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SB-218 Employment: discrimination enforcement: local government.(2019-2020)

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Date Published: 09/18/2019 04:00 AM
SB218:v93#DOCUMENT

Enrolled  September 17, 2019
Passed  IN  Senate  September 14, 2019
Passed  IN  Assembly  September 14, 2019
Amended  IN  Assembly  September 06, 2019
Amended  IN  Assembly  September 03, 2019
Amended  IN  Assembly  July 10, 2019
Amended  IN  Senate  April 25, 2019
Amended  IN  Senate  April 09, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 218

Introduced by Senator Bradford

February 06, 2019

An act to amend Section 12993 of, and to add Chapter 10 (commencing with Section 12997) to Part 2.8 of Division 3 of Title 2 of, the Government Code, relating to discrimination.


LEGISLATIVE COUNSEL'S DIGEST


SB 218, Bradford. Employment: discrimination enforcement: local government.
(1) The California Fair Employment and Housing Act (FEHA) prohibits discrimination in housing and employment on specified bases and provides procedures for enforcement by the Department of Fair Employment and Housing, including authorizing the department to accept complaints alleging violations of FEHA. Under FEHA, it is the intention of the Legislature that FEHA occupy the field of regulation of discrimination in employment, but that FEHA not limit or restrict the application of the Unruh Civil Rights Act. The Unruh Civil Rights Act generally prohibits business establishments from discriminating on specified bases.
This bill, among other things, would revise that preemption and authorize the legislative body of a local government, located within the County of Los Angeles, to enact a local antidiscrimination ordinance relating to employment, including establishing remedies and penalties for violations. The bill would authorize a local government to create a local agency to enforce local antidiscrimination laws (local enforcement agency). The bill would additionally authorize a local government to designate a local enforcement agency to act as a fair employment practice agency (FEPA) if that local enforcement agency agrees to accept all charges of employment discrimination that would be accepted by the federal government, subject to requirements described below. The bill would authorize a local enforcement agency to perform certain administrative, investigative, and enforcement actions, including the award of the full scope of remedies available under FEHA and any remedies available under the local antidiscrimination ordinance. The bill would require that the local agency establish a specified internet website and publish an annual report relating to complaints accepted. The bill would authorize a party to seek judicial review of an agency’s binding determination under these provisions.
This bill would deem a complaint filed with the local agency to also be a complaint under FEHA, except as specified. The bill would require the department to coordinate with a local enforcement agency to establish a specified filing relationship that allows the agency to accept complaints under FEHA. The bill would authorize an individual to file a complaint with both a local enforcement agency and the department, but would provide that initially filing a complaint with the department extinguishes a complainant’s right to file a complaint based on the same allegations with a local enforcement agency under a local antidiscrimination ordinance. The bill would require the department to notify a complainant of their right to dual file and of that extinguishment.
(2) The federal Equal Employment Opportunity Commission (EEOC) works with various states’ fair employment practice agencies to manage charges of discrimination under federal, state, and local laws.
This bill would require a local enforcement agency that has been designated as a FEPA to enter into a work sharing agreement with the EEOC, as specified, to provide for dual filing at the federal and local level. The bill would require a local enforcement agency that is not designated as a FEPA to help facilitate the filing of a complaint at the federal level.
This bill would make legislative findings and declarations as to the necessity of a special statute for the County of Los Angeles.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 12993 of the Government Code is amended to read:

12993.
 (a) The provisions of this part shall be construed liberally for the accomplishment of the purposes of this part. This part does not repeal any of the provisions of civil rights law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, or sexual orientation, unless those provisions provide less protection to the enumerated classes of persons covered under this part.
(b) The provisions in this part relating to discrimination in employment on account of sex or medical condition do not affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan, provided the terms or conditions are in accordance with customary and reasonable or actuarially sound underwriting practices.
(c) While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, this part does not limit or restrict the application of Section 51 of the Civil Code. The restrictions in this subdivision shall not apply to the regulation of discrimination in employment within the County of Los Angeles, as described in Chapter 10 (commencing with Section 12997).

SEC. 2.

 Chapter 10 (commencing with Section 12997) is added to Part 2.8 of Division 3 of Title 2 of the Government Code, to read:
CHAPTER  10. Local Employment Rights Enforcement

12997.
 (a) Notwithstanding any other law, the legislative body of a local government, located within the County of Los Angeles, may enact its own antidiscrimination ordinance relating to employment, including establishing remedies and penalties for violations.
(b) A local ordinance may increase employee protection against discrimination but shall not decrease existing protections under the California Fair Employment and Housing Act (hereinafter “the act”).
(c) A local ordinance may prohibit any conduct that independently constitutes an unlawful employment practice under the act and may prohibit conduct that is neither prohibited nor required by the act, but the ordinance shall not conflict with the act by prohibiting conduct that the act requires nor by requiring or authorizing conduct that the act prohibits.

