Why the DFEH is the Canary Why the DFEH is the Canary in a Mineshaft for Civil Rightsin a Mineshaft for Civil Rights

Phyllis W. Cheng, DirectorPhyllis W. Cheng, DirectorDepartment of Fair Employment and HousingDepartment of Fair Employment and HousingState of California | State and Consumer Services AgencyState of California | State and Consumer Services Agency

QuestionQuestion

Is the DFEH obsolete?Is the DFEH obsolete? Can it survive?Can it survive?

AnswerAnswer

The Department is a canary in a mineshaft The Department is a canary in a mineshaft for civil rights.for civil rights.

Prophet of the past.Prophet of the past.

Siren of the present.Siren of the present.

Oracle of the future.Oracle of the future.

There is life after the mineshaft.There is life after the mineshaft.

The BeginningThe Beginning

Threatened March on Threatened March on WashingtonWashington

In 1941, civil rights leaders In 1941, civil rights leaders organized a 100,000-organized a 100,000-person march to person march to Washington to protest Washington to protest against discrimination in against discrimination in the defense industries. the defense industries.

Cottrell Laurence “C. L.” Cottrell Laurence “C. L.” Dellums, a Californian and Dellums, a Californian and leader of the Brotherhood leader of the Brotherhood of Sleeping Car Porters, of Sleeping Car Porters, was one of the organizers.was one of the organizers.

Early National ResponseEarly National Response

Executive Order 8802Executive Order 8802President Franklin D. Roosevelt President Franklin D. Roosevelt issued Executive Order 8802 to issued Executive Order 8802 to establish a national Fair establish a national Fair Employment Practices Commission Employment Practices Commission to handle complaints of race, to handle complaints of race, creed, color or national origin creed, color or national origin discrimination. discrimination.

In 1945, the national Commission In 1945, the national Commission disbanded.disbanded.

That year, FEP legislation was That year, FEP legislation was introduced in five states: California, introduced in five states: California, New York, Pennsylvania, New York, Pennsylvania, Massachusetts and New Jersey. Massachusetts and New Jersey. All adopted laws except California. All adopted laws except California.

March on SacramentoMarch on Sacramento

From 1945-1958, Assemblymen Augustus Hawkins’ and Byron From 1945-1958, Assemblymen Augustus Hawkins’ and Byron Rumford’s California’s FEP bills were defeated. Rumford’s California’s FEP bills were defeated.

In 1946, Californians rejected Proposition 11 to adopt a FEP In 1946, Californians rejected Proposition 11 to adopt a FEP measure. measure.

In 1953, the California Committee for Fair Employment Practices In 1953, the California Committee for Fair Employment Practices mounted a March on Sacramento for FEP legislation. mounted a March on Sacramento for FEP legislation.

Fair Employment Practices ActFair Employment Practices Act

On April 16, 1959, Governor Pat Brown signed On April 16, 1959, Governor Pat Brown signed the Fair Employment Practices Act of 1959, the Fair Employment Practices Act of 1959, which took effect on September 18, 1959.which took effect on September 18, 1959.

The FEPA prohibited discrimination in The FEPA prohibited discrimination in employment on the basis of race, religious employment on the basis of race, religious creed, color, national origin, and ancestry.  creed, color, national origin, and ancestry. 

The Act’s jurisdiction covered employers of 5 or The Act’s jurisdiction covered employers of 5 or more persons, labor organizations, employment more persons, labor organizations, employment agencies, and any person aiding or abetting the agencies, and any person aiding or abetting the forbidden actions.forbidden actions.

Fair Employment and Housing ActFair Employment and Housing Act

In 1980, Governor Jerry Brown In 1980, Governor Jerry Brown and the Legislature reorganized and the Legislature reorganized civil rights enforcement. civil rights enforcement.

The FEPA and the Rumford Act The FEPA and the Rumford Act were combined and renamed as were combined and renamed as the FEHA to protect Californians the FEHA to protect Californians from both employment and from both employment and housing discrimination. housing discrimination.

Under the FEHA, the DFEH Under the FEHA, the DFEH investigates, conciliates and investigates, conciliates and prosecutes discrimination prosecutes discrimination complaints.complaints.

