2. FEHA 50th Anniversary: Civil Rights Past, Present and Future April 2009 Presented by Phyllis W. Cheng | Director Department of Fair Employment and Housing State of California |State and Consumer Services Agency 2218 Kausen Drive | Suite 100 Elk Grove | California | 95758 Telephone: 916.478.7251 | Fax: 916.478.7329 phyllis.cheng@dfeh.ca.govphyllis.cheng@dfeh.ca.gov | www.dfeh.ca.govwww.dfeh.ca.gov California’s Civil Rights Agency This powerPoint presentaton may be copied so long as credit is given to the Department of Fair Employment and Housing. A Department of Fair Employment and Housing Presentation

3. Overview  History of the FEHA  The FEHA Today  The DFEH – Mission Statement – Jurisdiction – Summary of 2008 DFEH Cases  The 50th Anniversary Celebration: – Collaboration with Stakeholders – Publications on FEHA Cases/Policies – Studies: Blueprint for Future – Renaissance: New Regulations

4. History of the FEHA: Threatened March on Washington  In 1941, civil rights leaders Philip Randolph and Baynard Rustin began to organize a 100,000 person march to Washington to protest against discrimination in the defense industries.  Californian Cottrell Laurence “C. L.” Dellums, a leader of the Brotherhood of Sleeping Car Porters. was one of the organizers.

5. Executive Order 8802 and the FEPC  In 1941, to call off the March on Washington, President Franklin D. Roosevelt issued Executive Order 8802 to establish a national Fair Employment Practices Commission to handle complaints of race, creed, color or national origin discrimination.  In 1945, with little power to handle complaints, the national Commission disbanded.  That year, FEP legislation was introduced in five states: California, New York, Pennsylvania, Massachusetts and New Jersey. All adopted laws except California.

6. Early Efforts & March on Sacramento  In 1945, 1949, 1951 and 1953, California’s’ FEP bills sponsored by Assemblymembers Augustus Hawkins and Byron Rumford were rejected.  In 1946, Californians rejected Proposition 11 to adopt a FEP measure.  In 1953, the California Committee for Fair Employment Practices mounted a March on Sacramento with hundreds to point up the need for FEP legislation.

7. Pioneers’ Continuing Struggle  Despite repeated defeats, the Cal Committee continued to press for FEP legislation from 1953 to 1959.  Leaders – Assemblymember Augustus Hawkins. – Assemblymember Byron Rumford. – Labor leader C.L. Dellums.

8. The FEPA Adopted in 1959  On April 16, 1959, Governor Pat Brown signed the Fair Employment Practices Act of 1959, which took effect on September 18, 1959.  The FEPA prohibited discrimination in employment on the basis of race, religious creed, color, national origin, and ancestry.  The Act’s jurisdiction covered employers of 5 or more persons, labor organizations, employment agencies, and any person aiding or abetting the forbidden actions.

9. Rumford Fair Housing Act  Passage of the Rumford Fair Housing Act followed in 1963.  The Act protected Californians from discrimination in the sale and rental of housing accommodations.  Bases: race, color, religion, national origin and ancestry.

10. Fair Employment and Housing Act  In 1980, Governor Jerry Brown and the Legislature reorganized civil rights enforcement.  The FEPA and the Rumford Act were combined and renamed as the FEHA to protect Californians from both employment and housing discrimination.  Under the FEHA, the DFEH investigates, conciliates and prosecutes discrimination complaints; and the Fair Employment and Housing Commission (FEHC)  The FEHC adjudicates these claims and promulgates regulations.

11. FEHA’s Protections Today  FEHA Protections: discrimination, harassment, Retaliation.  Bases: age, ancestry, color, disability, family leave, marital status, medical Condition, National Origin, Race, Religion, Sex, Sexual Orientation.  Remedies: hiring, back pay, promotion, reinstatement, cease and desist orders, damages for emotional distress, reasonable attorneys fees and costs, expert witness fees, administrative fines and court ordered punitive damages.

12. FEHA’s Legislative Development  Prudence Kay Poppink Act in 2000 amended the FEHA’s disability protections, reaffirmed and strengthened California’s protections for individuals with disabilities.  Other notable legislative expansions: – Making sexual harassers personally liable for their conduct. – Mandating sexual harassment training for all California employers with 50 or more employees. – Requiring employers to reasonably accommodate pregnant employees. – Expanding FEHA’s protections to sexual orientation and “gender.” – Adding employer liability for non-employee sexual harassment where the employer is on notice.

