clarify that neither the advisory group nor DFEH sponsored or otherwise has any official position on the bill.

Within the County of Los Angeles only, this bill authorizes local governments to enact its own workplace civil rights ordinance, so long as it does not conflict with FEHA. This bill further authorizes local governments within Los Angeles County to form local enforcement agencies, empowered to investigate and remedy violations of the local ordinance. To mitigate the possibility that workers would lose any rights they possess under state and federal workplace civil rights laws, the bill sets forth a series of procedural requirements that the local agency would have to follow, including, among other things, automatic dual filing with the DFEH and assisting complainants to follow with the federal EEOC when appropriate.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, likely significant GF costs, possibly in the hundreds of thousands of dollars, for DFEH to implement new case management tools to receive and track dual-filed cases. Costs will depend on the number of complaints to local agencies instead of DFEH and the number of dual-filed cases.

SUPPORT: (Verified 10/20/19)

Black Worker Center – Los Angeles (co-source)

Los Angeles Black Worker Center (co-source)
Policylink (co-source)

Restaurant Opportunity Center (co-source)

United Domestic Workers of America – AFSCME Local 3930 (co-source)

Warehouse Worker Resource Center (co-source)

Alliance for Boys and Men of Color

Alliance for Community Transit – Los Angeles

Asian Americans Advancing Justice - California

Bet Tzedek Legal Services

California Immigrant Policy Center

California Labor Federation

CDTech

Clergy and Laity United for Economic Justice

Community Asset Development Redefining Education

Community Coalition

Community Health Councils

Ella Baker Center for Human Rights

Eric Garcetti, Mayor, City of Los Angeles

Food Chain Workers Alliance

Instituto de Educación Popular del Sur de California

Jobs to Move America

Koreatown Immigrant Workers Alliance

Labor Community Strategy Center

Legal Services for Prisoners with Children

Los Angeles Alliance for a New Economy

Los Angeles County Federation of Labor

Los Angeles Worker Center Network

National Day Laborer Organizing Network

National Employment Law Project

Physicians for Social Responsibility – Los Angeles

SCOPE

Service Employees International Union California

Southern Christian Leadership Conference of Southern California

Southside Coalition of Community Health Centers

St. John’s Well Child & Family Center

Strategic Actions for a Just Economy

Street Level Health Outreach

The Black AIDS Institute

The Fannie Lou Hamer Institute

Western Center on Law & Poverty

OPPOSITION: (Verified 10/20/19)

California Apartment Association

California Bankers Association

California Chamber of Commerce

California Farm Bureau Federation

California Professional Association of Specialty Contractors

California Restaurant Association

California State Council of the Society for Human Resource Management

Civil Justice Association of California

National Federation of Independent Business

Official Police Garages of Los Angeles

ARGUMENTS IN SUPPORT: According to the author, “while FEHA protects California workers from being discriminated on the basis of race, religion, sex, gender, and others, these safeguards are not always within reach of many workers. SB 218 removes the preemption provision from the Fair Employment and Housing Act to allow local jurisdictions [in Los Angeles County] to enforce FEHA’s employment provisions, as well as pass and enforce their own local anti-discrimination laws.”

As sponsor of the bill, the Los Angeles Black Worker Center writes: “Currently DFEH is underfunded, understaffed, and overburdened by the difficult task of being the first line of defense against both housing and workplace discrimination. In light of DFEH’s investigation delays, employers are unphased by the threat of an employee’s complaint due to the likelihood that the complaint will go unanswered. The department’s inability to address the overwhelming number of employment discrimination complaints filed each year further evidences the need to expand worker protections at the local level.” (Internal citations omitted.)

In support, the California Labor Federation 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 stronger.”

ARGUMENTS IN OPPOSITION: In opposition to this bill, a coalition of business and trade organizations led by the California Chamber of Commerce writes: [W]e are concerned with the confusion, uncertainty, and potential disruption that it may create regarding enforcement of anti-discrimination provisions in California. While the recent amendments limit the application of this bill to LA County, the concerns of allowing a local entity to enforce state anti-discrimination laws are still the same. It should be highlighted that no other state allows a local agency to enforce a state anti-discrimination law.

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 218 without my signature.

This bill would amend the Fair Employment and Housing Act (FEHA) to permit local jurisdictions in Los Angeles County to enact and enforce their own laws prohibiting employment discrimination as long as they are at a minimum as protective as the FEHA.

I am committed to combating and eradicating discrimination and have signed several measures this year to address discriminatory practices. However, I don't support lifting a preemption that has been in place for decades in the manner proposed in this bill. As crafted, this measure could create confusion, inconsistent enforcement of the law and increase costs without a corresponding increase in worker protections.

This bill leaves ambiguities about local governments' ability to enforce both local ordinances and FEHA. I invite the Legislature to come back with a measure that makes it clear that local enforcement measures are exclusively focused on local ordinances.

ASSEMBLY FLOOR: 50-17, 9/14/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bloom, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Chu, Diep, Eggman, Flora, Friedman, Gabriel, Eduardo Garcia, Gloria, Gonzalez, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Petrie-Norris, Quirk, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Santiago, Mark Stone, Ting, Voepel, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Boerner Horvath, Brough, Cooley, Cunningham, Fong, Frazier, Gallagher, Gray, Grayson, Kiley, Melendez, Obernolte, Patterson, Salas, Smith, Waldron

NO VOTE RECORDED: Arambula, Choi, Cooper, Daly, Cristina Garcia, Gipson, Mathis, Mayes, O'Donnell, Ramos, Rodriguez, Blanca Rubio

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

10/21/19 11:31:58

**** END ****

1. SB 491 Report (2018) California Department of Fair Employment and Housing https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB491Report2018.pdf (as of Apr.14, 2019) at p. 4. ↑

2. Id. at p. 3. ↑

 UNFINISHED BUSINESS  

Bill No: SB 218

Author: Bradford (D)

Amended: 9/6/19

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 4/23/19

AYES: Jackson, Borgeas, Allen, Caballero, Jones, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 5-0, 5/16/19

AYES: Portantino, Bradford, Hill, Jones, Wieckowski

NO VOTE RECORDED: Bates

SENATE FLOOR: 30-6, 5/21/19

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NOES: Bates, Grove, Moorlach, Morrell, Nielsen, Stone

NO VOTE RECORDED: Borgeas, Jones

ASSEMBLY FLOOR: 46-13, 9/14/19

(ROLL CALL NOT AVAILABLE)

SUBJECT: Employment: discrimination enforcement: local government

SOURCE: Black Worker Center – Los Angeles

Los Angeles Black Worker Center

Policylink

Restaurant Opportunity Center

United Domestic Workers of America – AFSCME Local 3930

Warehouse Worker Resource Center

DIGEST:

This bill authorizes local governments within the County of Los Angeles to enact and enforce workplace anti-discrimination laws, including establishing remedies and penalties for violations, and subject to specified procedural requirements.

Assembly Amendments

(1) limit the applicability of this bill to Los Angeles County; (2) empower the local workplace civil rights enforcement to make determinations of violations of the local ordinance and to enforce judgments; (3) require the local workplace civil rights enforcement agency to promulgate, post, and enforce rules and administrative procedures; (4) require a local workplace civil rights agency that does not have a workshare agreement with the federal government to help facilitate filing of a federal complaint when relevant; (5) specify that a complaint filed with the local agency shall also be deemed a complaint under the Fair Employment and Housing Act (FEHA) and set forth associated statutes of limitation; (6) allow a complainant to request a right-to-sue letter from the local agency at any time up until 10 days after receiving notice that a final decision will be issued; and (7) state explicitly that a complainant may obtain judicial review of the local agency’s decision through petition for a writ of mandate.

ANALYSIS:

Existing federal law:

1. Makes it unlawful for employers with 15 or more employees to discriminate on the basis of race, color, sex, pregnancy status, religion, or national origin in all aspects of an employment relationship, including hiring, discharge, compensation, assignments, and other terms, conditions and privileges of employment. (Title VII of the Civil Rights Act of 1964; 42 U.S.C. 2000e et seq.)
2. Establishes an administrative agency, the Equal Employment Opportunity Commission (EEOC), charged with receiving, investigating, and adjudicating allegations of workplace discrimination. (42 U.S.C. § 2000e-4.)
3. Requires an aggrieved worker to exhaust the EEOC’s administrative remedies before filing an action for discrimination in court. (42 USCS § 2000e-5(f)(1).)
4. Permits state or local agencies to accept and investigate allegations that federal workplace antidiscrimination laws have been violated, provided that the state or local agency has entered into a worksharing agreement with the EEOC that requires specified case-handling procedures and coordination with the EEOC such that filing with the state or local agency also constitutes filing with the EEOC (so-called “dual filing”). (42 U.S.C. § 2000e-5(c).)

Existing state law:

1. Prohibits workplace discrimination on the basis 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 through FEHA. (Gov. Code § 12940.)
2. Establishes an administrative agency, the Department of Fair Employment and Housing (DFEH), responsible for receiving, investigating, and adjudicating allegations of workplace discrimination under FEHA. (Gov. Code § 12930.)
3. Requires an aggrieved worker to exhaust DFEH’s administrative remedies prior to filing a lawsuit in court for workplace discrimination. (CITATION.)
4. Expresses the intent of the Legislature to occupy the field of enforcing FEHA’s prohibition on workplace discrimination to the exclusion of any city, city and county, county, or other political subdivision of the state. (Gov. Code § 12993(c).
5. Permits aggrieved parties to petition the court of jurisdiction for review of administrative determinations. (Code Civ. Proc. § 1094.5.)

This bill:

1. Authorizes the legislative body of a local government within Los Angeles County to enact its own antidiscrimination ordinance relating to employment, including establishing remedies and penalties.
2. Provides that such a local ordinance may increase employee protection against discrimination but shall not decrease existing protections under FEHA.
3. Provides that a local ordinance may prohibit any conduct that independently constitutes an unlawful employment practice under FEHA and may prohibit conduct that is neither prohibited nor required by the Act, but the ordinance shall not conflict with FEHA by prohibiting conduct that the Act requires nor by requiring or authorizing conduct that the Act prohibits.
4. Authorizes the legislative body of a local government within Los Angeles County to create a local agency to investigate and enforce local antidiscrimination provisions, subject to specified procedural requirements.

Background

FEHA has been described as one of the strongest anti-discrimination laws in the nation. 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 § 12920.)

The State’s enforcement of FEHA has sometimes been criticized, however. Existing California law restricts the power to enforce FEHA to DFEH, to the exclusion of any enforcement by local governments. (Gov. Code § 12993(c).) Responding to all of the civil rights concerns across one of the nation’s largest and most populous states presents an enormous challenge. According to a 2013 report by the California Senate Office of Oversight and Outcomes: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.” 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.”

From the perspective of the author and sponsors of this bill, the State’s reliance on DFEH as the sole government agency enforcing FEHA raises other concerns as well. Even with offices in a few locations throughout the state, they believe, DFEH can feel removed and impersonal to civil rights complainants.

Looking for a way to boost California civil rights enforcement and bring civil rights enforcement closer to the people it affects, in 2017, Senator Bradford introduced SB 491. As introduced, SB 491 simply called for eliminating FEHA’s provision preempting local enforcement. There was some question, however, about the potential ramifications of making such a move. Could the blanket removal of the bar on local enforcement inadvertently cause some complainants to lose state or federal causes of action? Could it result in inconsistent enforcement of civil rights laws across the state and even allow for weaker civil rights protections in some parts of the state? Might DFEH lose some of its already limited resources as a result of lifting preemption? (Sen. Com. on Judiciary, Analysis of SB 491 (2017-2018 Reg. Sess.) as amended May 1, 2017, pgs. 4-5.)

With these questions in mind, the author opted to convert SB 491 into a mandate for a task force to study the matter and return to the Legislature with recommended legislation. While he vetoed SB 491, then Governor Brown embraced its intent and ordered DFEH to convene an advisory group to study the concept of local enforcement.

The DFEH advisory group report on local enforcement of FEHA

In response to the orders from Governor Brown, DFEH convened an advisory group of seven stakeholders and experts, including a law professor, a labor lawyer, an official from the City of Los Angeles, worker advocates, and a representative from the California Chamber of Commerce. After the group concluded its work, DFEH released its report on December 5, 2018. The report concluded that “DFEH and the advisory group find that local enforcement of anti-discrimination laws is feasible.”^[1] Indeed the report stated that:

[a]n effective mechanism for local enforcement of anti-discrimination employment laws could further advance the state’s efforts to combat discrimination. If not handled correctly, however, lifting of preemption could have significant negative consequences, including accidental forfeiture of state or federal rights.^[2]

The report went on to list a series of additional technical considerations that should be taken into account in the design of legislation authorizing local enforcement. Those concepts and considerations appear to have informed the crafting of this bill, though it is important to clarify that neither the advisory group nor DFEH sponsored or otherwise has any official position on the bill.