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

Department of Fair Employment & HousingDepartment of Fair Employment & Housing

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

Prophet of the PastProphet of the Past

Jurisdiction:Jurisdiction:Protection for Part-Time EmployeesProtection for Part-Time Employees

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

Pregnancy Disability LeavePregnancy Disability Leave

California Federal Sav. and Loan Ass'n v. California Federal Sav. and Loan Ass'n v. GuerraGuerra (1987) 479 U.S. 272. (1987) 479 U.S. 272.

Pregnancy disability leave under the Pregnancy disability leave under the FEHA is not preempted by Title VII, FEHA is not preempted by Title VII, providing benefits for California working providing benefits for California working women.women.

Bona Fide Occupational QualificationBona Fide Occupational Qualification

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

Sexual HarassmentSexual Harassment

Dept. Fair Empl. & Hous. v. Madera CountyDept. Fair Empl. & Hous. v. Madera County ((HauksdottirHauksdottir) (1990) FEHC Precedential Dec. ) (1990) FEHC Precedential Dec. No. 90-03 [1990 WL 312871; 1990-91 CEB No. 90-03 [1990 WL 312871; 1990-91 CEB 1].1].

In this sexual harassment/sexual assault In this sexual harassment/sexual assault case, the Fair Employment and Housing case, the Fair Employment and Housing Commission (FEHC) held in a precedential Commission (FEHC) held in a precedential decision that non-supervisory coworkers can decision that non-supervisory coworkers can be liable for harassment under the FEHA.be liable for harassment under the FEHA.

Disability DiscriminationDisability Discrimination

Raytheon Co. v. California Fair Raytheon Co. v. California Fair Employment & Housing Com'nEmployment & Housing Com'n ( (Estate of Estate of ChadbourneChadbourne) (1989) 212 Cal.App.3d 1242.) (1989) 212 Cal.App.3d 1242.

AIDS is a disability under the FEHA. AIDS is a disability under the FEHA.

Social ClubsSocial Clubs

Bohemian Club v. Fair Employment and Bohemian Club v. Fair Employment and Housing Com'nHousing Com'n (1987) 87 Cal.App.3d 1. (1987) 87 Cal.App.3d 1.

Social clubs were not exempt from Social clubs were not exempt from nondiscrimination policies of FEHA.nondiscrimination policies of FEHA.

FEHA was not preempted by Title VII.FEHA was not preempted by Title VII.

Male gender was not a bona fide Male gender was not a bona fide occupational qualification for employment occupational qualification for employment at club.at club.

Siren of TodaySiren of Today

To SOAR as the nation’s top state civil rights agency.To SOAR as the nation’s top state civil rights agency.

SService: ervice: Deliver effective and efficient Deliver effective and efficient public services. public services.

OOutreach:utreach: Provide educational outreach to Provide educational outreach to prevent discrimination. prevent discrimination.

AAdvocacy:dvocacy: Enforce the law & resolve disputes Enforce the law & resolve disputes where violations are found. where violations are found.

RResource:esource: Develop resources to advance Develop resources to advance civil rights civil rights

ServiceService

Automated Appointment SystemAutomated Appointment System

Automated Right-to-Sue SystemAutomated Right-to-Sue System

Telephone In-Takes Telephone In-Takes

Case Grading SystemCase Grading System

OutreachOutreachExpanded the Department’s outreach to all stakeholders Expanded the Department’s outreach to all stakeholders in California. in California.

FEHA 50FEHA 50thth anniversary collaborations statewide. anniversary collaborations statewide.

Continue to provide technical assistance and training to Continue to provide technical assistance and training to ensure full compliance with the laws under our jurisdiction.ensure full compliance with the laws under our jurisdiction.

Mass Communications.Mass Communications.

YouTube Channel and Website: Equal Rights 101, Fair Housing YouTube Channel and Website: Equal Rights 101, Fair Housing 101, Public Accommodation, Hate Violence Prevention. 101, Public Accommodation, Hate Violence Prevention. Facebook: DFEH Page.Facebook: DFEH Page.Twitter: Case Law Alerts.Twitter: Case Law Alerts.

Debut of the DFEH MascotDebut of the DFEH MascotMacie the PugMacie the PugDesigned by Ramon VelezDesigned by Ramon Velez

AdvocacyAdvocacy

Vigorously enforced the law where violations are Vigorously enforced the law where violations are found.found.