13. FEHA’s Regulatory Development Fair Employment and Housing Commission regulations:  Responsibilities of employers to train their managers and supervisors in sexual harassment prevention (2006).  Commission procedures and hearing practices (1999).  Protections for pregnant employees (1995).  Employees’ rights of job-protected family and medical leave under the California Family Rights Act (1995 & 1993).

14. Mission Statement The mission of the Department of Fair Employment and Housing is to protect Californians from employment, housing and public accommodation discrimination, and hate violence.

15. Jurisdiction  The DFEH enforces the Fair Employment and Housing Act (FEHA), Unruh Civil Rights Act, and Ralph Act.  The Department's jurisdiction extends to individuals, private or public entities, housing providers, and business establishments within the State of California.

16. DFEH’s Recent Innovations  Improve Delivery of Public Service  Vigorous Enforcement of the Law  Expand Outreach to Stakeholders  Provide Civil Rights Leadership

17. Improve Delivery of Public Service  Automated Appointment System  Automated Right-to-Sue System – Important to complainants, the system contains an explanation on the administrative consequences of electing private action  Telephone In-Takes  Grading System

18. Vigorous Enforcement of the Law  Where violations are found, the Department has vigorously enforced the laws under our jurisdiction  Consistent with our civil rights mission, DFEH is a leader in advancing the development of the law and in shaping public policy – Director’s Complaints: High Impact and/or Underserved Cases – Class Complaints: Multiple Complainants – Co-Counsel with Other Agencies: EEOC, ALRB, US DOJ – Special Investigations Unit: Systemic Discrimination – Education: YouTube Videos, Curriculum, Lesson Plans

19. Expand Outreach to Stakeholders  Expanded the Department’s outreach to: – Civil and human rights organizations – Employee and employer groups – Tenant and landlord representatives – Plaintiffs’ and defense bars – Private and public sectors – All stakeholders in our diverse state  Continue to provide technical assistance and training to ensure full compliance with the laws under our jurisdiction

20. Summary of 2008 DFEH Cases

21. 2008 Employment Cases

22. 2008 Housing Cases

23. 2008 Accusations Filed

24. 2008 Closing Categories

25. 2008 Settlements

26. DFEH 2008 Cases  Orange County apartment complex pays $618,000 to settle housing discrimination class action.  California landlords pay $200,000 to settle pregnancy discrimination case.  United Air Lines, accused of discriminating against disabled mechanic, settled suit filed by DFEH for six figures.  DFEH announces $150,000 discrimination settlement against San Diego homeowners association.  State orders Terra Linda Farms to pay $111,000 for refusing to rehire farm laborer who protested sexual harassment.  Silicon Valley apartment complex pays $100,000 to settle alleged discrimination against tenants from India.  Citrus Heights apartment complex pays $70,000 to settle disability discrimination suit file by the DFEH.  Stockton hospital pays $65,000 to settle DFEH disability discrimination suit.  East Palo Alto apartment owners pay $25,000 to settle allege discrimination against African – American males.  Napa landlords, accused of evicting woman for having too many children, agree to pay $18,000 settlement.

27. The 50 th Celebration: Collaboration  Year-long plans to celebrate this historic marker for the FEHA  In collaboration with stakeholders, sponsor events throughout state to celebrate the advancement of the law (www.dfeh.ca.gov): Civil rights community Unsung heroes Model employers, businesses and housing providers Plaintiff and defense bars, minority bars and neutrals Private and public sectors All branches and levels of government

28. Publications Articles to commemorate the FEHA’s 50 th Anniversary (See www.dfeh.ca.gov)www.dfeh.ca.gov  “Playing House at the Bar” by DFEH Director Phyllis Cheng, on why the fair housing practice needs a home at the Bar in the Daily Journal.  “Avoid Fair Housing Pitfalls” by DFEH Deputy Director of Housing Beth Rosen-Prinz in Rental Housing Magazine.  “Celebrating the FEHA’s 50 th Anniversary: A Review of the Most Significant Cases” by Paul Hastings attorneys Katherine Huibonhoa, Karen Sherr, Stephanie Beckstrom, Rishi Sharma, Emilie Smith, Noah Glick and Joseph Anderson authored a review of significant California Supreme Court employment decisions in Bender’s California Labor & Employment Bulletin.

