Why the DFEH is the Why the DFEH is the Canary in a Mineshaft Canary in a Mineshaft for Civil Rights for Civil Rights Phyllis W. Cheng, Director Phyllis W. Cheng, Director Department of Fair Employment and Housing Department of Fair Employment and Housing State of California | State and Consumer Services Agency State of California | State and Consumer Services Agency
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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 |
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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.
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.
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.
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.
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.
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