Susan Saylor | Special Projects Counsel California Department of Fair Employment and Housing

Evolution

1. Parallels between Title VII and Title VIII 2. Employment discrimination precedent; borrowing and guidance. 3. Substantial equivalency. 4. Liberal construction.

 Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 et seq. [Employment discrimination].  Title VIII of the Civil Rights Act of 1968, 42 U.S.C.A. §3601 et seq. [Fair Housing Act (FHA)].

 “We apply Title VII discrimination analysis in examining Fair Housing Act (“FHA”) discrimination claims.” (Gamble v. City of Escondido (9th Cir. 1997) 104 F. 3d 300, 304.)  “[P]rinciples at issue in cases of employment discrimination are often applied in housing discrimination cases.” (Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission (2004) 121 Cal. App. 4th 1578, 1591.

◦ FEHA is intended to be “substantially equivalent” to the Fair Housing Act (FHA)  “FEHA in the housing area is thus intended to conform to the general requirements of federal law in the area and may provide greater protection against discrimination.” ( Brown v. Smith (1997) 55 Cal. App. 4th 767, 780.)

Liberally construed

 How to prove discrimination ◦ McDonnel Douglas burden-shifting analysis for circumstantial evidence of intentional discrimination. ◦ Availability of disparate impact theory.

 Harassment.  Reasonable Accommodation.

 How Housing Discrimination Law is Unique 1.Who is your client? 2.Standing 3.Procedure 4.Damages

Know Your Client

 Trafficante v. Metropolitan Life Ins. Co. (1972) 409 U.S. 205, 210 [Any person harmed by a discriminatory act has standing to sue.] ◦ Plaintiffs alleged that they were harmed by living in a racially segregated community ◦ “The person on the landlord’s blacklist is not the only victim of discriminatory housing practices; it is …‘the whole community.’”

◦ Anyone who claims to have been injured by a discriminatory housing practice. ◦ Persons who believe “they will be injured by a discriminatory housing practice that is about to occur.” ◦ Testers. ◦ Fair Housing Councils.

 No exhaustion requirement

 Compensatory and Punitive Damages ◦ Humiliation, Embarrassment, Emotional Distress, and Other Intangible Harms ◦ Fair Housing Council Damages  Unruh Statutory Damages ◦ Current: $4,000 per discriminatory act.

 Fair Housing Council v. Roommates.com, LLC (9th Cir. 2012) 666 F.3d The term, “housing accommodation,” under the FEHA, excludes the sharing of living units. Fair Housing Council v. Roommates.com, LLC

Legislative Changes

 See HUD's proposed disparate impact rule in the November 16, 2011 Federal Register /html/ htm /html/ htm

 California Code of Regulations, title 2, sections

20 AB 887 (Atkins) (Stats. 2011, ch. 719.)  Clarifies that the definitions of gender and sex in 34 specified statutes include gender identity and gender expression.  Adds to the list of protected bases throughout the FEHA the terms gender, gender identity and gender expression.  Amended: Government Code sections 12920, 12921, 12926, 12930, 931,12935, 12940, 12944, 12949, 12955, , , and (Also amended the Unruh Civil Rights Act, Civil Code section 51.)

 SB 1186 by Senator Darrel Steinberg (D-Sacramento) – Disability access. Effective January 1, SB 1186  SB 1186 would reduce the minimum statutory damages to $1000 for which small business owners may be liable for unintentional construction-related accessibility violations if the violation is corrected within 60 or 30 days of service of a civil complaint, as specified. The bill also would: (1) prohibit attorneys and non- attorneys from making prelitigation written and oral demands for money for construction-related accessibility violations and regulate the content of demand letters; (2) require that civil complaints alleging construction-related accessibility violations be pled with specificity and verified; and (3) require attorneys to submit construction-related accessibility violation demand letters and civil complaints to the State Bar of California and to the California Commission on Disability Access.

22  SB 1038 (Committee on Budget & Fiscal Review) (Stats. 2012, ch. 46, §§ 18, 27-66, 68, 70, 101 &115) is a budget trailer bill, signed by Governor Edmund G. Brown, Jr., on June 27,  Results in net General Fund savings of $391,000 in and $784,000 in and ongoing.  Makes sweeping changes to the Fair Employment and Housing Act (FEHA), effective Jan. 1,  Changes significantly the role of the Department of Fair Employment and Housing (DFEH) in civil rights enforcement in California.

23  Eliminates the DFEH’s sister agency, the Fair Employment and Housing Commission (Commission), effective January 1, (Legis. Counsel’s Dig., Sen. Bill 1038 (46 Stat. 2012) (Reg. Sess.) Summary Dig. p. 3.)  Transfers the Commission’s regulatory function to the Department. (Ibid.)  Ends administrative adjudication of FEHA claims. (Ibid.)  Authorizes the DFEH to file cases directly in court. (Ibid.)  Authorizes the DFEH to collect attorney fees and costs when it is the prevailing party in FEHA litigation. (Ibid.)

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