New developments to shape public policy: New developments to shape public policy: Special Investigations Unit: Systemic DiscriminationSpecial Investigations Unit: Systemic Discrimination

Director’s Complaints: High Impact and/or Director’s Complaints: High Impact and/or Underserved CasesUnderserved Cases

Class Complaints: Multiple ComplainantsClass Complaints: Multiple Complainants

Cross-Train/Co-Counsel with Other Agencies: EEOC, Cross-Train/Co-Counsel with Other Agencies: EEOC, HUD, ALRB, DLSE, US DOJHUD, ALRB, DLSE, US DOJ

Resource: EmploymentResource: Employment

California Labor & Employment Law Review, California Labor & Employment Law Review, 2009.2009.

California Labor & Employment Case AlertsCalifornia Labor & Employment Case Alerts, 2009., 2009.

““Celebrating the FEHA’s 50Celebrating the FEHA’s 50thth Anniversary: A Review of the Most Significant Anniversary: A Review of the Most Significant Cases” by Paul Hastings attorneys Katherine Huibonhoa, Karen Sherr, Cases” by Paul Hastings attorneys Katherine Huibonhoa, Karen Sherr, Stephanie Beckstrom, Rishi Sharma, Emilie Smith, Noah Glick and Joseph Stephanie Beckstrom, Rishi Sharma, Emilie Smith, Noah Glick and Joseph Anderson, review of significant California Supreme Court employment Anderson, review of significant California Supreme Court employment decisions in decisions in Bender’s California Labor & Employment Bulletin, Bender’s California Labor & Employment Bulletin, January January 2009. 2009.

California Labor & Employment Law Section Executive Committee and California Labor & Employment Law Section Executive Committee and other Bar groups.other Bar groups.

Employment Round Tables.Employment Round Tables.

Resource: HousingResource: Housing New State Bar Fair Housing and Public Accommodations Subsection New State Bar Fair Housing and Public Accommodations Subsection will support the growth of the FEHA fair housing practice.will support the growth of the FEHA fair housing practice.Symposium at Golden Gate University School of Law, April 2009. Symposium at Golden Gate University School of Law, April 2009. Disability in Housing Webinar in November 2009.Disability in Housing Webinar in November 2009.FHPA State Bar e-Circle.FHPA State Bar e-Circle.Potential California Fair Housing/Public Accommodations Practice Potential California Fair Housing/Public Accommodations Practice Guide.Guide.More seminars and webinars to come.More seminars and webinars to come.““Playing House with the Bar” by DFEH Director Phyllis Cheng, on why Playing House with the Bar” by DFEH Director Phyllis Cheng, on why the fair housing practice needs a home at the Bar in the the fair housing practice needs a home at the Bar in the Daily JournalDaily Journal..““Avoid Fair Housing Pitfalls” by DFEH Deputy Director of Housing Avoid Fair Housing Pitfalls” by DFEH Deputy Director of Housing Beth Rosen-Prinz in Beth Rosen-Prinz in Rental Housing MagazineRental Housing Magazine..Special fair housing/public accommodations issue in the Special fair housing/public accommodations issue in the California California Real Property Journal, Real Property Journal, December 2009.December 2009.NFHTA Predatory lending/Foreclosure Seminars.NFHTA Predatory lending/Foreclosure Seminars.

Summary of 2009 DFEH CasesSummary of 2009 DFEH CasesCalifornia Department of Fair Employment and Housing

Calendar Year: 200918,666 Cases Filed: by Law

Unruh71 Cases

.5%

Ralph24 Cases

.5%

Housing954 Cases

5%Employment17,617 Cases

94%

2009 Employment Cases2009 Employment CasesCalifornia Department of Fair Employment and Housing

Calendar Year: 2009Cases Filed: by Bases (Employment Cases)

Age - 40 or Over3,903

Association - Must be Used with Another Basis

389

Disability - Mental and Physical7,466

Family Care775

Marital Status336

National Origin/Ancestry1,953

Other1,912

Race/Color3,510

Religion530

Retaliation6,527

Sex - Harassment3,834

Sex - Orientation805

Sex - Other Allegations2,269

Sex - Pregnancy1,054

2009 Accusations Filed2009 Accusations FiledCalifornia Department of Fair Employment and Housing

Calendar Year: 2009Accusations Filed: by Bases (All Laws)