Within the County of Los Angeles only, this bill authorizes local governments to enact its own workplace civil rights ordinance, so long as it does not conflict with FEHA. This bill further authorizes local governments within Los Angeles County to form local enforcement agencies, empowered to investigate and remedy violations of the local ordinance. To mitigate the possibility that workers would lose any rights they possess under state and federal workplace civil rights laws, the bill sets forth a series of procedural requirements that the local agency would have to follow, including, among other things, automatic dual filing with the DFEH and assisting complainants to follow with the federal EEOC when appropriate.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, likely significant GF costs, possibly in the hundreds of thousands of dollars, for DFEH to implement new case management tools to receive and track dual-filed cases. Costs will depend on the number of complaints to local agencies instead of DFEH and the number of dual-filed cases.

SUPPORT: (Verified 9/13/19)

Black Worker Center – Los Angeles (co-source)

Los Angeles Black Worker Center (co-source)
Policylink (co-source)

Restaurant Opportunity Center (co-source)

United Domestic Workers of America – AFSCME Local 3930 (co-source)

Warehouse Worker Resource Center (co-source)

Alliance for Boys and Men of Color

Alliance for Community Transit – Los Angeles

Asian Americans Advancing Justice - California

Bet Tzedek Legal Services

California Immigrant Policy Center

California Labor Federation

CDTech

Clergy and Laity United for Economic Justice

Community Asset Development Redefining Education

Community Coalition

Community Health Councils

Ella Baker Center for Human Rights

Eric Garcetti, Mayor, City of Los Angeles

Food Chain Workers Alliance

Instituto de Educación Popular del Sur de California

Jobs to Move America

Koreatown Immigrant Workers Alliance

Labor Community Strategy Center

Legal Services for Prisoners with Children

Los Angeles Alliance for a New Economy

Los Angeles County Federation of Labor

Los Angeles Worker Center Network

National Day Laborer Organizing Network

National Employment Law Project

Physicians for Social Responsibility – Los Angeles

SCOPE

Service Employees International Union California

Southern Christian Leadership Conference of Southern California

Southside Coalition of Community Health Centers

St. John’s Well Child & Family Center

Strategic Actions for a Just Economy

Street Level Health Outreach

The Black AIDS Institute

The Fannie Lou Hamer Institute

Western Center on Law & Poverty

OPPOSITION: (Verified 9/13/19)

California Apartment Association

California Bankers Association

California Chamber of Commerce

California Farm Bureau Federation

California Professional Association of Specialty Contractors

California Restaurant Association

California State Council of the Society for Human Resource Management

Civil Justice Association of California

National Federation of Independent Business

Official Police Garages of Los Angeles

ARGUMENTS IN SUPPORT: According to the author, “while FEHA protects California workers from being discriminated on the basis of race, religion, sex, gender, and others, these safeguards are not always within reach of many workers. SB 218 removes the preemption provision from the Fair Employment and Housing Act to allow local jurisdictions [in Los Angeles County] to enforce FEHA’s employment provisions, as well as pass and enforce their own local anti-discrimination laws.”

As sponsor of the bill, the Los Angeles Black Worker Center writes: “Currently DFEH is underfunded, understaffed, and overburdened by the difficult task of being the first line of defense against both housing and workplace discrimination. In light of DFEH’s investigation delays, employers are unphased by the threat of an employee’s complaint due to the likelihood that the complaint will go unanswered. The department’s inability to address the overwhelming number of employment discrimination complaints filed each year further evidences the need to expand worker protections at the local level.” (Internal citations omitted.)

In support, the California Labor Federation 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 stronger.”

ARGUMENTS IN OPPOSITION: In opposition to this bill, a coalition of business and trade organizations led by the California Chamber of Commerce writes:

[W]e are concerned with the confusion, uncertainty, and potential disruption that it may create regarding enforcement of anti-discrimination provisions in California. While the recent amendments limit the application of this bill to LA County, the concerns of allowing a local entity to enforce state anti-discrimination laws are still the same. It should be highlighted that no other state allows a local agency to enforce a state anti-discrimination law.

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

9/14/19 0:44:51

**** END ****

1. SB 491 Report (2018) California Department of Fair Employment and Housing https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB491Report2018.pdf (as of Apr.14, 2019) at p. 4. ↑

2. Id. at p. 3. ↑

SENATE THIRD READING

STR Bill Id:SB 218

Author:(Bradford)

As Amended Ver:September 6, 2019

Majority vote

SUMMARY:

Authorizes a local government located within the County of Los Angeles to enact and administer its own employment antidiscrimination law, accept employment claims under the state's Fair Employment and Housing Act (FEHA), and establish remedies and penalties for any violations.

Major Provisions

1. Authorizes the legislative body of a local government within the County of Los Angeles to enact its own antidiscrimination law relating to employment, including establishing remedies and penalties for violations.
2. Authorizes the local government to create a local agency to enforce these local antidiscrimination laws, including the authority to:
   1. Accept claims for violations of the local antidiscrimination ordinance directly from the complainant.
   2. Investigate complaints, including issuing subpoenas.
   3. Make determinations of violations of local antidiscrimination ordinances.
   4. Mediate and settle cases.
   5. Hold administrative hearings.
   6. Enforce judgments.
   7. Award the full scope of remedies available under the local antidiscrimination ordinance and under FEHA.
3. Requires that a local agency develop and enforce rules and procedures, including evidentiary rules created for the fair and efficient conduct of investigations, hearings, and appeals.
4. Provides that the Fair Employment and Housing Council may adopt regulations to set minimum standards for such rules or procedures.
5. Requires a local agency to establish a public internet website to include its local ordinance, administrative policies for the complaint process, and an annual report with information on the number of complaints accepted and their outcomes.
6. Requires the Department of Fair Employment and Housing (DFEH) to coordinate with the local agency to establish a dual filing relationship that allows the agency to accept complaints under FEHA and assigns obligations regarding the issuance of a right-to-sue notice.
7. Authorizes the local government to also designate a local agency to act as a fair employment practice agency if that local agency agrees to accept all claims that would be accepted by the federal government.
8. Permits an individual to file a complaint with both the local agency and with the DFEH, but would provide that initially filing a complaint with the DFEH extinguishes authorization to subsequently proceed under the local antidiscrimination ordinance.
9. Requires the DFEH to notify a complainant that initially filing with the DFEH extinguishes their right to file under the local antidiscrimination ordinance.
10. Authorizes a party to seek judicial review of a local agency's binding determination of a claim.

COMMENTS:

None.

According to the Author:

"DFEH is currently the only body in the state authorized to enforce the provisions of the FEHA. Due to this reason, DFEH receives an abundance of employment complaints (on average 24,000 annually), only a fraction of which are investigated by DFEH. Many complainants forego this administrative process and immediately request a right-to-sue from DFEH instead."

Arguments in Support:

UDW/AFSCME Local 3930, a sponsor of this bill, states, "SB 218 would make FEHA the floor and not the ceiling. This bill would expand, not decrease, a worker’s protections against employment discrimination by allowing workers the option to file a claim under a local agency instead of filing with a state or federal agency. SB 218 would preserve a worker’s state claims by creating a dual-filing process where any charge filed with a local agency that raises a FEHA claim will be dual-filed with DFEH, providing a great assistance in eliminating the current backlog of discrimination claims."

Arguments in Opposition:

A coalition of employer organizations, including the California Chamber of Commerce, argues in opposition, "As set forth in the SB 491 Report (the Report), there are numerous concerns raised with this proposal that we do not believe have been fully addressed in SB 218…

SB 218 expressly authorizes a local agency to accept and investigate complaints under FEHA, issue subpoenas, hold administrative hearings, and mediate/settle cases. As set forth on page 11 of the Report, allowing local agencies to enforce FEHA, can create several significant challenges."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, likely significant General Fund costs, possibly in the hundreds of thousands of dollars, for DFEH to implement new case management tools to receive and track cases. Costs will depend on the number of complaints to local agencies instead of DFEH and the number of dual-filed cases.

VOTES:

SENATE FLOOR: 30-6-2

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Bates, Grove, Moorlach, Morrell, Nielsen, Stone

ABS, ABST OR NV: Borgeas, Jones

ASM LABOR AND EMPLOYMENT: 6-0-1

YES: Kalra, Carrillo, Diep, Gonzalez, Jones-Sawyer, Luz Rivas

ABS, ABST OR NV: Flora

ASM JUDICIARY: 9-3-0

YES: Mark Stone, Chau, Chiu, Gonzalez, Holden, Kalra, Maienschein, Petrie-Norris, Reyes

NO: Gallagher, Kiley, Obernolte

ASM APPROPRIATIONS: 13-4-1

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Brough, Fong, Obernolte

ABS, ABST OR NV: Diep

UPDATED:

VERSION: September 6, 2019

CONSULTANT: Megan Lane / L. & E. / (916) 319-2091 FN: 0002006

SENATE THIRD READING

STR Bill Id:SB 218

Author:(Bradford)

As Amended Ver:September 3, 2019

Majority vote

SUMMARY:

Authorizes a local government located within the County of Los Angeles to enact and administer its own employment antidiscrimination law, accept employment claims under the state's Fair Employment and Housing Act (FEHA), and establish remedies and penalties for any violations.

Major Provisions

1. Authorizes the legislative body of a local government within the County of Los Angeles to enact its own antidiscrimination law relating to employment, including establishing remedies and penalties for violations.
2. Authorizes the local government to create a local agency to enforce these local antidiscrimination laws, including the authority to:
   1. Accept claims for violations of the local antidiscrimination ordinance directly from the complainant.
   2. Investigate complaints, including issuing subpoenas.
   3. Mediate and settle cases.
   4. Hold administrative hearings.
   5. Award the full scope of remedies available under the local antidiscrimination ordinance and under FEHA.
3. Requires the Department of Fair Employment and Housing (DFEH) to coordinate with the local agency to establish a dual filing relationship that allows the agency to accept complaints under FEHA and assigns obligations regarding the issuance of a right-to-sue notice.
4. Authorizes the local government to also designate a local agency to act as a fair employment practice agency if that local agency agrees to accept all claims that would be accepted by the federal government.
5. Permits an individual to file a complaint with both the local agency and with the DFEH, but would provide that initially filing a complaint with the DFEH extinguishes authorization to subsequently proceed under the local antidiscrimination ordinance.
6. Requires the DFEH to notify a complainant that initially filing with the DFEH extinguishes their right to file under the local antidiscrimination ordinance.

COMMENTS:

In 2017, SB 491 (Bradford) initially sought to eliminate state preemption in the area of enforcement of employment antidiscrimination law. As the bill progressed, it was amended to create a task force to study the practical and procedural challenges of adopting a local enforcement mechanism. While the bill was vetoed by Governor Brown, he instructed the Department of Fair Employment and Housing (DFEH) to conduct a task force on the feasibility of creating a local enforcement model. The advisory group, comprised of seven subject matter experts, met and issued a report in December 2018. This measure is a result of the findings and recommendations in SB 491.

According to the Author:

"DFEH is currently the only body in the state authorized to enforce the provisions of the FEHA. Due to this reason, DFEH receives an abundance of employment complaints (on average 24,000 annually), only a fraction of which are investigated by DFEH. Many complainants forego this administrative process and immediately request a right-to-sue from DFEH instead."

Arguments in Support:

UDW/AFSCME Local 3930, a sponsor of the bill, states, "SB 218 would make FEHA the floor and not the ceiling. This bill would expand, not decrease, a worker's protections against employment discrimination by allowing workers the option to file a claim under a local agency instead of filing with a state or federal agency. SB 218 would preserve a worker's state claims by creating a dual-filing process where any charge filed with a local agency that raises a FEHA claim will be dual-filed with DFEH, providing a great assistance in eliminating the current backlog of discrimination claims."

Arguments in Opposition:

A coalition of employer organizations, including the California Chamber of Commerce, argues in opposition, "As set forth in the SB 491 Report (the Report), there are numerous concerns raised with this proposal that we do not believe have been fully addressed in SB 218…

SB 218 expressly authorizes a local agency to accept and investigate complaints under FEHA, issue subpoenas, hold administrative hearings, and mediate/settle cases. As set forth on page 11 of the Report, allowing local agencies to enforce FEHA, can create several significant challenges:

1. Potential lack of consistency regarding statute of limitations for investigations;
2. Lack of consistency with regard to procedural regulations;
3. Lack of consistency in the application and interpretation of FEHA."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee likely significant General Fund costs, possibly in the hundreds of thousands of dollars, for DFEH to implement new case management tools to receive and track cases. Costs will depend on the number of complaints to local agencies instead of DFEH and the number of dual-filed cases.

