SB 807

Bill Subjects

Abstract

Existing law establishes various civil rights, and authorizes a person denied one of those rights and, for certain rights, specified state and local law enforcement agencies to bring a civil action to enforce that right within a specified amount of time. Existing law, the California Fair Employment and Housing Act (FEHA) , establishes the Department of Fair Employment and Housing (DFEH) within the Business, Consumer Services, and Housing Agency under the direction of the Director of Fair Employment and Housing to enforce civil rights laws with respect to housing and employment and to protect and safeguard the right of all persons to obtain and hold employment without discrimination based on specified characteristics or status. The FEHA makes certain discriminatory employment and housing practices unlawful, and authorizes a person claiming to be aggrieved by an alleged unlawful practice to file a verified complaint with the DFEH. The FEHA requires the DFEH to make an investigation in connection with a filed complaint alleging facts sufficient to constitute a violation of the FEHA, and requires the DFEH to endeavor to eliminate the unlawful practice by conference, conciliation, and persuasion. If conference, conciliation, mediation, or persuasion fails and the DFEH has required all parties to participate in a mandatory dispute resolution, as specified, the FEHA authorizes the director to bring a civil action in the name of the DFEH on behalf of the person claiming to be aggrieved within a specified amount of time. This bill would toll the deadline for the DFEH to file a civil action pursuant to the FEHA while a mandatory or voluntary dispute resolution is pending. Under this bill, when a complaint is filed with DFEH for an alleged violation of certain laws, the time for complainants to file their own civil actions under those provisions would be tolled until either the DFEH files a civil action or one year after the DFEH issues written notice to the complainant that it has closed its investigation and elected not to file a civil action. The bill would apply this tolling retroactively, but would specify that the provisions are not intended to revive claims that have already lapsed. The FEHA prohibits an aggrieved person from commencing a civil action with respect to an alleged discriminatory housing practice that forms the basis of a civil action brought by the DFEH. This bill would remove that prohibition. The FEHA requires a civil action for specified unlawful practices to be brought in a county in which the practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. The FEHA authorizes the action to be brought in the county of the defendant's resident or principal office. This bill, instead, would require the action to be brought in a county in which the practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices, in the county of the defendant's residence or principal office, or, if the civil action includes class or group allegations on behalf of the department, in any county in the state. If the DFEH does not bring a civil action for certain unlawful employment practices 150 days after the filing of a complaint or determines that it will not bring a civil action, the FEHA requires the DFEH to notify the person claiming to be aggrieved, indicating that person may bring a civil action pursuant to the FEHA. This bill, for a complaint treated as a group or class complaint, as specified, would instead require the department to issue a right-to-sue notice upon completion of its investigation, and not later than 2 years after the filing of the complaint. The FEHA makes it an unlawful practice for a person to deny or to aid, incite, or conspire in the denial of certain civil rights, including those protected by a cause of action for sexual harassment that occurs as part of a professional relationship. Existing law prohibits a program or activity that is conducted, operated, or administered by the state or by a state agency, is funded directly by the state, or receives financial assistance from the state from unlawfully denying a person the full and equal access to the benefits of, or unlawfully discriminating against a person under, that program or activity, on the basis of specified characteristics. Existing law prohibits an employer from paying any of its employees at wage rates less than the rates paid to employees of the opposite sex or of another race or ethnicity for substantially similar work, as specified. Existing law authorizes an employee who receives less than the required wage to commence a civil action no later than 2 years after the cause of action occurs, unless the cause of action arose out of a willful violation, in which case the employee is authorized to commence no later than 3 years after the cause of action occurs. Existing law makes human trafficking, as defined, a crime, and authorizes a victim of human trafficking to bring a civil action for specified relief and remedies within 7 years of the date that the trafficking victim was freed from the trafficking situation or, if the victim was a minor when the act of human trafficking against the victim occurred, within 10 years after the date the plaintiff attains the age of majority. Under the FEHA, the DFEH is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging violations of those civil rights and laws, as specified. The