12998.
 (a) The legislative body of a local government, located within the County of Los Angeles, may create a local agency (hereinafter “agency”) to investigate and enforce local antidiscrimination provisions.
(b) The agency may do all of the following:
(1) Accept claims for violations of the local antidiscrimination ordinances directly from a complainant.
(2) Investigate complaints, including the authority to issue subpoenas.
(3) Make determinations of violations of local antidiscrimination ordinances.
(4) Mediate and settle cases.
(5) Hold administrative hearings.
(6) Enforce judgments.
(c) The agency may award the full scope of remedies available under the act and any remedies available under the local antidiscrimination ordinance.
(d) The agency shall promulgate and enforce rules and administrative procedures, including, but not limited to, evidentiary rules created for the fair and efficient conduct of investigations, hearings, and appeals to carry out the purposes of the local antidiscrimination ordinances and the act. The Department of Fair Employment and Housing may adopt regulations imposing minimum standards for agency rules and administrative procedures.
(e) (1) The agency shall establish a public internet website that shall include the agency’s local ordinances and administrative policies for investigations and enforcement of complaints.
(2) The agency shall publish an annual report on its internet website detailing the number of complaints that the agency accepted and the disposition of those complaints.
(f) The Department of Fair Employment and Housing (hereinafter “department”) shall coordinate with the agency to establish a dual filing relationship that allows the agency to accept complaints under the act. This coordination includes any procedures that are specific to department operational considerations, including data collection and reporting, and to complaints under the act that are not already addressed by an agency’s agreement with the commission, pursuant to subdivision (e).
(g) The legislative body of a local government, located within the County of Los Angeles, may also designate the agency to act as a fair employment practice agency if the agency agrees to accept all charges of employment discrimination that the federal government would also accept.
(1) An agency designated as a fair employment practice agency shall enter into a work sharing agreement with the federal Equal Employment Opportunity Commission (hereinafter “commission”) setting forth the agency’s agreement to accept, investigate, and resolve claims and specify the responsibilities of the agency.
(2) If an agency is not designated as a fair employment practice agency, and there is a basis for the complaint under local and federal law, the agency shall help facilitate the filing of a timely complaint at the federal level.

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) A complaint filed with a local agency shall also be deemed a complaint under the act and shall satisfy the act’s administrative exhaustion requirements, unless the complainant opts out of filing any or all claims under the act.
(1) The statute of limitations with regard to all state law claims that relate back to any claim filed with a local agency shall be tolled as of the date of the first filing of a complaint with an agency.
(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires one year from the date notice of a pending binding decision is received under paragraph (1) of subdivision (g), one year from the date of the right-to-sue notice by the agency, or when the federal right-to-sue period to commence a civil action expires, whichever is later.
(d) 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.
(e) When a complaint is filed with an agency and is also deemed a complaint under the act, the agency is empowered to issue a right-to-sue notice under the act. However, the issuance of a right-to-sue notice under the act shall terminate the local agency’s administrative process with respect to the complaint.
(f) In the case of a claim filed with an agency that is also deemed a complaint under the act, if a local antidiscrimination ordinance does not give the agency the authority to issue a binding adjudication of the complaint, a right-to-sue notice shall be issued by the agency as follows:
(1) The complainant may request and receive a right-to-sue notice under the act at any time during the administrative process.
(2) The agency shall issue a right-to-sue notice under the act at the completion of its investigation or at the maximum time provided for investigations by the department, whichever is sooner.
(g) In the case of a claim filed with an agency that is also deemed a complaint under the act, if local law authorizes the agency to conduct or initiate a binding administrative adjudication of the complaint, a right-to-sue notice shall be issued by the agency as follows:
(1) The complainant may request and receive a right-to-sue notice under the act at any time during the administrative process until 10 business days after a notice is given that a binding decision will be issued. The notice shall inform the complainant that they will no longer be able to request a right-to-sue after 10 business days of receiving the notice and the notice shall also inform the complainant of their appeals rights after a binding decision is issued. Thereafter, no right-to-sue notice under the act may be issued by the agency and any claims under the act may be pursued with the agency only through administrative adjudication and subsequent appeals described in subdivision (h).
(2) The agency shall issue a right-to-sue notice under the act at the completion of its investigation or at the maximum time provided for investigations by the 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).
(h) Any party may obtain judicial review of an agency’s binding determination pursuant to Section 1094.5 of the Code of Civil Procedure.

SEC. 3.

 The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the need to establish a pilot program for local agency enforcement of antidiscrimination laws regarding employment in the County of Los Angeles.