VOTES:

SENATE FLOOR: 30-6-2

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Bates, Grove, Moorlach, Morrell, Nielsen, Stone

ABS, ABST OR NV: Borgeas, Jones

ASM LABOR AND EMPLOYMENT: 6-0-1

YES: Kalra, Carrillo, Diep, Gonzalez, Jones-Sawyer, Luz Rivas

ABS, ABST OR NV: Flora

ASM JUDICIARY: 9-3-0

YES: Mark Stone, Chau, Chiu, Gonzalez, Holden, Kalra, Maienschein, Petrie-Norris, Reyes

NO: Gallagher, Kiley, Obernolte

ASM APPROPRIATIONS: 13-4-1

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Brough, Fong, Obernolte

ABS, ABST OR NV: Diep

UPDATED:

VERSION: September 3, 2019

CONSULTANT: Megan Lane / L. & E. / (916) 319-2091 FN: 0001618

Date of Hearing: August 14, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 218

Author:(Bradford) – As Amended Ver:July 10, 2019

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

SUMMARY:

This bill allows local governments to enact and enforce their own antidiscrimination provisions as well as Fair Employment and Housing Act (FEHA) provisions. Specifically, this bill:

1. Authorizes a local government to enact its own employment-related antidiscrimination ordinance so long as protections in the ordinance do not decrease existing FEHA protections. This local ordinance cannot conflict with FEHA by prohibiting conduct that FEHA requires or require conduct that FEHA prohibits. The local government may create a local agency to investigate and enforce local antidiscrimination provisions.
2. Requires the Department of Fair Employment and Housing (DFEH) to coordinate with a local agency to establish a dual-filing relationship that allows the agency to accept complaints under FEHA.
3. Permits an individual to file a complaint with both the local agency and with the DFEH, but would provide that initially filing a complaint with the DFEH extinguishes authorization to subsequently proceed under the local antidiscrimination ordinance.
4. Requires the DFEH to notify a complainant that initially filing with the DFEH extinguishes their right to file under a local antidiscrimination ordinance.

FISCAL EFFECT:

Likely significant GF costs, possibly in the hundreds of thousands of dollars, for DFEH to implement new case management tools to receive and track dual-filed cases. Costs will depend on the number of complaints to local agencies instead of DFEH and the number of dual-filed cases.

COMMENTS:

1. Fair Employment Practice Agency (FEPA). A FEPA is an agency that enforces its own laws prohibiting discrimination. Typically, a FEPA enforces state or local laws that are similar to federal laws enforced by the EEOC, and in many cases these state and local laws offer greater protection to workers. DFEH is California’s FEPA, which means DFEH works with EEOC and in many cases dual-files a charge with the EEOC.
2. Local FEPAs. About 50 local governments around the country operate FEPAs. These local FEPAs, such as ones operating in Baltimore, Philadelphia and New York City, enforce local laws only. There is no example or model where a local FEPA directly enforces state law.
3. Purpose. According to the author, SB 218 will allow local jurisdiction sto enforce FEHA’s employment provisions. The author notes that DFEH receives 24,000 complaints each year but only investigates “a fraction.”
4. DFEH Report. SB 491 (Bradford), of the 2017-18 Legislative Session, would have directed FEH to create a working group to study the ramifications of allowing local agencies to enforce FEHA. However, Governor Brown vetoed SB 491 and instead directed DFEH to create an advisory group to explore the matter. DFEH’s released “SB 491 Report” explored different ways local FEPAs could enforce local or laws.
5. Process matters, and this bill is vague on process. This bill clearly states that the standards of any local ordinance must be equal to, or exceed, standards under FEHA. However, this bill is either silent or vague on what happens when a local agency investigates and adjudicates a case. As the Assembly Judiciary Committee notes in its analysis, this bill does not establish minimum procedural requirements for the local agency’s hearing and adjudication process. This bill does not directly address issues such as the statute of limitations, procedural regulations, exhaustion of remedies and review of a local agency’s administrative determination. The above issues matter because process matters in whether an employee’s grievance is adequately addressed.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: July 9, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 218

Author:(Bradford) – As Amended Ver:April 25, 2019

As Proposed to be Amended

SENATE VOTE: 30-6

SUBJECT: Employment: discrimination enforcement: local government

KEY ISSUE: Should the express preemption language in the Fair Employment and Housing Act (FEHA) BE MODIFIED so that local governments may enact local employment discrimination ordinances and enforce both the local ordinance and, if it chooses, the employment discrimination provisions of FEHA?

SYNOPSIS

SB 218 would modify the preemption language in the Fair Employment and Housing Act (FEHA) so that local governments could adopt their own anti-discrimination ordinances and enforce them through local fair employment agencies. SB 218 would also allow local governments and agencies, if they choose, to enforce the provisions of FEHA by establishing a dual-filing and work-sharing agreement with the Department of Fair Employment and Housing (DFEH). According to the author and sponsors, DFEH receives more complaints than it can realistically investigate, let alone resolve, which is why many employees file with DFEH in order to obtain a “right-to-sue” letter so they can enforce their rights in court. The author believes that SB 218 will provide workers with greater protection by giving them the option to a file a claim with a local agency while simultaneously relieving some of the burden on DFEH.

The author and sponsors stress that SB 218 will preserve a worker’s state right claims through a dual-filing agreement, similar to that which exists between DFEH and the federal Equal Employment Opportunity Commission (EEOC). Indeed, federal law already permits local enforcement of employment discrimination laws, and at least 50 local jurisdictions around the country have fair employment practice agencies (FEPAs) that enforce federal laws as well as local anti-discrimination ordinances. The only thing that prevents local jurisdictions in California from making such arrangements and creating local FEPAs is the preemption language in FEHA. Presumably, if SB 218 were enacted, only the larger cities would have the volume of claims that would justify creating a local enforcement agency with the power to accept claims, investigate complaints, mediate and settle cases, hold administrative hearings, and enforce its decisions.

Dozens of labor, religious, human rights, and social justice groups support this bill. Several business groups, led by the California Chamber of Commerce, oppose the bill because they fear that it will create inconsistency in enforcing FEHA and a confusing patchwork of local laws. As discussed in the analysis, the California Employment Lawyers Association (CELA) does not oppose this bill, but has raised concerns about the lack of specific details relating to hearing and appeals process. The author will take two clarifying amendments in this Committee. Those amendments are already reflected in the bill summary and analysis below.

SUMMARY: Modifies the preemption provisions in the Fair Employment and Housing Act (FEHA) to allow local governments to enact and enforce local employment discrimination ordinances, create local enforcement agencies, and enforce FEHA provisions if they have a dual-filing and work-sharing agreement with the Department of Fair Employment and Housing. Specifically, this bill:

1. Removes the word “employment” from the provision in existing law that states the Legislature’s intent that the state shall occupy the field of regulation in employment and housing discrimination and enforcement of FEHA.
2. Authorizes the legislative body of a local government to enact its own antidiscrimination ordinance relating to employment, including remedies and penalties for violations. Specifies that the ordinance may increase employee protection against discrimination but shall not decrease existing protections under FEHA. Allows the local ordinance to prohibit conduct that constitutes an unlawful employment practice under FEHA and prohibit conduct that is neither prohibited nor required by FEHA, but the ordinance shall not conflict with FEHA by prohibiting conduct that FEHA requires nor by requiring conduct that FEHA prohibits.
3. Authorizes the legislative body of a local government to create a local agency to investigate and enforce local antidiscrimination provisions. Provides that the local agency shall have the authority to do all of the following: (a) accept claims for violations of the local ordinance directly from a complainant; (b) investigate complaints, including the authority to issue subpoenas; (c) mediate and settle cases; and (d) hold administrative hearings. Specifies further that the local agency may award the full scope of remedies available under FEHA and any remedies available under the local ordinance.
4. Requires the Department of Fair Employment and Housing (DFEH) to coordinate with the local agency to establish a dual-filing relationship that allows the agency to accept complaints under FEHA, as specified.
5. Authorizes the legislative body of a local government to designate the local agency to act as a fair employment practices agency (FEPA) if the local agency agrees to accept employment discrimination complaints under federal law and enters into a work-sharing agreement with the federal Equal Employment Opportunity Commission (EEOC), as specified. If the local agency is not designated as a FEPA for these purposes it shall notify complainants of their right to file under federal law.
6. Provides that the existence of a local agency shall not preclude a complaint from also being filed with DFEH pursuant to FEHA, and it specifies that filing a complaint with a local agency is not a prerequisite to filing a complaint under FEHA. However, filing a complaint with DFEH for a violation of FEHA shall extinguish an individual’s right to subsequently file a complaint based on the same allegations with the local agency under the local ordinance.
7. Provides that when a complaint is dual-filed at the local agency, the agency’s administrative process shall satisfy FEHA’s administrative exhaustion requirements. Provides further that a locally filed complaint shall not be filed with or transferred to DFEH, nor shall DFEH be empowered or required to review the agency’s administrative determination, unless both the department and the agency enter a work-sharing agreement that permits such refiling, transfer, or review.
8. Provides that when a complaint is dual-filed with a local agency and DFEH, the local agency is empowered to issue a right-to-sue notice under FEHA; however, the issuance of the right-to-sue notice shall terminate the local agency’s role with respect to the complaint.
9. Provides for the issuance of the right-to-sue notice as follows:
   1. If a local ordinance does NOT give the local agency the authority to issue a binding adjudication of a complaint, the complainant may request and receive a right-to-sue notice at any time during the administrative process, and the agency shall issue the right-to-sue notice at the completion of its investigation or at the maximum time provided for investigations by DFEH, whichever is sooner.
   2. If the local ordinance does give the local agency the authority to issue a binding adjudication of a complaint, the complainant may request and receive a right-to-sue notice at any time during the administrative process up to the conclusion of the complainant’s and the respondent’s opportunities to submit evidence and arguments to the adjudicating body before a binding decision is issued. Thereafter, no right-to-sue notice shall be issued, and claims under FEHA may be pursued with the local agency only through administrative adjudication and subsequent appeals.
   3. Requires the local agency to issue a right-to-sue notice at the completion of its investigation or at the maximum time provided for investigations by DFEH, whichever is sooner, except if the local agency completes its investigation and issues a notice that it will seek a binding administrative decision in favor of the complainant. Thereafter, the right-to-sue notice may only be issued in accordance with b) above.

EXISTING LAW:

1. Prohibits, under FEHA, discrimination in housing and employment on the bases of specified characteristics and establishes procedures for enforcement by the DFEH. States legislative intent that FEHA shall occupy the field of regulation of discrimination in employment and housing. (Government Code Sections 12900 et seq., 12993.)
2. Establishes, under federal law, the Equal Employment Opportunity Commission (EEOC) for the purpose of receiving, investigating, and resolving complaints of employment discrimination. Permits state or local agencies to accept and investigate complaints alleging a violation of federal employment anti-discrimination laws and to enter into a work-sharing agreement with EEOC. Specifies that filing with a state or local agency constitutes “double-filing” with the EEOC. (42 U.S.C. Sections 2000e et seq.)

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

COMMENTS: According to the author and co-sponsors of SB 218, the Department of Fair Employment and Housing (DFEH) annually receives about 24,000 complaints alleging employment discrimination under the Fair Employment and Housing Act (FEHA). Because of limited staff and resources, the author contends, only “a fraction” of these complaints are ever investigated by DFEH, which is why many employees forego this process and request a “right-to-sue” letter so they can enforce their rights in courts. To ease the burdens on the DFEH and to give workers an additional and local option for filing a workplace discrimination complaint, SB 218 would also allow local governments to enact local employment discrimination ordinances and establish local enforcement agencies to enforce those ordinances. If a local government so chooses, it could enter into a work-sharing and dual-filing agreement with DFEH and thereby have the authority to enforce complaints under FEHA, as well as complaints under the local ordinance. This bill would also, consistent with federal law, authorize local governments to enter into an agreement with the federal Equal Employment Opportunity Commission (EEOC) in order to accept and hear complaints arising under federal anti-discrimination laws. Several major cities and other local jurisdictions outside of California already have local agencies with the authority to enforce local and federal antidiscrimination laws. Local governments in California are barred from doing so, however, because of legislative intent language declaring that FEHA occupies the field on the adoption and enforcement of employment discrimination laws. (Government Code Section 12993.) Therefore, in addition to authorizing local ordinances and local enforcement agencies, SB 218 modifies the preemption intent language in FEHA so as to eliminate preemption on employment discrimination. FEHA would continue to occupy the field on housing discrimination under SB 218.

Supporters of this bill contend not only that DFEH lacks the resources to investigate and resolve all of the employment discrimination complaints that it receives; as important, they contend that workers feel more comfortable bringing complaints to a local agency instead of a more distant state agency. Overall, the author and supporters hope that SB 218 will create an additional option for workers to file a complaint and create an additional agency with the resources and manpower to investigate and, one hopes, resolve such complaints in a more fair and timely manner.

Follow up to SB 491 and SB 491 Advisory Group: In 2017, this Committee heard SB 491 (Bradford). That bill initially would have simply eliminated the express preemption language in FEHA and thereby allow local governments to enact and enforce their own measures. In its final version, however, SB 491 would have required DFEH to convene an advisory group on the feasibility and consequences of authorizing local governments to enforce FEHA. Even though Governor Brown vetoed SB 491, he did so not because he disagreed with the aims of the legislation, but because he did not think that legislation was necessary to have DFEH conduct a study. So instead, Governor Brown merely directed DFEH to create an advisory group to explore the issue. That group convened in April of 2018 and completed its work in November of 2018 and issued its required report.

The advisory group’s final report was somewhat ambiguous. On the one hand, the report concluded that an “effective mechanism for local enforcement of anti-discrimination employment laws could further advance the state’s efforts to combat discrimination.” On the other, the report warned, if “not handled correctly . . . lifting of preemption could have significant negative consequences, including accidental forfeiture of state or federal rights.” (DFEH, SB 491 Report, 2018, p.3.) This bill seeks to avoid the problem of “accidental forfeiture” by requiring “dual-filing.”

