1. Why the DFEH is the Canary in a Mineshaft for Civil Rights
Phyllis W. Cheng, Director
Department of Fair Employment and Housing
State of California | State and Consumer Services Agency
Canaries were once regularly used in coal mining as an early warning system.[1] Toxic gases such as carbon monoxide and methane in the mine would kill the bird before affecting the miners. Because canaries tend to sing much of the time, they provided both a visual and audible cue in this respect. The use of so called miner's canaries in British mines was phased out as recently as 1987.[2]
Hence, the phrase "canary in a coal mine" is frequently used to refer to a person or thing which serves as an early warning of a coming crisis. By analogy, the term climate canary is used to refer to a species that is affected by an environmental danger prior to other species, thus serving as an early warning system for the other species with regard to the danger.[3]

2. Question Is the DFEH obsolete? Can it survive?
At this half-century mark of the Fair Employment and Housing Act (FEHA), the growth of the robust employment bar has made the litigation of workplace discrimination one of the most active and sophisticated practice areas. Is the Department of Fair Employment (DFEH) obsolete? My answer is a resounding “no.”

3. Answer The Department is a canary in a mineshaft for civil rights.
Prophet of the past.
Siren of the present.
Oracle of the future.
There is life after the mineshaft.

4. The Beginning Threatened March on Washington
In 1941, civil rights leaders organized a 100,000-person march to Washington to protest against discrimination in the defense industries.
Cottrell Laurence “C. L.” Dellums, a Californian and leader of the Brotherhood of Sleeping Car Porters, was one of the organizers.

5. Early National Response
Executive Order 8802
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, 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.
Governor Pat Brown signs the Fair Employment Practices Act into law on April 16, Joining the ceremony (left to right) are: William Becker, Jewish Labor Committee; Senator Richard Richards (D-LA County); Neil Haggerty, California Labor Federation; Senator George Miller (D-Contra Costa County); Nathan Colley, NAACP; Assemblymember Byron Rumford (D-Berkeley and Oakland); C.L. Dellums, Sleeping Car Porters and NAACP; Max Mont, Jewish Labor Committee; Assemblymember Augustus Hawkins (D-LA); and Franklin Williams, NAACP.
Prohibitions: discrimination in employment on the basis of race, religious creed, color, national origin, and ancestry. 
Jurisdiction: employers of 5 or more persons, labor organizations, employment agencies, and any person aiding or abetting the forbidden actions.

6. March on Sacramento
From , Assemblymen Augustus Hawkins’ and Byron Rumford’s California’s FEP bills were defeated.
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 for FEP legislation.

7. Fair Employment Practices Act
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.
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.
The FEPA established a five-member Fair Employment and Practices Commission (FEPC) appointed by the Governor.
The FEPA established an administrative agency, the Division of Fair Employment and Practices, housed in the Department of Industrial Relations, to carry out the policies of the Commission.

8. 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.
The FEHC adjudicates these claims and promulgates regulations.

9. Department of Fair Employment & Housing
The mission of the DFEH is to protect Californians from employment, housing and public accommodation discrimination, and hate violence.
The DFEH enforces the Fair Employment and Housing Act (FEHA), Unruh Civil Rights Act, Ralph Civil Rights Act, Disabled Persons Act.  
Its jurisdiction extends to individuals, private or public entities, housing providers, and business establishments within the State of California.

10. Protection for Part-Time Employees
Prophet of the Past
Jurisdiction:
Protection for Part-Time Employees
Robinson v. Fair Employment and Housing Com'n (1992) 2 Cal.4th 226.
A part-time female dental assistant working for a dentist, a small employer with 5 or more employees, was subject to the protection of the FEHA on pregnancy discrimination.