29. Termination Date Romano v. Rockwell International,Inc. (1996) 14 Cal. 4th 479  Termination occurs on the date of actual termination of employment, not on the date the employee receives notice that his employment will be terminated.

30. Continuing Violation Richards v. CH2M Hill, Inc. (2001) 26 Cal. 4th 798  The continuing violation doctrine exception to the statute of limitations applies to claims for failure to accommodate a disability and disability harassment under the FEHA.

31. Disability and Essential Functions of Job Green v. State of California (2007) 42 Cal. 4th 254  A plaintiff who cannot perform a job’s essential functions because of a disability, even after reasonable accommodation, is not qualified and has no discrimination claim. The plaintiff bears the burden of demonstrating that he or she is qualified.

32. Sexual Harassment Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264  Adult comedy writers’ use of sexually explicit language and gesturing in the presence of their female assistant did not constitute harassment within the meaning of the FEHA in the context of the creative workplace.

33. Hostile Work Environment Miller v. Dept. of Corrections (2005) 36 Cal. 4th 446  An employee may establish sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.

34. Strict Liability for Harassment State Dept. of Health Services v. Sup. Ct. (McGinnis) (2003) 31 Cal.4th 1026  Employers are strictly liable under the FEHA for sexual harassment by their supervisory employees. The Ellerth/Faragher defense to liability applicable in Title VII harassment cases does not apply to FEHA, although the defense may be used to limit damages.

35. No Strict Liability for Discrimination or Retaliation Reno v. Baird (1998) 18 Cal.4th 640  Individual supervisors may be liable for harassment but not discrimination. Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158  Nonemployer individuals may not be held personally liable under FEHA for their role in retaliation,

36. New Developments FEHA Housing Cases  Limited FEHA housing case law has meant over reliance on federal Fair Housing Amendments Act (FHAA) to interpret the FEHA. Victims aggrieved under FEHA’s broader protections can be impacted.  FEHA employment decisions can be applied to housing cases.  New State Bar Fair Housing and Public Accommodations Subsection will support the growth of the FEHA fair housing practice.

37. Emotional Distress Damages Konig v. Fair Employment and Housing Com. (2002) 28 Cal.4th 743  The FEHC’s authority to award emotional distress damages to housing discrimination complainants did not violate the judicial powers clause.

38. Marital Status Discrimination Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143  The FEHA's prohibition against discrimination because of marital status would not “substantially burden” a landlord's religious exercise within meaning of Religious Freedom Restoration Act or violate the landlord's rights under the State Constitution's free exercise and enjoyment of religion clause so as to exempt landlord from the FEHA.

39. Source of Income Discrimination Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386  The Sixth District Court of Appeal held that a day care operator stated a viable claim for intentional source of income discrimination in violation of the FEHA  Housing discrimination claim under FEHA may be founded on a disparate impact theory.  Fair housing organization was aggrieved person with standing to sue under the FEHA.

40. Companion Animal Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com. (2004) 121 Cal.App.4th 1578  The Third District Court of Appeal upheld the FEHC’s determination that a homeowners’ association had discriminated against condominium residents, a married couple who suffered from depression and other disorders, in failing to reasonably accommodate their disabilities by permitting them to keep a small companion dog.

41. Writ of Administrative Mandate Fair Employment and Housing Com. v. Superior Court (Las Brisas Apartment, Ltd.) (2004) 115 Cal.App.4th 629  the Second District Court of Appeal, Division Two, held that a writ of administrative mandate challenging the FEHC’s finding of liability against a landlord for race and familial status discrimination must be challenged within 30 days.

42. Group Housing Broadmoor San Clemente Homeowners Assn. v. Nelson (1994) 25 Cal.App.4th 1  The Sixth District Court of Appeal held the FEHA protects against unlawful discriminatory restrictions in group housing.

43. Studies: Planning the Next 50 Years  Conduct studies to take measure of the Act’s accomplishments, its gaps, and to recommend policies for the future  Invite academic and research institutions to study the FEHA – UCLA Law School-RAND Study – Loyola Law School Study  Provide the studies to policymakers and all stakeholders  Recommend a blueprint on advancing the FEHA for the next 50 years

44. The Act’s Renaissance  Issue DFEH Administrative Regulations in 2010 – Scope: intake to issuance of accusation – Hold hearings statewide – Invite public comments and testimony – File with Office of Administrative Law – Promulgate as new sections in California Code of Regulations

45. Collaborate with Us www.dfeh.ca.gov