The DFEH report also concluded that rather than simply remove the field preemption language from existing law, it would raise fewer policy concerns to simply modify the preemption language so that local governments could enact and enforce their own ordinances, but that the state, through DFEH, would still be solely responsible for the enforcement of FEHA. (SB 491 Report, p. 4.) SB 218 goes beyond this recommendation by allowing local governments to enforce their own ordinance and, if they choose, to enforce FEHA, albeit under a work-sharing and dual-filing agreement with FEHA. As the Chamber of Commerce notes in its letter of opposition, and as DFEH notes in its SB 491 Report, while it is true that about 50 local jurisdictions outside of California have local agencies that are functionally analogous to DFEH, the local agencies in these jurisdictions enforce local laws; it appears that none of them enforce state antidiscrimination laws, as this bill would allow. (SB 491 Report, p. 9.)

Existing DFEH Complaint Process and “Right to Sue” Letters: Under FEHA, an employee cannot bring an action alleging employment discrimination in court unless the employee first exhaust administrative remedies with DFEH. That administrative process begins when an employee files an intake form with DFEH, which can be filed online, by phone, in person, or by mail. If DFEH believes that the complaint falls within its jurisdiction and raises a cognizable claim, the DFEH Enforcement Division will draft a complaint, have the complainant sign it, and serve it upon the employer who allegedly committed the violation. Service of the complaint launches an investigation and, in some cases, efforts on the part of DFEH to urge settlement through informal or formal mediation. In the past, FEHA established the Fair Employment and Housing Commission, which had the authority to, among other things, issue subpoenas and conduct adjudicatory hearings. However, in 2012, a budget bill, SB 1038 (Chap. 46, Stats. 2012) eliminated the Commission and instead allowed DFEH to refer disputes to its Dispute Resolution Division for voluntary or mandatory mediation. If mediation fails to resolve the dispute, the complaint is turned over to DFEH’s Legal Division, which may file a civil action in court. Only 54 cases reached the point of referral to the Legal Divisions in 2017. Significantly, unlike the local agencies proposed in SB 218, DFEH no longer holds hearings and has no power to issue a final determination. It can require mediation and, if that fails, bring a civil action in court on the employee’s behalf.

Alternatively, DFEH, after its initial investigation, can issue a “right-to-sue” letter when requested by the complainant. Issuance of the right-to-sue letter relieves DFEH of any further obligation to investigate the case. For employees, receipt of the right-to-sue letter fulfills FEHA’s administrative exhaustion requirement and allows them to seek relief on their own in a civil action through the courts. According to the SB 491 Report, in 2017 about 12,000 complaints included requests for a right-to-sue letter, or about one-half of the approximately 24,000 complaints that are filed with DFEH annually.

The Complaint Process Proposed under SB 218: Presumably, if SB 218 were to become law, some portion of the 24,000 annual complaints now filed with DFEH would be filed with the local agency. Those complaints could be brought under the local ordinance or under FEHA (assuming the same underlying conduct violated both the local ordinance and FEHA). It is impossible to know, or even speculate, the exact portion of complaints that would be re-directed to a local agency. However, where the discriminatory conduct is not prohibited by FEHA but is prohibited by the local ordinance – or where the discrimination is based on a characteristic not protected by FEHA but protected by the local ordinance – SB 218 would provide an avenue and remedy to aggrieved workers that is not available under existing law.

Perhaps one of the most significant differences between the proposed process under SB 218 and the existing process under FEHA concerns the adjudication of the dispute and the role of the courts. As noted, since 2012, DFEH no longer has the authority to hold adjudicatory hearings and issue decisions. However, the local agencies under SB 218 will have the authority not only to take claims, investigate complaints, and mediate and settle cases, the bill also assumes that at least some of the agencies will have the power to act as an “adjudicating body” with the power to issue a “binding decision.” However, the bill anticipates that some local agencies, depending upon the local ordinance, will not have the power to issue a “binding adjudication of the complaint.” (See proposed Section 12999 (e), page 5, lines 1-12.) The key difference between local agencies that have such powers and those that do not appears to be in the process by which the right-to-sue letter will be issued. If the agency does not have the power to issue a binding decision, the complainant may request and receive a right-to-sue letter at any point during the process and the agency must issue the right to sue letter at the completion of its investigation or by the maximum time provided for investigations by DFEH, whichever is sooner. If the local agency does have the power to issue a binding decision, the complainant may request and receive a right to sue letter up to the conclusion of the time that parties submit evidence and arguments, but it must be before the adjudicating body issues a binding decision. Once a binding decision is issued, the right to sue letter is no longer available and the employee may only pursue the matter through whatever appeals process is provided in the ordinance.

Remaining Questions and Concerns Regarding the Local Agency Process: SB 218 is silent or ambiguous about many details of the local agency’s administrative hearing and adjudication process. It must be assumed, therefore, that many of these details will be spelled out in the local ordinance or in the agreement between the local agency and DFEH. Having said that, some of the details that are provided in the bill raise questions and concerns. Some of these questions and concerns come from the Committee and have been communicated to the author and sponsors. Some of these concerns were brought to the attention of the Committee by the California Employment Lawyers Association (CELA). While CELA does not oppose this bill and strongly supports it intent – its members represent employees, after all – it nonetheless is concerned that the bill leaves many procedural questions unanswered. The author and sponsors have responded to these concerns by pointing out that the bill requires the local ordinance to be at least as protective of employee rights as FEHA. However, this provision of the bill speaks only substantive rights, not procedural rights. For example, a local ordinance must protect employees from the same classes of discrimination, and it can make additional forms of employer conduct a form of unlawful discrimination. However, even the most robust and expansive substantive protections can be rendered toothless by limited procedural protections.

Below is a list of issues that the author may wish to consider if the bill moves out of this Committee, which could be addressed in either the Appropriations Committee (the bill’s next stop) or on the Assembly Floor.

The Nature of the Binding Adjudication: Of special concern to CELA, and to the Committee, is the relative silence on the local agencies apparent power to hold adjudicatory hearings and issue “binding” decisions. While the author and sponsors contend that the local agencies will follow procedures that are at least as protective as those used by DFEH, this ignores the fact, as noted above, that DFEH no longer holds hearings or issue determinations, binding or otherwise. Rather, DFEH investigates the complaint and impose mandatory mediation, but if that fails DFEH can only remedy a violation by filing a civil action in court on behalf of the employee. Thus, when it comes to hearings, adjudication, and the issuance of binding decisions, the local agency cannot follow the procedures of DFEH for the simple reason that there are none.

Curiously, SB 218 does not expressly grant these powers of binding adjudication; rather, it presumes them. For example, proposed Section 12998 (b) grants to the local agencies the authority to do the following: (1) accept claims; (2) investigate complaints, including power to issue subpoenas; (3) mediate and settle cases; and (4) hold administrative hearings. This list of powers does not include the power to issue binding decisions or establish a process by which a party could appeal the decision. Nonetheless, later sections of the bill presume that the agencies will have this power, and that there will be some process of administrative appeal. For example, as noted above, a local agency will not issue a right-to-sue letter once a binding decisions has been rendered, and it declares that, thereafter, the employee’s only option will be to pursue the matter “with the agency” and “only through administrative adjudication and subsequent appeals.” This is the first time in the bill that there is any reference to an “appeal.” Who exactly would hear this appeal? Presumably this refers to an administrative appeal rather than a judicial appeal, since it must be pursued “with the agency.” So does this mean that after the employee received an unfavorable and “binding” decision from the local agency, the employee would then appeal the decision to the same local agency that just ruled against the employee? (For that matter, the same would be true for an employer, who would appeal to the same agency that ruled against the employer.) The bill does not provide any express means by which an employee could seek judicial review of a bungled but nonetheless “binding” decision. It is of course possible that an employee who was unsatisfied with the agency’s decision could seek a writ of mandate from a superior court under Code of Civil Procedure Section 1094.5, but it would be helpful to clarify the employee’s options, if any, for seeking judicial review.

In short, if the bill moves forward, the Committee strongly recommends that the author consider clarifying the minimum procedural requirements for the local agency’s hearing and adjudication process and set forth the bases for any appeal of the agency’s binding decision, and most important, to whom that appeal could be taken. The appeal certainly should not be heard by the same body that rendered the objectionable decision. If there is an opportunity to appeal to the courts, this should be specified in the bill, even if the only judicial redress is seeking a writ of mandate.

Right to Sue Notices: The process for obtaining a right-to-sue “notice” seems exceedingly complex compared to the manner by which a right-to-sue “letter” is obtained from DFEH. This is made more complicated by the fact the process for obtaining a right-to-sue notice varies according to whether the local ordinance gives the local agency the power to issue a binding decision or not, and the stage of the administrative process. If the bill moves forward, the author may wish to consider if there is a more streamlined method of providing a right-to-sue letter if the employee prefers that to having the agency investigate and adjudicate the matter.

Concerns Raised by the California Employment Lawyers Association: CELA, which is otherwise favorably inclined toward the bill, has raised a number of concerns about the nature of the binding adjudicatory process. The bill indirectly suggests that there will be some opportunity for both sides to present evidence and arguments (since the employee can request and receive a right-to-sue letter up to that point), but CELA is concerned that the bill does not specify how that important process of presenting evidence and arguments will work. The suggestion by the sponsors that the process will be as or more protective as the DFEH process does not address CELA’s concerns because, as noted above, DFEH no longer has a commission that conducts hearings or makes final determinations, so that there are not state-level procedures by which to assess the local procedures.

CELA has presented to the Committee, and apparently to the author and sponsor, the following specific recommendations:

1. Make it clear that an employee can appeal to the courts if the decisionmaker gets it wrong.
2. Make it clear that the decision of the adjudicating body should be in writing, based on the record, and include a statement of the factual and legal basis of the decision, as this written record will be especially important if the employee wishes to appeal or seek a writ of mandate.
3. Ensure that all parties have reasonable opportunity to refute the evidence by written or oral presentation.
4. Make it clear that, as under FEHA, a public employee is not required to exhaust administrative remedies.
5. Make sure that all related claims are tolled as soon as a complaint is filed, so that an employee does not lose a viable claim while there is an investigation, for example.

It is the Committee’s understanding that CELA has communicated these concerns to the author and co-sponsors and that they will continue to discuss these issues if the bill moves forward.

Concerns Raised by the Chamber of Commerce: It is noteworthy that the California Chamber of Commerce, which is made up largely of business and employer groups, and CELA, an association of lawyers who represent employees, both express similar concerns about the lack of specificity and clarity on issues such as the statute of limitations, procedural regulations, exhaustion of remedies, and review of a local agency’s administrative determination. No doubt different fears lay behind these common concerns, as the former no doubt fears procedures that will be unfair to the employer, while the latter fears procedures will be unfair to the employee. Nonetheless, both sides legitimately want to know how the hearing, adjudication, and any review or appeal process will work, so that they can most effectively represent their respective clients.

Author’s Amendments: Although DFEH, as is its usual custom, does not have a position on this bill, it nonetheless offered valuable technical assistance to the Committee and recommended two clarifying amendments that will further the aims of the bill. The author will amend, in this Committee, subdivisions (b) and (c) of proposed Section 12999, starting on page 4, line 32 of the bill in print, as follows:

12999. (a) The existence of a local agency shall not preclude a complaint from also being filed under the act with the department. Filing a complaint with an agency is not a prerequisite to filing a complaint under the act.

(b) Initially filing a claim with the department for a violation of the act shall extinguish an individual’s right to subsequently file a complaint based on the same allegations with an agency under a local antidiscrimination ordinance. The department shall notify the complainant of their right to dual file their complaint with an agency and the department and that filing initially with the department extinguishes their right to file a complaint under a local antidiscrimination ordinance.

(c) When a complaint is dual filed at a local agency, the agency’s administrative process shall satisfy the act’s administrative exhaustion requirements. A locally filed complaint shall not be refiled with or transferred to the department, nor shall the department be empowered or required to review the agency’s administrative determination, unless both the department and the agency enter a work-sharing agreement that permits such refiling, transfer, or review.

Arguments in Support: According to the author, DFEH “is currently the only body in the state authorized to enforce the provisions of [FEHA].” As a result, the author contends, “DFEH receives an abundance of employment complaints (on average 24,000 annually),” but only “a fraction of which are investigated by DFEH. Many complainants forego this administrative process and immediately request a right-to-sue letter from DFEH instead. SB 218 removes the preemption provision from the Fair Employment and Housing Act to allow local jurisdictions to enforce FEHA’s employment provisions, as well as pass and enforce their own local anti-discrimination laws.”

In support of this bill, UDW/AFSCME Local 3930, one of the co-sponsors of this bill, writes:

California enacted FEHA in 1959 to promote the cause of civil rights and to protect certain groups often subjected to employment discrimination. Unfortunately, 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. The Department of Fair Employment and Housing (DFEH), the agency tasked with enforcing the act, has experienced significant increases in the number of incoming employment discrimination claims, approximately 24,000 per year. This influx of claims has increased demand on DFEH and they have struggled to provide sufficient processing.