11. Pregnancy Disability Leave
California Federal Sav. and Loan Ass'n v. Guerra (1987) 479 U.S. 272.
Pregnancy disability leave under the FEHA is not preempted by Title VII, providing benefits for California working women.
Lillian Garland was employed by Cal Fed as a receptionist for several years. In January 1982, she took a pregnancy disability leave. When she was able to return to work in April of that year, Garland notified Cal Fed, but was informed that her job had been filled and that there were no receptionist or similar positions available. Garland filed a complaint with respondent Department of Fair Employment and Housing, which issued an administrative accusation against Cal Fed on her behalf.FN7 Respondent charged Cal Fed with violating § 12945(b)(2) of the FEHA. Prior to the scheduled hearing before respondent Fair Employment and Housing Commission, Cal Fed, joined by petitioners Merchants and Manufacturers Association and the California Chamber of Commerce, brought an action in the United States District Court for the Central District of California.
Cal Fed, joined by trade association of employers and another organization (including NOW) representing businesses in state, brought suit seeking declaration that California statute requiring employers to provide leave and reinstatement to employees disabled by pregnancy was preempted by Title VII. The district court granted summary judgment in their favor, and the Court of Appeals for the Ninth Circuit reversed, 758 F.2d 390. Certiorari was granted. The Supreme Court, Justice Marshall, held that: (1) Pregnancy Discrimination Act does not prohibit employment practices favoring pregnant women; (2) California statute is not inconsistent with, and thus is not preempted by, Title VII as amended by Pregnancy Discrimination Act; and (3) even if PDA prohibited favorable treatment of pregnant workers, California statute would not require employers to violate Title VII.

12. Bona Fide Occupational Qualification
Johnson Controls, Inc. v. California Fair Employment And Housing Com'n (Foster) (1990) 218 Cal.App.3d 517.
Employer battery plant's fetal protection program denying employment to women of childbearing age violated the sex discrimination prohibition under the FEHA
Plan was not a bona fide occupational qualification.

13. Sexual Harassment
Dept. Fair Empl. & Hous. v. Madera County (Hauksdottir) (1990) FEHC Precedential Dec. No [1990 WL ; CEB 1].
In this sexual harassment/sexual assault case, the Fair Employment and Housing Commission (FEHC) held in a precedential decision that non-supervisory coworkers can be liable for harassment under the FEHA.
David Benjamin Oppenheimer, Director of the Boalt Hall Employment Discrimination Clinic and Department Staff Attorney, represented the Department of Fair Employment and Housing.

14. Disability Discrimination
Raytheon Co. v. California Fair Employment & Housing Com'n (Estate of Chadbourne) (1989) 212 Cal.App.3d 1242.
AIDS is a disability under the FEHA.

15. Social Clubs
Bohemian Club v. Fair Employment and Housing Com'n (1987) 87 Cal.App.3d 1.
Social clubs were not exempt from nondiscrimination policies of FEHA.
FEHA was not preempted by Title VII.
Male gender was not a bona fide occupational qualification for employment at club.

16. To SOAR as the nation’s top state civil rights agency.
Siren of Today
To SOAR as the nation’s top state civil rights agency.
Service: Deliver effective and efficient public services.
Outreach: Provide educational outreach to prevent discrimination.
Advocacy: Enforce the law & resolve disputes where violations are found.
Resource: Develop resources to advance civil rights

17. Service Automated Appointment System Automated Right-to-Sue System
Telephone In-Takes
Case Grading System

18. Outreach
Expanded the Department’s outreach to all stakeholders in California.
FEHA 50th anniversary collaborations statewide.
Continue to provide technical assistance and training to ensure full compliance with the laws under our jurisdiction.
Mass Communications.
YouTube Channel and Website: Equal Rights 101, Fair Housing 101, Public Accommodation, Hate Violence Prevention.
Facebook: DFEH Page.
Twitter: Case Law Alerts.

19. Debut of the DFEH Mascot
Macie the Pug
Designed by Ramon Velez

20. Advocacy Vigorously enforced the law where violations are found.
New developments to shape public policy:
Special Investigations Unit: Systemic Discrimination
Director’s Complaints: High Impact and/or Underserved Cases
Class Complaints: Multiple Complainants
Cross-Train/Co-Counsel with Other Agencies: EEOC, HUD, ALRB, DLSE, US DOJ

21. Resource: Employment California Labor & Employment Law Review, 2009.
California Labor & Employment Case Alerts, 2009.
“Celebrating the FEHA’s 50th 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, review of significant California Supreme Court employment decisions in Bender’s California Labor & Employment Bulletin, January 2009.
California Labor & Employment Law Section Executive Committee and other Bar groups.
Employment Round Tables.