Employment: Age, 1.9%

Employment: Association, 1.0%

Employment: Family Care, 5.8%

Employment: Marital Status, 1.0%

Employment: Disability, 31.1%

Employment: Race/Nat. Origin, 6.8%

Employment: Religion, 1.0%

Employment: Retaliation, 3.8%

Employment: Sex-Harassment, 8.7%

Employment: Sex-Orientation, 1.0%

Employment: Sex-Other Allegations, 3.8%

Employment: Sex-Pregnancy, 4.9%

Housing: Disability, 4.9%

Housing: Race/Color, 2.9%

Housing: Retaliation, 1.0%

Housing: Sex-Harassment, 1.0%

Housing: Sex-Orientation, 1.9%

Housing: Sex-Other Allegations, 1.0%

Public Accommodation: Disability, 1.0%

Housing: Familial Status, 15.5%

2009 Closing Categories2009 Closing CategoriesCalifornia Department of Fair Employment and Housing

Calendar Year: 2009Cases Closed: by Closing Category (All Laws)

Legal - Accusations/Civil105 Closures

1%

Settlements1,169 Closed

6%

Insufficient Evidence4,971 Closed

24%

Administrative Closures 1,577 Closed

8%

Immediate Right-to-Sue and Complaints for Filing

Purposes Only12,575 Closed

61%

2009 Settlements2009 Settlements

California Department of Fair Employment and HousingFiscal Year: 2008 - 2009*

Closed Cases: by Settlement Amount (909 Cases - $9,012,260)

Post Accusation$2,558,371

Average per Case $40,609(63 Cases)

Pre Accusation$6,453,889

Average per Case $7,629(846 Cases)

Recent FEHC DecisionsRecent FEHC DecisionsIn 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.

Recent DFEH SettlementsRecent DFEH SettlementsThree SIU settlements in the last three months: 59 workers are receiving over $712,000 and Three SIU settlements in the last three months: 59 workers are receiving over $712,000 and broad injunctive relief.broad injunctive relief.DFEH announces $259,853 class/group action settlement in employment disability complaint DFEH announces $259,853 class/group action settlement in employment disability complaint against Loma Linda University Medical Center. against Loma Linda University Medical Center. Department of Fair Employment and Housing announces $325,000 settlement in breast cancer Department of Fair Employment and Housing announces $325,000 settlement in breast cancer discrimination case discrimination case California landlords pay $200,000 to settle pregnancy 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 United Air Lines, accused of discriminating against disabled mechanic, settled suit filed by DFEH for six figures. for six figures. DFEH announces $150,000 discrimination settlement against San Diego homeowners DFEH announces $150,000 discrimination settlement against San Diego homeowners association. association. State orders Terra Linda Farms to pay $111,000 for refusing to rehire farm laborer who protested State orders Terra Linda Farms to pay $111,000 for refusing to rehire farm laborer who protested sexual harassment. sexual harassment. Silicon Valley apartment complex pays $100,000 to settle alleged discrimination against tenants Silicon Valley apartment complex pays $100,000 to settle alleged discrimination against tenants from India. from India. Citrus Heights apartment complex pays $70,000 to settle disability discrimination suit file by the Citrus Heights apartment complex pays $70,000 to settle disability discrimination suit file by the DFEH. DFEH. Stockton hospital pays $65,000 to settle DFEH disability discrimination suit. Stockton hospital pays $65,000 to settle DFEH disability discrimination suit. California building maintenance company pays $49,000.00 to settle sexual harassment retaliation California building maintenance company pays $49,000.00 to settle sexual harassment retaliation case. case.

Oracle of the FutureOracle of the FutureNew Trends: 2007-2009New Trends: 2007-2009