SB 218 would make FEHA the floor and not the ceiling. This bill would expand, not decrease, a worker’s protections against employment discrimination by allowing workers the option to file a claim under a local agency instead of filing with a state or federal agency. SB 218 would preserve a worker’s state claims by creating a dual-filing process where any charge filed with a local agency that raises a FEHA claim will be dual-filed with DFEH, providing a great assistance in eliminating the current backlog of discrimination claims.

Arguments in Opposition: The California Chamber of Commerce, and the several business groups that signed its letter of opposition, oppose SB 218 because they are “concerned with the confusion, uncertainty, and potential disruption that it may create regarding local enforcement of anti-discrimination provisions in California.”

Specifically, the Chamber sets forth three general areas of concern. First, the Chamber contends that SB 218 will result in “inconsistency in [the] application of FEHA,” as an agency in Los Angeles “could interpret FEHA differently than a local agency in San Francisco, which means employers in different parts of the state could have different protections and procedures for handling discrimination complaints. This inconsistency will create confusion, uncertainty, and challenges for employers and employees.” Second, the Chamber contends that SB 218 will lead to a “local patchwork of anti-discrimination laws,” which in turn will create “a patchwork of inconsistent enforcement and remedies throughout the state, incentivize forum shopping, and discourage business growth.” Third, the Chamber contends that SB 218 will create “confusion within the DFEH process.” The Chamber argues, for example, that proposed Section 12999 “appears to preempt the DFEH’s authority with regard to requiring an employee to exhaust the administrative remedies” and eliminates “the right of DFEH to review the local agency’s administrative determination.”

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles Black Worker Center (co-sponsor)

PolicyLink (co-sponsor)

Restaurant Opportunities Center of Los Angeles (co-sponsor)

UDW/AFSCME Local 3930 (co-sponsor)

Warehouse Worker Resource Center (co-sponsor)

Alliance for Boys and Men of Color

Alliance for Community Transit - Los Angeles

Bet Tzedek

Black Aids Institute

California Immigrant Policy Center

California Labor Federation

California State Council of Service Employees

City of Los Angeles

Clergy and Laity United For Economic Justice

Community Asset Development Redefining Education

Community Health Councils

Ella Baker Center for Human Rights

Fannie Lou Hamer

Food Chain Workers Alliance

Instituto De Educacion Popular Del Sur De California

Jobs to Move America

Labor Community Strategy Center

Los Angeles Alliance for a New Economy

Los Angeles County Federation of Labor

Los Angeles Worker Center Network

Motivating Individual Leadership for Public Advancement

National Day Laborer Organizing Network

Physicians for Social Responsibility

Pilipino Workers Center

Southern Christian Leadership Conference Southern California

Southside Coalition of Community Health Centers

St. John's Well Child & Family Center

Strategic Actions for a Just Economy

Street Level Health Project

The Restaurant Opportunities Center of Los Angeles

Western Center on Law & Poverty

Opposition

California Apartment Association

California Chamber of Commerce

California Farm Bureau Federation

California Manufacturers & Technology Association

California Professional Association of Specialty Contractors

California Professional Association of Specialty Contractors

California Restaurant Association

California State Council of SHRM

Civil Justice Association of California

National Federation of Independent Business

National Federation of Independent Business

Official Police Garages of Los Angeles

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

Date of Hearing: June 26, 2019

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Ash Kalra, Chair

SBPCA Bill Id:SB 218

Author:(Bradford) – As Amended Ver:April 25, 2019

SENATE VOTE: 30-6

SUBJECT: Employment: discrimination enforcement: local government

SUMMARY: Authorizes a local government to enact and administer its own employment antidiscrimination law, accept employment claims under the state’s Fair Employment and Housing Act (FEHA), and establish remedies and penalties for any violations. Specifically, this bill:

1. Removes from FEHA that it is the intent of the Legislature to occupy the field of regulation of employment discrimination to the exclusion of local governments.
2. Authorizes the legislative body of a local government to enact its own antidiscrimination laws relating to employment, including establishing remedies and penalties for violations.
3. Authorizes local governments to create a local agency to enforce these local antidiscrimination laws, including the authority to:
   1. Accept claims for violations of the local antidiscrimination ordinances directly from the complainant.
   2. Investigate complaints, including issuing subpoenas.
   3. Mediate and settle cases.
   4. Hold administrative hearings.
   5. Award the full scope of remedies available under the local antidiscrimination ordinance and under FEHA.
4. Requires the Department of Fair Employment and Housing (DFEH) to coordinate with the local agency to establish a dual filing relationship that allows the agency to accept complaints under FEHA and assigns obligations regarding the issuance of a right-to-sue notice.
5. Authorizes local governments to also designate a local agency to act as a fair employment practice agency (FEPA) if that local agency agrees to accept all claims that would be accepted by the federal government.
6. Permits an individual to file a complaint with both the local agency and with the DFEH, but would provide that initially filing a complaint with the DFEH extinguishes authorization to subsequently proceed under the local antidiscrimination ordinance.
7. Requires the DFEH to notify a complainant that initially filing with the DFEH extinguishes their right to file under a local antidiscrimination ordinance.

EXISTING FEDERAL LAW:

1. Provides that it is an unlawful employment practice for employers with 15 or more employees to discriminate on the basis of race, color, sex, pregnancy status, religion, or national origin in all aspects of an employment relationship, including hiring, discharge, compensation, assignments, and other terms, conditions and privileges of employment. (Title VII of the Civil Rights Act of 1964)
2. Establishes an administrative agency known as the Equal Employment Opportunity Commission (EEOC) to administer and enforce employment discrimination law.
3. Requires a worker complainant to exhaust the EEOC’s administrative remedies before filing an action for discrimination in court.
4. Permits a state or local agency to accept and investigate allegations that federal employment discrimination laws have been violated, provided that the state or local agency has entered into a worksharing agreement with the EEOC that requires specified case-handling procedures and coordination with the EEOC such that filing with the state or local agency also constitutes filing with the EEOC (“dual filing”).

EXISTING STATE LAW:

1. Establishes FEHA which prohibits, among other things, workplace discrimination on the basis 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.
2. Establishes the DFEH to administer and enforce state civil rights laws including employment antidiscrimination law.
3. Requires a worker complainant to exhaust DFEH’s administrative remedies prior to filing a lawsuit in court for employment discrimination.
4. States that it is the intent of the Legislature to occupy the field of enforcing FEHA’s prohibition on employment discrimination to the exclusion of any city, city and county, county, or other political subdivision of the state.

FISCAL EFFECT: According to the Senate Committee on Appropriations:

Department of Fair Employment and Housing Unknown one-time costs, potentially ranging from the tens of thousands of dollars to the hundreds of thousands of dollars, to the department to modify existing case management systems to incorporate the dual/triple filing of claims with the Equal Employment Opportunity Commission (EEOC) and local agencies and to coordinate with local agencies.

Additionally, this measure may result in a reduction in workload for DFEH as claims could be filed and investigated by the local agencies. Committee staff notes, however, that reduced workload would not result in automatic savings or a reduction in funding to the department. (General Fund)

Local agencies Unknown, non-reimbursable costs to local governments who choose to enact their own employment anti-discrimination ordinances or to investigate or enforce local anti-discrimination provisions. (Local funds)

COMMENTS: In 2017, SB 491 (Bradford) initially sought to eliminate state preemption in the area of enforcement of employment antidiscrimination law. As the bill progressed, it was amended to create a task force to study the practical and procedural challenges of adopting a local enforcement mechanism. While the bill was vetoed by Governor Brown, he instructed the DFEH to conduct a task force on the feasibility of creating a local enforcement model. The advisory group, comprised of seven subject matter experts, met and issued a report in December 2018. This measure is a result of the findings and recommendations in SB 491.

A Note About DFEH’s Complaint Process

The filing of an intake form alleging a FEHA violation initiates the complaint process. The department’s enforcement division first determines if the DFEH has jurisdiction over the case. If jurisdiction is confirmed and the case presents a cognizable claim of employment discrimination, then DFEH will draft and issue a complaint. Once the complaint is served on the respondent, the investigation begins and witnesses may be interviewed. DFEH will offer to mediate the dispute and strongly encourages settlement when possible. If the complaint is meritorious but the matter has not settled, it is referred to the department’s dispute resolution division, comprised of a dozen attorney mediators. If the case is not resolved through mediation, the department’s legal division is empowered to file a civil complaint in court. At a number of stages of this process, a complainant may request a right-to-sue letter, including when the DFEH dismisses their case on the grounds that it lacks merit.

Dual Filing of Complaints

Under our current system, the DFEH has a dual filing relationship with the federal EEOC and acts as FEPA for purposes of processing and coordinating charges that are also received by the EEOC. According to the SB 491 Report, “when an individual files an employment discrimination complaint with DFEH, and the allegation is one that the EEOC could also accept, DFEH dual-files the charge with the EEOC….If someone files a complaint with the EEOC that is also within DFEH’s jurisdiction, the EEOC will generally investigate the case, issuing a state court right-to-sue letter to the complainant at the beginning of the investigation.”

In terms of SB 218’s dual filing procedure between the DFEH and a local agency, filing a claim with the DFEH extinguishes the individual’s right to file under a local ordinance. On the other hand, if the individual files with a local agency first, the local agency’s complaint process will satisfy FEHA’s administrative exhaustion requirement. A locally filed complaint cannot be refiled with or transferred to the DFEH and the department is not empowered to review the agency’s determination. Committee staff notes that this structure is quite rigid and would prohibit the parties from mutually agreeing to afford the DFEH some level of oversight. The author may wish to consider revising this provision to allow the coordinating agencies more flexibility in how cases move between them and to give DFEH a degree of latitude to review local agency determinations within prescribed limits. This could be achieved by executing a worksharing agreement.

Arguments in Support

According to the author, “DFEH is currently the only body in the state authorized to enforce the provisions of the FEHA. Due to this reason, DFEH receives an abundance of employment complaints (on average 24,000 annually), only a fraction of which are investigated by DFEH. Many complainants forego this administrative process and immediately request a right-to-sue from DFEH instead.

SB 218 removes the preemption provision from the Fair Employment and Housing Act to allow local jurisdictions to enforce FEHA’s employment provisions, as well as pass and enforce their own local anti-discrimination laws.”

UDW/AFSCME Local 3930, a sponsor of the bill, states, “SB 218 would make FEHA the floor and not the ceiling. This bill would expand, not decrease, a worker’s protections against employment discrimination by allowing workers the option to file a claim under a local agency instead of filing with a state or federal agency. SB 218 would preserve a worker’s state claims by creating a dual-filing process where any charge filed with a local agency that raises a FEHA claim will be dual-filed with DFEH, providing a great assistance in eliminating the current backlog of discrimination claims.”

The Alliance of Boys and Men of Color, argues in support of the bill, “Recently published research demonstrates that discrimination in hiring remains a persistent challenge for Black workers. 16% of Black workers are unemployed in Los Angeles which is three times the national unemployment rate. 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. These findings are consistent with similar studies published on the topic of discrimination against other classes of people protected by California’s fair employment laws.”

Arguments in Opposition

A coalition of employer organizations, including the California Chamber of Commerce, argues in opposition, “As set forth in the SB 491 Report (the Report), there are numerous concerns raised with this proposal that we do not believe have been fully addressed in SB 218…

SB 218 expressly authorizes a local agency to accept and investigate complaints under FEHA, issue subpoenas, hold administrative hearings, and mediate/settle cases. As set forth on page 11 of the Report, allowing local agencies to enforce FEHA, can create several significant challenges:

1. Potential lack of consistency regarding statute of limitations for investigations;
2. Lack of consistency with regard to procedural regulations;
3. Lack of consistency in the application and interpretation of FEHA.

As the Report indicates, a local agency in Los Angeles could interpret FEHA differently than a local agency in San Francisco, which means employees in different parts of the state could have different protections and procedures for handling discrimination complaints.”

Prior Legislation

SB 491 (Bradford) of 2017 would have directed DFEH to convene a group of experts and stakeholders to study the ramifications of authorizing local enforcement of FEHA and to report back to the Legislature with findings and draft legislation. In his message vetoing SB 491, Governor Brown wrote that he agreed with the author “that it is time for the state to reassess whether the state should allow local authorities to enforce FEHA,” but that the bill as drafted was too broad. He directed DFEH to create an advisory group to explore the matter and report back by December 31, 2018.

REGISTERED SUPPORT / OPPOSITION:

Support

ACT - Los Angeles
Alliance For Boys And Men Of Color
Asian Americans Advancing Justice - California
Bet Tzedek Legal Services
Black AIDS Institute
California Immigrant Policy Center
California Labor Federation
CLUE Justice
Community Asset Development Redefining Education
Community Health Council
Ella Baker Center for Human Rights
Eric Garcetti, Mayor of Los Angeles
Fannie Lou Hamer Institute
Food Chain Workers Alliance
Instituto de Educacion Popular del Sur de California
Jobs to Move America
LAANE
Labor Community Strategy Center
Los Angeles Black Worker Center
Los Angeles County Labor Federation
National Day Laborer Organizing Network
Physicians For Social Responsibility - Los Angeles
Restaurant Opportunities Center of Los Angeles
SCOPE
Southern Christian Leadership Conference
Southside Coalition of Community Health Centers
St. John's Well Child & Family Center
Strategic Actions for a Just Economy
Street Level Health Project
UDW/AFSCME Local 3930
Warehouse Worker Resource Center
Western Center On Law & Poverty, Inc.