FEHA prohibits filing a complaint with the DFEH alleging certain civil rights violations one year after the unlawful practice or refusal to cooperate occurred. The FEHA prohibits filing a complaint alleging any other unlawful practice, including a sexual harassment claim that occurs as part of a professional relationship, 3 years after the unlawful practice or refusal to cooperate occurred. Under the FEHA, the amount of time within which to file a complaint is extended under certain circumstances, including for one year from the date that a person allegedly aggrieved by an unlawful practice attains the age of majority. This bill, instead, would subject the filing of a complaint with the DFEH alleging sexual harassment that occurred as part of a professional relationship to the one-year limitation, and would subject the filing of a complaint alleging a violation of the above-described prohibition on unlawful discrimination by a state program or activity to the 3-year limitation. The bill, instead, would prohibit the filing of a complaint alleging a violation of the above-described wage discrimination laws after the expiration of the applicable period for commencing a civil action pursuant to those wage discrimination laws. Under this bill, filing a complaint with the DFEH alleging human trafficking would be subject to the same time limitations, and extensions of those time limitations, as those imposed on a civil action for human trafficking. The FEHA requires the department or private counsel of the claimant, as specified, to serve a filed complaint either personally or by certified mail with return receipt requested upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice. This bill would additionally authorize the complaint to be served electronically, as specified. The bill would also authorize service by leaving a copy of the complaint at the office or usual mailing address of the person or entity being served, followed by mailing a copy to that place by first-class mail, as specified. The bill would also authorize service by sending by first-class mail or airmail to that person or entity a copy of the complaint, 2 copies of a certain notice and acknowledgment of receipt, and a prepaid postage envelope addressed to the sender, followed by execution and return of a written acknowledgment of receipt to the sender. The bill would also authorize service by any means specified in the Code of Civil Procedure. The FEHA requires certain employers, labor organizations, and employment agencies to maintain specified employment-related records and files for at least 2 years and authorizes the department to seek judicial relief to enforce these retainer provisions. The FEHA exempts the State Personnel Board from the 2-year retention requirement and requires the board instead to maintain the records and files for one year. This bill would increase the above-described records and files retention requirement from 2 years to 4 years and would delete the exemption of the State Personnel Board, thus requiring the board to retain these records for 4 years. The FEHA grants the DFEH specified enforcement powers, including the power to petition the superior courts to compel compliance with investigations of the DFEH pursuant to certain employment or housing discrimination complaints, as specified. Existing law requires the Director of DFEH to consult with the Attorney General regarding the defense of a writ petition to a decision of the former Fair Employment and Housing Commission for specified challenges pending on or after January 1, 2013. This bill would make a nonsubstantive change to the requirement that the Director of DFEH consult with the Attorney General. The FEHA permits filing these petitions in any county in which the department's investigation or inquiry takes place, but if the respondent to a complaint is not found within any such county, the petition may be brought in the county of the respondent's residence or principal office. The FEHA provides that a superior court order on these petitions is final and not subject to review by appeal, but authorizes a party aggrieved by the order to serve and file in the appropriate court of appeal a petition for a writ of mandamus to compel the court to set aside or otherwise modify its order. The FEHA provides specific procedures regarding the stay of an order following the filing of a petition for a writ of mandamus. This bill would permit filing these petitions either in a county in which the department's investigation or inquiry takes place or in the county of the respondent's residence or principal office. The bill would also subject a superior court order on these petitions to immediate review by appeal, and permit an aggrieved party to serve and file a notice of appeal within 15 days after the service of the superior court's order. The bill would require the appeal to have precedence in the court to which the appeal is taken. The bill would also authorize a court to award reasonable attorney's fees and costs, including expert witness fees, to a prevailing party, including the department, for these petitions and appeals. The bill, however, would only authorize attorney's fees and costs recovery for a prevailing respondent if the court finds the petition or appeal was frivolous, unreasonable, or without merit when brought, or the petitioner continued to litigate after it clearly became so.