22. Resource: Housing
New State Bar Fair Housing and Public Accommodations Subsection will support the growth of the FEHA fair housing practice.
Symposium at Golden Gate University School of Law, April Disability in Housing Webinar in November 2009.
FHPA State Bar e-Circle.
Potential California Fair Housing/Public Accommodations Practice Guide.
More seminars and webinars to come.
“Playing House with 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.
Special fair housing/public accommodations issue in the California Real Property Journal, December 2009.
NFHTA Predatory lending/Foreclosure Seminars.

23. Summary of 2009 DFEH Cases

24. 2009 Employment Cases

25. 2009 Accusations Filed

26. 2009 Closing Categories

27. 2009 Settlements

28. Recent FEHC Decisions
In SASCO Electric v. California Fair Employment and Housing Commission (Scherl) (2009) 176 Cal.App.4th 532, the California Court of Appeal upheld the decision of the Commission on a pregnancy discrimination case, which ordered a damage award in excess of $150,000 plus front wages ($125,000 plus front wages and a $25,000 administrative fine).
In DFEH v. Terra Linda Farms (Rivas), the FEHC ordered an agricultural business to pay $111,000 for refusing to rehire farm laborer who protested sexual harassment.
In DFEH v. Acosta Tacos (Chavez), the FEHC ordered a Los Angeles taqueria owner to pay $46,645 for firing new mom who used break time to breastfeed her baby in car. This is the first time a termination because of breast feeding is deemed sex discrimination under the FEHA.
In DFEH v. Hudson (Ford), the FEHC held in a sexual harassment case involving a 16-year-old employee that minors may bring an action until their 18th birthday no matter when the harm occurred.

29. Recent DFEH Settlements
Three SIU settlements in the last three months: 59 workers are receiving over $712,000 and broad injunctive relief.
DFEH announces $259,853 class/group action settlement in employment disability complaint against Loma Linda University Medical Center.
Department of Fair Employment and Housing announces $325,000 settlement in breast cancer discrimination case
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.
California building maintenance company pays $49, to settle sexual harassment retaliation case.

30. Oracle of the Future New Trends: 2007-2009

31. Productivity under Case Grading

32. UCLA-RAND Policy Study
Invited UCLA-RAND Center for Law and Public Policy invited to conduct a policy study of the FEHA.
Recommend a blueprint on advancing the FEHA for the next 50 years.
Provide the study to policymakers and all stakeholders.

33. UCLA-RAND Findings Employment Discrimination Complaints
by Most Common Protected Categories
Year
Sex
Disability
Race/Color
National Origin
Age
1997
5,919
2,235
3,735
1,528
2,709
1998
5,874
2,728
3,885
1,522
2,422
1999
5,816
2,835
3,603
1,502
2,369
2000
5,386
2,626
3,374
1,275
2,431
2001
5,411
3,051
3,679
1,311
2,410
2002
5,665
3,404
3,571
1,404
2,409
2003
4,862
3,401
3,300
1,192
2,374
2004
4,230
3,355
2,558
892
2,345
2005
4,207
3,487
2,551
922
2,446
2006
3,756
3,515
2,171
847
2,207
2007
4,327
3,610
2,463
707
2,332
2008
4,556
3,925
2,939
920
2,841
% Change
-23.0%
75.6%
-21.3%
-39.8%
4.9%

34. UCLA-RAND Study Primary Alleged Act: 1997-2008

35. UCLA-RAND Study Complaints by Firm Size
Number of Employees
Complaints
% of Complaints
5 or less
11,616
5.5%
6-14
18,233
8.6%
15-99
70,605
33.5%
57,309
27.2%
12,558
6.0%
26,822
12.7%
5,135
2.4%
8,718
4.1%
210,996
100.0%

36. DFEH into the Future
R.I.P.?

37. Out of the Mineshaft Survive the budget crisis.
Maximize effectiveness and efficiency.
Save jobs.
Cut space.
Start new initiatives.
Conduct regulatory project in 2010.

38. DFEH Renaissance