Oppose

California Apartment Association
California Chamber Of Commerce
California Farm Bureau Federation
California Manufacturers & Technology Association
California Professional Association Of Specialty Contractors 
California Restaurant Association
California State Council Of SHRM
Civil Justice Association Of California
National Federation Of Independent Business 
Official Police Garages Of Los Angeles

Analysis Prepared by: Megan Lane / L. & E. /

 THIRD READING  

Bill No: SB 218

Author: Bradford (D)

Amended: 4/25/19

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 4/23/19

AYES: Jackson, Borgeas, Allen, Caballero, Jones, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 5-0, 5/16/19

AYES: Portantino, Bradford, Hill, Jones, Wieckowski

NO VOTE RECORDED: Bates

SUBJECT: Employment: discrimination enforcement: local government

SOURCE: Black Worker Center – Los Angeles

Los Angeles Black Worker Center

Policylink

Restaurant Opportunity Center

United Domestic Workers of America – AFSCME Local 3930

Warehouse Worker Resource Center

DIGEST:

This bill authorizes local governments to enforce the employment components of California’s state civil rights laws, subject to specified procedural requirements designed to ensure that local enforcement does not interfere or overlap with existing state and federal civil rights enforcement regimes.

ANALYSIS:

Existing federal law:

1. Makes it unlawful for employers with 15 or more employees to discriminate on the basis of race, color, sex, pregnancy status, religion, or national origin in all aspects of an employment relationship, including hiring, discharge, compensation, assignments, and other terms, conditions and privileges of employment. (Title VII of the Civil Rights Act of 1964; 42 U.S.C. 2000e et seq.)
2. Establishes an administrative agency, the Equal Employment Opportunity Commission (EEOC), charged with receiving, investigating, and adjudicating allegations of workplace discrimination. (42 U.S.C. § 2000e-4.)
3. Requires an aggrieved worker to exhaust the EEOC’s administrative remedies before filing an action for discrimination in court. (42 USCS § 2000e-5(f)(1).)
4. Permits state or local agencies to accept and investigate allegations that federal workplace antidiscrimination laws have been violated, provided that the state or local agency has entered into a worksharing agreement with the EEOC that requires specified case-handling procedures and coordination with the EEOC such that filing with the state or local agency also constitutes filing with the EEOC (so-called “dual filing”). (42 U.S.C. § 2000e-5(c).

Existing state law:

1. Prohibits workplace discrimination on the basis 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 through the Fair Employment and Housing Act (FEHA). (Gov. Code § 12940.)
2. Establishes an administrative agency, the Department of Fair Employment and Housing (DFEH), responsible for receiving, investigating, and adjudicating allegations of workplace discrimination under FEHA. (Gov. Code § 12930.)
3. Requires an aggrieved worker to exhaust DFEH’s administrative remedies prior to filing a lawsuit in court for workplace discrimination. (CITATION.)
4. Expresses the intent of the Legislature to occupy the field of enforcing FEHA’s prohibition on workplace discrimination to the exclusion of any city, city and county, county, or other political subdivision of the state. (Gov. Code § 12993(c).

This bill:

1. Removes from FEHA the Legislature’s statement that it intends to occupy the field of enforcement of employment discrimination to the exclusion of local governments.
2. Authorizes the legislative body of a local government to enact its own antidiscrimination ordinance relating to employment.
3. Provides that a local ordinance may increase employee protection against discrimination but shall not decrease existing protections under FEHA.
4. Provides that a local ordinance may prohibit any conduct that independently constitutes an unlawful employment practice under FEHA and may prohibit conduct that is neither prohibited nor required by the Act, but the ordinance shall not conflict with FEHA by prohibiting conduct that the Act requires nor by requiring conduct that the Act prohibits.
5. Authorizes the legislative body of a local government to create a local agency to investigate and enforce local antidiscrimination provisions.
6. Sets forth specified procedures under which a local antidiscrimination agency must operate. In broad strokes, these procedures are intended to:
7. ensure that workers with claims under local and state, or local, state, and federal discrimination laws either have those claims automatically filed with each relevant enforcement agency, or receive notice of their right to file their claim with the relevant agency and the applicable deadline for doing so;
8. avoid duplication of investigatory work and adjudication; and
9. ensure that local enforcement of FEHA does not infringe on aggrieved workers’ existing rights to pursue their claims in court upon exhaustion of administrative remedies.

Background

FEHA has been described as one of the strongest anti-discrimination laws in the nation. 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 § 12920.)

The State’s enforcement of FEHA has sometimes been criticized, however. Existing California law restricts the power to enforce FEHA to DFEH, to the exclusion of any enforcement by local governments. (Gov. Code § 12993(c).) Responding to all of the civil rights concerns across one of the nation’s largest and most populous states presents an enormous challenge. According to a 2013 report by the California Senate Office of Oversight and Outcomes: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.” 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.”

From the perspective of the author and sponsors of this bill, the State’s reliance on DFEH as the sole government agency enforcing FEHA raises other concerns as well. Even with offices in a few locations throughout the state, DFEH can feel removed and impersonal to civil rights complainants.

Looking for a way to boost California civil rights enforcement and bring civil rights enforcement closer to the people it affects, in 2017, Senator Bradford introduced SB 491. As introduced, SB 491 simply called for eliminating FEHA’s provision preempting local enforcement. There was some question, however, about the potential ramifications of making such a move. Could the blanket removal of the bar on local enforcement inadvertently cause some complainants to lose state or federal causes of action? Could it result in inconsistent enforcement of civil rights laws across the state and even allow for weaker civil rights protections in some parts of the state? Might DFEH lose some of its already limited resources as a result of lifting preemption? (Sen. Com. on Judiciary, Analysis of SB 491 (2017-2018 Reg. Sess.) as amended May 1, 2017, pgs. 4-5.)

With these questions in mind, the author opted to convert SB 491 into a mandate for a task force to study the matter and return to the Legislature with recommended legislation. While he vetoed SB 491, then Governor Brown embraced its intent and ordered DFEH to convene an advisory group to study the concept of local enforcement.

The DFEH advisory group report on local enforcement of FEHA

In response to the orders from Governor Brown, DFEH convened an advisory group of seven stakeholders and experts, including a law professor, a labor lawyer, an official from the City of Los Angeles, worker advocates, and a representative from the California Chamber of Commerce. After the group concluded its work, DFEH released its report on December 5, 2018. The report concluded that “DFEH and the advisory group find that local enforcement of anti-discrimination laws is feasible.”^[1] Indeed the report stated that:

[a]n effective mechanism for local enforcement of anti-discrimination employment laws could further advance the state’s efforts to combat discrimination. If not handled correctly, however, lifting of preemption could have significant negative consequences, including accidental forfeiture of state or federal rights.^[2]

The report went on to list a series of additional technical considerations that should be taken into account in the design of legislation authorizing local enforcement. Those concepts and considerations have informed the crafting of this bill.

The local enforcement model proposed by this bill

This bill stems from the study completed by the SB 491 advisory group in consultation with DFEH, though it is important to clarify that neither the advisory group nor DFEH sponsored or otherwise has any official position on the bill. The bill would allow for local enforcement of statewide civil rights standards. It accomplishes that aim in three steps. The first two are simple. First, the bill removes language in existing law that preempts local jurisdictions from enforcing workplace civil rights laws. Next, the bill authorizes local governments to enact local workplace civil rights ordinances that are at least as strong as FEHA and to establish local government agencies charged with enforcing those ordinances.

The third step lays out all the ways that a local workplace civil rights agency would interact with DFEH and the EEOC when processing allegations of workplace civil rights violations. These mechanisms are complex, but as detailed in the next Comment, they act to protect workers against the inadvertent loss of state and federal rights and remedies while pursuing a workplace civil rights matter locally. They also prevent the duplication of work between DFEH and the local enforcement agencies by ensuring that only one agency will investigate and adjudicate the claim.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• DFEH: Unknown one-time costs, potentially ranging from the tens of thousands of dollars to the hundreds of thousands of dollars, to the department to modify existing case management systems to incorporate the dual/triple filing of claims with EEOC and local agencies and to coordinate with local agencies.
• Additionally, this bill may result in a reduction in workload for DFEH as claims could be filed and investigated by the local agencies. Appropriations Committee staff notes, however, that reduced workload would not result in automatic savings or a reduction in funding to the department. (General Fund)
• Local agencies: Unknown, non-reimbursable costs to local governments who choose to enact their own employment anti-discrimination ordinances or to investigate or enforce local anti-discrimination provisions. (Local funds)

SUPPORT: (Verified 5/16/19)

Black Worker Center – Los Angeles (co-source)

Los Angeles Black Worker Center (co-source)
Policylink (co-source)

Restaurant Opportunity Center (co-source)

United Domestic Workers of America – AFSCME Local 3930 (co-source)

Warehouse Worker Resource Center (co-source)

Alliance for Boys and Men of Color

Alliance for Community Transit – Los Angeles

Asian Americans Advancing Justice - California

Bet Tzedek Legal Services

California Immigrant Policy Center

California Labor Federation

CDTech

Clergy and Laity United for Economic Justice

Community Asset Development Redefining Education

Community Coalition

Community Health Councils

Ella Baker Center for Human Rights

Eric Garcetti, Mayor, City of Los Angeles

Food Chain Workers Alliance

Instituto de Educación Popular del Sur de California

Jobs to Move America

Koreatown Immigrant Workers Alliance

Labor Community Strategy Center

Legal Services for Prisoners with Children

Los Angeles Alliance for a New Economy

Los Angeles County Federation of Labor

Los Angeles Worker Center Network

National Day Laborer Organizing Network

National Employment Law Project

Physicians for Social Responsibility – Los Angeles

SCOPE

Service Employees International Union California

Southern Christian Leadership Conference of Southern California

Southside Coalition of Community Health Centers

St. John’s Well Child & Family Center

Strategic Actions for a Just Economy

Street Level Health Outreach

The Black AIDS Institute

The Fannie Lou Hamer Institute

Western Center on Law & Poverty

OPPOSITION: (Verified 5/16/19)

California Apartment Association

California Chamber of Commerce

California Farm Bureau Federation

California Professional Association of Specialty Contractors

California Restaurant Association

California State Council of the Society for Human Resource Management

Civil Justice Association of California

National Federation of Independent Business

Official Police Garages of Los Angeles

ARGUMENTS IN SUPPORT: According to the author, SB 218 clarifies that local municipalities are not restricted from enforcing California’s Fair Employment and Housing Act (FEHA). While FEHA protects California workers from being discriminated on the basis of race, religion, sex, gender, and others, these safeguards are not always within reach of many workers. The Department of Fair Employment and Housing, which is responsible for enforcing FEHA, receives an average of 24,000 discrimination claims every year. SB 218 removes the preemption provision from the Fair Employment and Housing Act to allow local jurisdictions to enforce FEHA’s employment provisions, as well as pass and enforce their own local anti-discrimination laws.”

As sponsor of the bill, the Los Angeles Black Worker Center writes: “Currently DFEH is underfunded, understaffed, and overburdened by the difficult task of being the first line of defense against both housing and workplace discrimination. Investigator caseloads in DFEH increased from an average of 138 to 203 between 2011 and 2014. High caseloads are a contributing factor to ongoing difficulties of closing cases in a timely fashion. In 2015, more than 1,500 inquiries were awaiting contact from DFEH for over a year. These long delays led to a less robust investigation where pertinent information or witnesses may no longer have been available. Furthermore, while DFEH has stated that many of its cases are appropriate for site visits, large caseloads have slammed the brakes on site visits involving employment complaints. In light of DFEH’s investigation delays, employers are unphased by the threat of an employee’s complaint due to the likelihood that the complaint will go unanswered. The department’s inability to address the overwhelming number of employment discrimination complaints filed each year further evidences the need to expand worker protections at the local level.” (Internal citations omitted.)

In support, the California Labor Federation 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 stronger.”

In further support, the Koreatown Immigrant Workers Alliance writes: “It goes without saying that the strength and solidarity between workers of different ethnicities is only possible because they are able to work alongside each other. Therefore, it is critical that discrimination protections are enforced at the local level, by the local government, because we need the kind of efficiency and effectiveness that local enforcement can provide.”

ARGUMENTS IN OPPOSITION: In opposition to the bill, a coalition of business and trade organizations led by the California Chamber of Commerce writes:

Last year, CalChamber was able to participate in the SB 491 Advisory Group that studied the potential for the provisions of the Fair Employment and Housing Act (FEHA) to be enforced by local authorities.  As set forth in the SB 491 Report (the Report), there are numerous concerns raised with this proposal that we do not believe have been fully addressed in SB 218. […]

[A]llowing local agencies to enforce FEHA, can create several significant challenges:

(1) Potential lack of consistency regarding statute of limitations for investigations;

(2) Lack of consistency with regard to procedural regulations;

(3) Lack of consistency in the application and interpretation of FEHA.