CA Department of Fair Employment and HousingEmployment Cases Filed by Month

Count of Open Cases Listed at Beginning of MonthCalendar Years: 2007 - 2009

13

65

12

75

13

30

13

39

14

06

13

98

14

01

14

63

12

76

15

13

13

79

12

51

13

09

14

62

15

54

17

79

16

03

17

13

15

07

16

15

16

74

18

63

12

74

14

33

14

07

14

24

15

94

15

56

14

49

15

61

14

78

13

08

14

32 17

01

13

63

13

35

44

84

44

97

43

76

43

67

43

88

42

58

42

69

42

06

41

32

40

72

40

89

41

71

41

48

40

93

40

44

41

37

42

20

42

40

42

84

43

95

44

40

46

24

47

12

48

57

49

40

50

08

49

42

48

30

46

57

45

05

43

56

42

64

41

09

39

88

37

53

36

17

0

1000

2000

3000

4000

5000

6000

Jan

-07

Fe

b-0

7

Ma

r-0

7

Ap

r-0

7

Ma

y-0

7

Jun

-07

Jul-

07

Au

g-0

7

Se

p-0

7

Oct

-07

No

v-0

7

De

c-0

7

Jan

-08

Fe

b-0

8

Ma

r-0

8

Ap

r-0

8

Ma

y-0

8

Jun

-08

Jul-

08

Au

g-0

8

Se

p-0

8

Oct

-08

No

v-0

8

De

c-0

8

Jan

-09

Fe

b-0

9

Ma

r-0

9

Ap

r-0

9

Ma

y-0

9

Jun

-09

Jul-

09

Au

g-0

9

Se

p-0

9

Oct

-09

No

v-0

9

De

c-0

9

Filed

Open

Productivity under Case GradingProductivity under Case Grading

Department of Fair Employment and HousingEmployment Cases Open by Month

Calendar Years: 2007 - 2009

3500

3850

4200

4550

4900

5250

2007

2008

2009

UCLA-RAND Policy StudyUCLA-RAND Policy Study

Invited UCLA-RAND Center for Law and Invited UCLA-RAND Center for Law and Public Policy invited to conduct a policy Public Policy invited to conduct a policy study of the FEHA. study of the FEHA.

Recommend a blueprint on advancing the Recommend a blueprint on advancing the FEHA for the next 50 years.FEHA for the next 50 years.

Provide the study to policymakers and all Provide the study to policymakers and all stakeholders.stakeholders.

UCLA-RAND FindingsUCLA-RAND FindingsEmployment Discrimination Complaints by Most Common Protected Categories

Yearear SexSex DisabilityDisability Race/ColorRace/Color National National OriginOrigin AgeAge

19971997 5,9195,919 2,2352,235 3,7353,735 1,5281,528 2,7092,709

19981998 5,8745,874 2,7282,728 3,8853,885 1,5221,522 2,4222,422

19991999 5,8165,816 2,8352,835 3,6033,603 1,5021,502 2,3692,369

20002000 5,3865,386 2,6262,626 3,3743,374 1,2751,275 2,4312,431

20012001 5,4115,411 3,0513,051 3,6793,679 1,3111,311 2,4102,410

20022002 5,6655,665 3,4043,404 3,5713,571 1,4041,404 2,4092,409

20032003 4,8624,862 3,4013,401 3,3003,300 1,1921,192 2,3742,374

20042004 4,2304,230 3,3553,355 2,5582,558 892892 2,3452,345

20052005 4,2074,207 3,4873,487 2,5512,551 922922 2,4462,446

20062006 3,7563,756 3,5153,515 2,1712,171 847847 2,2072,207

20072007 4,3274,327 3,6103,610 2,4632,463 707707 2,3322,332

20082008 4,5564,556 3,9253,925 2,9392,939 920920 2,8412,841

% % ChangeChange -23.0%-23.0% 75.6%75.6% -21.3%-21.3% -39.8%-39.8% 4.9%4.9%

UCLA-RAND StudyUCLA-RAND StudyPrimary Alleged Act: 1997-2008Primary Alleged Act: 1997-2008

Alleged Act %

Termination 49.9 Harassment 24.6

Failure to hire 4.4 Working conditions 3.9

Refusal to accommodate

3.8

Denied promotion/upgrade

3.4

Demotion 2.8 Unequal pay 1.7

All Other 5.2 Total 100

UCLA-RAND StudyUCLA-RAND StudyComplaints by Firm SizeComplaints 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%

100-499 57,309 27.2%

500-999 12,558 6.0%

1000-4999 26,822 12.7%

5000-9999 5,135 2.4%

10000-99999

8,718 4.1%

  210,996 100.0%

DFEH into the FutureDFEH into the Future

R.I.P.?R.I.P.?

Out of the MineshaftOut of the Mineshaft

Survive the budget crisis.Survive the budget crisis.

Maximize effectiveness and efficiency.Maximize effectiveness and efficiency.

Save jobs.Save jobs.

Cut space.Cut space.

Start new initiatives.Start new initiatives.

Conduct regulatory project in 2010.Conduct regulatory project in 2010.

DFEH RenaissanceDFEH Renaissance