[…] This inconsistency will create confusion, uncertainty, and challenges for employers and employees. […]

SB 218 also allows local ordinances to: (1) increase employee protection against discrimination under FEHA and (2) adopt additional protections that are not prohibited or otherwise in conflict with FEHA. This authority will create a patchwork of inconsistent enforcement and remedies throughout the state, incentivize forum shopping, and discourage business growth. […]

[…] Depending on where the employee files the complaint, dictates whether the local agency or DFEH control the process.  Proposed Section 12999(c) appears to preempt the DFEH’s authority with regard to requiring an employee to exhaust administrative remedies by filing a complaint with the DFEH as well as eliminating the right of the DFEH to review a local agency’s administrative determination.  This proposed limitation on the DFEH’s authority as well as trying to navigate which government agency is controlling or handling a complaint or investigation, will create confusion, uncertainty, and inconsistency with the application of FEHA.

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

5/18/19 12:57:27

**** END ****

1. SB 491 Report (2018) California Department of Fair Employment and Housing https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB491Report2018.pdf (as of Apr.14, 2019) at p. 4. ↑

2. Id. at p. 3. ↑

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 218 (Bradford) - Employment: discrimination enforcement: local government

Bill Summary:

SB 218 would allow local governments to enforce the employment components of the Fair Employment and Housing Act, subject to specified procedural requirements.

Fiscal Impact:

• Department of Fair Employment and Housing (DFEH): Unknown one-time costs, potentially ranging from the tens of thousands of dollars to the hundreds of thousands of dollars, to the department to modify existing case management systems to incorporate the dual/triple filing of claims with the Equal Employment Opportunity Commission (EEOC) and local agencies and to coordinate with local agencies.

Additionally, this measure may result in a reduction in workload for DFEH as claims could be filed and investigated by the local agencies. Committee staff notes, however, that reduced workload would not result in automatic savings or a reduction in funding to the department. (General Fund)

• Local agencies: Unknown, non-reimbursable costs to local governments who choose to enact their own employment anti-discrimination ordinances or to investigate or enforce local anti-discrimination provisions. (Local funds)

Background:

The California Fair Employment and Housing Act (FEHA), in addition to its anti-housing-discrimination provisions, prohibits workplace discrimination on the basis 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 and provides procedures for enforcement by DFEH. It is the intention of the Legislature that the act occupy the field of regulation of discrimination in employment and housing, exclusive of all other laws banning employment or housing discrimination by a city, county, or other political subdivision of the state, but that FEHA does not limit or restrict the application of the Unruh Civil Rights Act, which generally prohibits business establishments from discriminating on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.

Additionally, Title VII of the federal Civil Rights Act of 1964 makes it unlawful for employers with 15 or more employees to discriminate on the basis of race, color, sex, pregnancy status, religion, or national origin in all aspects of an employment relationship, including hiring, discharge, compensation, assignments, and other terms, conditions, and privileges of employment. The Equal Employment Opportunity Commission is charged with receiving, investigating, and adjudicating allegations of workplace discrimination as prohibited by federal law; however, state and local agencies may accept and investigate allegations that federal workplace anti-discrimination laws have been violated if the agency has entered into a work sharing agreement with the EEOC that requires specified case-handling procedures and coordination with the EEOC such that filing with the state or local agency also constitutes filing with the EEOC (so-called “dual filing”). Additionally, Title VII requires a person to exhaust EEOC administrative remedies before that person may file an action in court for violations of federal employment anti-discrimination protections. With respect to FEHA employment protections, a person may obtain a right-to-sue notice from DFEH immediately without investigation of the allegation by the department. The person must first file a complaint to receive a right-to-sue notice, however.

Proposed Law:

This bill would:

• Remove from FEHA the Legislature’s stated intent to occupy the field of enforcement of employment discrimination to the exclusion of local governments.
• Allow the legislative body of a local government to enact its own antidiscrimination ordinance relating to employment.
• Provide that a local ordinance may increase employee protection against discrimination but cannot decrease existing protections under FEHA.
• Allow a local ordinance to prohibit any conduct that independently constitutes an unlawful employment practice under FEHA and to prohibit conduct that is neither prohibited nor required by FEHA so long as the ordinance does not conflict with FEHA by prohibiting conduct that FEHA requires or by requiring conduct that FEHA prohibits.
• Allow the legislative body of a local government to create a local agency to investigate and enforce local antidiscrimination provisions.
• Set forth specified procedures under which a local antidiscrimination agency must operate.

Related Legislation:

SB 491 (Bradford, 2017) would have directed DFEH to convene a group of experts and stakeholders to study the ramifications of allowing local enforcement of FEHA and to report back to the Legislature with findings and draft legislation. SB 491 was vetoed by the Governor, who stated that “it is time for the state to reassess whether the state should allow local authorities to enforce FEHA,” but the bill, as drafted, was too broad. The Governor directed DFEH to create an advisory group to explore the matter and report back by December 31, 2018.

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 failed passage from the Assembly Committee on Judiciary.

Staff Comments:

In response to the Governor’s directive to DFEH to explore and report back on local enforcement of employment protections, the department convened an advisory group. The report stated that “[a]n effective mechanism for local enforcement of anti-discrimination employment laws could further advance the state’s efforts to combat discrimination. If not handled correctly, however, lifting of preemption could have significant negative consequences, including accidental forfeiture of state or federal rights.” (SB 491 Report (2018) California Department of Fair Employment and Housing <https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB491Report2018.pdf> (as of Apr.14, 2019) at p. 3.)

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SB 218 (Author:Bradford)

Version: April 9, 2019

Hearing Date: April 23, 2019

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Employment: discrimination enforcement: local government

DIGEST

This bill authorizes local governments to enforce the employment components of California’s state civil rights laws, subject to specified procedural requirements designed to ensure that local enforcement does not interfere or overlap with existing state and federal civil rights enforcement regimes.

EXECUTIVE SUMMARY

The Fair Employment and Housing Act (FEHA) protects Californians’ civil rights at work and in the home. Under existing law, only the state may enforce FEHA. Local governments may not. The State enforces FEHA through the Department of Fair Employment and Housing (DFEH). With its limited resources and a handful of offices throughout the state, DFEH processes around 24,000 reports of discrimination annually. To help fortify California’s civil rights enforcement regime and open up the possibility of bringing it closer to the people, this bill would authorize local governments to undertake enforcement of FEHA. So that local enforcement would not interfere with or duplicate state and federal civil rights enforcement, the bill would also specify practices and procedures that local governments would have to follow in order to exercise this new authority.

The bill is sponsored by the Los Angeles Black Worker Center, Policylink, the Restaurant Opportunity Center, the United Domestic Workers of America – AFSCME Local 3920, and the Warehouse Worker Resource Center. It has support from organized labor, workers’ rights advocates, and civil rights organizations. There is no known opposition at this time.

PROPOSED CHANGES TO THE LAW

Existing federal law:

1. Makes it unlawful for employers with 15 or more employees to discriminate on the basis of race, color, sex, pregnancy status, religion, or national origin in all aspects of an employment relationship, including hiring, discharge, compensation, assignments, and other terms, conditions and privileges of employment. (Title VII of the Civil Rights Act of 1964; 42 U.S.C. 2000e et seq.)
2. Establishes an administrative agency, the Equal Employment Opportunity Commission (EEOC), charged with receiving, investigating, and adjudicating allegations of workplace discrimination. (42 U.S.C. § 2000e-4.)
3. Requires an aggrieved worker to exhaust the EEOC’s administrative remedies before filing an action for discrimination in court. (42 USCS § 2000e-5(f)(1).)
4. Permits state or local agencies to accept and investigate allegations that federal workplace antidiscrimination laws have been violated, provided that the state or local agency has entered into a worksharing agreement with the EEOC that requires specified case-handling procedures and coordination with the EEOC such that filing with the state or local agency also constitutes filing with the EEOC (so-called “dual filing”). (42 U.S.C. § 2000e-5(c).)

Existing state law:

1. Prohibits workplace discrimination on the basis 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 through the (FEHA). (Gov. Code § 12940.)
2. Establishes an administrative agency, DFEH, responsible for receiving, investigating, and adjudicating allegations of workplace discrimination under FEHA. (Gov. Code § 12930.)
3. Requires an aggrieved worker to exhaust DFEH’s administrative remedies prior to filing a lawsuit in court for workplace discrimination. (CITATION.)
4. Expresses the intent of the Legislature to occupy the field of enforcing FEHA’s prohibition on workplace discrimination to the exclusion of any city, city and county, county, or other political subdivision of the state. (Gov. Code § 12993(c).)

This bill:

1. Removes from FEHA the Legislature’s statement that it intends to occupy the field of enforcement of employment discrimination to the exclusion of local governments.
2. Authorizes the legislative body of a local government to enact its own antidiscrimination ordinance relating to employment.
3. Provides that a local ordinance may increase employee protection against discrimination but shall not decrease existing protections under the FEHA.
4. Provides that a local ordinance may prohibit any conduct that independently constitutes an unlawful employment practice under FEHA and may prohibit conduct that is neither prohibited nor required by the Act, but the ordinance shall not conflict with FEHA by prohibiting conduct that the Act requires nor by requiring conduct that the Act prohibits.
5. Authorizes the legislative body of a local government to create a local agency to investigate and enforce local antidiscrimination provisions.
6. Sets forth specified procedures under which a local antidiscrimination agency must operate. In broad strokes, these procedures are intended to:
7. ensure that workers with claims under local and state, or local, state, and federal discrimination laws either have those claims automatically filed with each relevant enforcement agency, or receive notice of their right to file their claim with the relevant agency and the applicable deadline for doing so;
8. avoid duplication of investigatory work and adjudication; and
9. ensure that local enforcement of FEHA does not infringe on aggrieved workers’ existing rights to pursue their claims in court upon exhaustion of administrative remedies.

COMMENTS

1. Background

FEHA has been described as one of the strongest anti-discrimination laws in the nation. 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 § 12920.)

The State’s enforcement of FEHA has sometimes been criticized, however. Existing California law restricts the power to enforce FEHA to DFEH, to the exclusion of any enforcement by local governments. (Gov. Code § 12993(c).) Responding to all of the civil rights concerns across one of the nation’s largest and most populous states presents an enormous challenge. According to a 2013 report by the California Senate Office of Oversight and Outcomes: “years of tight budgets have whittled away the state’s ability to protect workers and enforce the law.” 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.”

From the perspective of the author and sponsors of this bill, the State’s reliance on DFEH as the sole government agency enforcing FEHA raises other concerns as well. Even with offices in a few locations throughout the state, DFEH can feel removed and impersonal to civil rights complainants.

Looking for a way to boost California civil rights enforcement and bring civil rights enforcement closer to the people it affects, in 2017, Senator Bradford introduced SB 491. As introduced, SB 491 simply called for eliminating FEHA’s provision preempting local enforcement. There was some question, however, about the potential ramifications of making such a move. Could the blanket removal of the bar on local enforcement inadvertently cause some complainants to lose state or federal causes of action? Could it result in inconsistent enforcement of civil rights laws across the state and even allow for weaker civil rights protections in some parts of the state? Might DFEH lose some of its already limited resources as a result of lifting preemption? (Sen. Com. on Judiciary, Analysis of SB 491 (2017-2018 Reg. Sess.) as amended May 1, 2017, pgs. 4-5.)

With these questions in mind, the author opted to convert SB 491 into a mandate for a task force to study the matter and return to the Legislature with recommended legislation. While he vetoed SB 491, then Governor Brown embraced its intent and ordered DFEH to convene an advisory group to study the concept of local enforcement.

2. The DFEH advisory group report on local enforcement of FEHA

In response to the orders from Governor Brown, DFEH convened an advisory group of seven stakeholders and experts, including a law professor, a labor lawyer, an official from the City of Los Angeles, worker advocates, and a representative from the California Chamber of Commerce. After the group concluded its work, DFEH released its report on December 5, 2018. The report concluded that “DFEH and the advisory group find that local enforcement of anti-discrimination laws is feasible.”^[1] Indeed the report stated that:

[a]n effective mechanism for local enforcement of anti-discrimination employment laws could further advance the state’s efforts to combat discrimination. If not handled correctly, however, lifting of preemption could have significant negative consequences, including accidental forfeiture of state or federal rights.^[2]

The report went on to list a series of additional technical considerations that should be taken into account in the design of legislation authorizing local enforcement. Those concepts and considerations have informed the crafting of this bill.

1. Models of local civil rights enforcement in other states

A “Fair Employment Practice Agency,” or “FEPA,” is a government agency tasked with enforcing workplace civil rights laws through worksharing agreements with the EEOC that include dual filing. Most states have a statewide FEPA. In California, the statewide FEPA is DFEH, of course.

Because of the preemption that this bill would lift, there are no local FEPAs in California.^[3] Elsewhere in the country, however, local FEPAs are common. In its SB 491 report, DFEH’s advisory group identified about 50 local jurisdictions across the country with FEPAs, including major cities like Baltimore, Philadelphia, New York, Miami, and Seattle.^[4]

While there is ample precedent for local FEPAs, however, the SB 491 advisory group’s report did not find any examples where local FEPAs enforced state anti-discrimination laws. Instead, the local FEPAs generally enforce ordinances specific to their local jurisdiction.^[5] The local civil right enforcement scheme proposed by this bill follows that pattern, but by allowing local governments to incorporate FEHA’s protections into their local anti-discrimination ordinances, it would have the effect of allowing local agencies to enforce FEHA’s provisions locally.

1. The local enforcement model proposed by this bill

This bill stems from the study completed by the SB 491 advisory group in consultation with DFEH, though it is important to clarify that neither the advisory group nor DFEH sponsored or otherwise has any official position on the bill. The bill would allow for local enforcement of statewide civil rights standards. It accomplishes that aim in three steps. The first two are simple. First, the bill removes language in existing law that preempts local jurisdictions from enforcing workplace civil rights laws. Next, the bill authorizes local governments to enact local workplace civil rights ordinances that are at least as strong as FEHA and to establish local government agencies charged with enforcing those ordinances.

The third step lays out all the ways that a local workplace civil rights agency would interact with DFEH and the EEOC when processing allegations of workplace civil rights violations. These mechanisms are complex, but as detailed in the next Comment, they act to protect workers against the inadvertent loss of state and federal rights and remedies while pursuing a workplace civil rights matter locally. They also prevent the duplication of work between DFEH and the local enforcement agencies by ensuring that only one agency will investigate and adjudicate the claim.

1. How this bill responds to potential concerns about local enforcement

Though the bill’s terms can appear convoluted on a quick reading, they are designed to allow for local enforcement of workplace civil rights while avoiding some of the potential pitfalls that might follow if the Legislature were simply to lift state preemption without providing any guidance as to how local enforcement should be carried out. The following subcomments discuss how the bill addresses the most significant of those concerns.

1. Danger of loss of state and federal claims

Workplace discrimination often violates both state and federal law. The aggrieved worker therefore has the option of seeking relief from either the state agency tasked with enforcing state civil rights laws, or the corresponding federal agency. Under current practices in California, when an aggrieved worker files a claim with DFEH and the claim alleges a violation of both state and federal civil rights laws, DFEH automatically files the claim with the EEOC as well. The same thing happens in reverse: if the claim alleges violations of both state and federal laws but the worker files the claim with the EEOC, the EEOC automatically files the claim with DFEH as well. This process is known as dual filing.

Dual filing happens because of a worksharing agreement that DFEH and the EEOC have with one another. It acts to ensure that aggrieved workers do not lose state claims when they file federally, and vice versa.

If state preemption were lifted in California and local agencies also began to receive allegations of workplace discrimination, that change would add an additional layer of complexity. In a case involving violation of a local ordinance, state law, and federal law, the state and federal agencies might never know about the claim if the aggrieved worker filed the worker’s complaint with the local agency only. The aggrieved worker might lose the opportunity to seek state and federal remedies as a result.

This bill addresses this potential problem in two ways. First, it requires DFEH to arrange for dual filing with any local agency that will be enforcing workplace civil rights. That ensures that an aggrieved worker’s state claims would not be lost as a result of choosing to file locally. Second, the bill gives local governments two options for ensuring that an aggrieved worker’s federal remedies are not inadvertently foreclosed as a result of filing locally. Either the local government can have its anti-discrimination enforcement agency become a FEPA by entering into a worksharing agreement with the EEOC, or it can have the local anti-discrimination agency notify aggrieved workers about their federal rights and the associated deadline whenever the local anti-discrimination agency receives a claim alleging something that is both a local and federal violation. This set-up provides local governments with some flexibility while still doing everything possible to avoid a scenario in which an aggrieved worker loses federal rights simply because the worker chose to initiate the worker’s claims at the local level.

The bill also contains a series of provisions that ensure that aggrieved workers receive timely right-to-sue letters, so that their right to seek state and federal remedies in court is not inadvertently cut off while the claim is processing at the local level.

1. Inconsistent civil rights enforcement across the state

Another concern about simply lifting preemption was that it might lead to inconsistent workplace civil rights enforcement across the state. The bill addresses this in a few different ways. First, the bill sets FEHA as a floor for workplace civil rights below which local ordinances may not go. Thus, a local jurisdiction could decide to go further than FEHA by protecting additional classes^[6] against discrimination, if it wanted to, but it could not choose not to allow discrimination that FEHA prohibits. Second, the bill requires that filing with the local agency is always optional. An aggrieved worker who is worried that they might not get a fair shake from their local anti-discrimination agency would always have the choice of filing with DFEH instead. Finally, resorting to a petition to the courts for a writ of mandate remains a backstop if any a local agency is interpreting state civil rights standards in a way that is inconsistent with FEHA.

It is nonetheless true that, under this bill, some local jurisdictions may decide to develop quite robust local anti-discrimination enforcement agencies, while other jurisdictions will not. Indeed, given the cost associated with operating a local civil rights enforcement agency, it seems likely that only the largest cities will have the resources available to consider it. However, because the bill ensures that aggrieved workers can still always access DFEH, Californians’ workplace civil rights protections could only improve under this bill. No Californian would be any less protected than they are under current law.

1. Duplication of investigations

Lifting preemption without some coordination between local and state workplace civil rights enforcement might have left open the possibility that multiple investigations of the same allegation would take place at various levels of government. This bill addresses that problem by establishing that filing a claim with DFEH extinguishes the right of the aggrieved worker to file the same claim locally. So that workers will not extinguish their local rights inadvertently, the bill requires DFEH to notify complainants of their right to file locally and the fact that, if they proceed at DFEH, they will be relinquishing that right.

6. Impact on DFEH operations

The bill has been designed to allow local enforcement of workplace civil rights laws to wraparound DFEH’s existing functions, so that the lifting of preemption should have minimal effect on the department. Aside from coordinating dual filing with any local enforcement agencies that are set up if this bill gets enacted, DFEH has no other role except to continue doing what it already does under existing law. In fact, the bill specifically prohibits the transfer of locally-filed claims to DFEH and prohibits DFEH from reviewing local agency administrative decisions. Workers or employers who were dissatisfied by a local agency decision would have to utilize any available appeals set up under the local ordinance or seek relief from the courts through a petition for a writ of mandate.

It should also be noted that this bill lifts state preemption as to the enforcement of FEHA’s employment protections only. Responding to allegations of housing discrimination under FEHA would remain the exclusive domain of DFEH.

7. Proposed amendments

To ensure that workers filing local complaints with local civil rights enforcement agencies receive right-to-sue letters in a timely fashion and to address minor drafting errors in the bill, the author proposes to take the following amendments in Committee:

Amendment 1

On page 5, in line 15, strike out “and”

Amendment 2

On page 5, in line 29, strike out “may” and insert:

shall

Amendment 3

On page 5, in line 30, strike out “and no later than” and insert:

or at

Amendment 4

On page 5, in line 31, strike out “department.” and insert:

department, whichever is sooner.

Amendment 5

On page 6, in line 4, strike out “may” and insert:

shall

Amendment 6

On page 6, in line 5, strike out “and no later than the end of” and insert:

or at

Amendment 7

On page 6, in line 6, strike out “department.” and insert:

department, whichever is sooner, except if, before the maximum time provided for department investigations, the local agency completes its investigation and issues notice that it will seek a binding administrative adjudication in favor of the complainant. Thereafter, a right-to-sue notice under the act may be issued only in accordance with paragraph (1).

8. Arguments in support of the bill

According to the author:

SB 218 clarifies that local municipalities are not restricted from enforcing California’s Fair Employment and Housing Act (FEHA). While FEHA protects California workers from being discriminated on the basis of race, religion, sex, gender, and others, these safeguards are not always within reach of many workers. The Department of Fair Employment and Housing, which is responsible for enforcing FEHA, receives an average of 24,000 discrimination claims every year. SB 218 removes the preemption provision from the Fair Employment and Housing Act to allow local jurisdictions to enforce FEHA’s employment provisions, as well as pass and enforce their own local anti-discrimination laws.

Following my efforts on SB 491, which I introduced in 2017, Governor Brown convened an advisory group to study whether local enforcement of FEHA’s employment provisions was possible. In their report, the Department found that local authorities could feasibly enforce FEHA. In addition, the report found that the legislature could also authorize local jurisdictions to pass their own local employment discrimination laws, thus ensuring DFEH is not the only entity in the state responsible for enforcing FEHA and creating additional protection from discrimination for California workers.

Vulnerable populations, such as women and people of color, would have a greater shield against employment discrimination with the passage of SB 218. Currently, too many of these individuals are unaware of or unable to access the anti-discrimination resources available to them, and many who file find that their claims are left in limbo without resolution. SB 218 authorizes local governments who are interested to provide these populations with an additional way to pursue justice and fairness.

As sponsor of the bill, the Los Angeles Black Worker Center writes:

Currently DFEH is underfunded, understaffed, and overburdened by the difficult task of being the first line of defense against both housing and workplace discrimination. Investigator caseloads in DFEH increased from an average of 138 to 203 between 2011 and 2014. High caseloads are a contributing factor to ongoing difficulties of closing cases in a timely fashion. In 2015, more than 1,500 inquiries were awaiting contact from DFEH for over a year. These long delays led to a less robust investigation where pertinent information or witnesses may no longer have been available. Furthermore, while DFEH has stated that many of its cases are appropriate for site visits, large caseloads have slammed the brakes on site visits involving employment complaints. In light of DFEH’s investigation delays, employers are unphased by the threat of an employee’s complaint due to the likelihood that the complaint will go unanswered. The department’s inability to address the overwhelming number of employment discrimination complaints filed each year further evidences the need to expand worker protections at the local level. (Internal citations omitted.)

In support, the California Labor Federation 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 stronger.

In further support, the Koreatown Immigrant Workers Alliance (KIWA) writes:

It goes without saying that the strength and solidarity between workers of different ethnicities is only possible because they are able to work alongside each other. Therefore, it is critical that discrimination protections are enforced at the local level, by the local government, because we need the kind of efficiency and effectiveness that local enforcement can provide. KIWA was one of the members of the Los Angeles Coalition Against Wage Theft, which advocated for a $15 minimum wage in the City and established local enforcement offices. We have seen what they can do and we know that workers deserve the same resources for discrimination protection as they do for wage theft.

SUPPORT

Los Angeles Black Worker Center (sponsor)
Black Worker Center – Los Angeles (sponsor)

Policylink (sponsor)

Restaurant Opportunity Center (sponsor)

United Domestic Workers of America – AFSCME Local 3920 (sponsor)

Warehouse Worker Resource Center (sponsor)

Alliance for Boys and Men of Color

Alliance for Community Transit – Los Angeles

Bet Tzedek Legal Services

The Black AIDS Institute

California Immigrant Policy Center

California Labor Federation

CDTech

Clergy and Laity United for Economic Justice

Community Asset Development Redefining Education

Community Coalition

Community Health Councils

Ella Baker Center for Human Rights

The Fannie Lou Hamer Institute

Food Chain Workers Alliance

Instituto de Educación Popular del Sur de California

Jobs to Move America

Koreatown Immigrant Workers Alliance

Labor Community Strategy Center

Legal Services for Prisoners with Children

Los Angeles Alliance for a New Economy

Los Angeles County Federation of Labor

Los Angeles Worker Center Network

National Day Laborer Organizing Network

National Employment Law Project

Physicians for Social Responsibility – Los Angeles

Service Employees International Union California

SCOPE

Southern Christian Leadership Conference of Southern California

Southside Coalition of Community Health Centers

St. John’s Well Child & Family Center

Strategic Actions for a Just Economy

Street Level Health Outreach

Western Center on Law & Poverty

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation: None known

Prior Legislation:

SB 491 (Bradford, 2017) would have directed DFEH to convene a group of experts and stakeholders to study the ramifications of authorizing local enforcement of FEHA and to report back to the Legislature with findings and draft legislation. In his message vetoing SB 491, then Governor Brown wrote that he agreed with the author “that it is time for the state to reassess whether the state should allow local authorities to enforce FEHA,” but that the bill as drafted was too broad. He directed DFEH to create

an advisory group to explore the matter and report back by December 31, 2018.

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. SB 491 Report (2018) California Department of Fair Employment and Housing https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB491Report2018.pdf (as of Apr.14, 2019) at p. 4. ↑

2. Id. at p. 3. ↑

3. The San Francisco Human Rights Commission investigates allegations of discrimination within that city and county. However, its jurisdiction is explicitly limited to “all incidents of discrimination within the

   scope of this ordinance to the extent such functions are not within the exclusive responsibilities of the

   California Fair Employment Practices Commission or any federal or other State agency.” (San Francisco Administrative Code § 12A.5(g).) ↑

4. SB 491 Report (2018) California Department of Fair Employment and Housing https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB491Report2018.pdf (as of Apr.14, 2019) at p. 9. ↑

5. Id. at 10. ↑

6. Such as, for example, appearance, weight, eye color, or having body piercings. ↑