April 2009
A Department of Fair Employment and Housing
Presentation
FEHA 50th Anniversary:
Civil Rights Past, Present and Future
Presented by
Phyllis W. Cheng | Director
Department of Fair Employment and Housing
State of California |State and Consumer Services Agency
2218 Kausen Drive | Suite 100
Elk Grove | California | 95758
Telephone: 916.478.7251 | Fax: 916.478.7329
phyllis.cheng@dfeh.ca.gov | www.dfeh.ca.gov
California’s Civil Rights Agency
This powerPoint presentaton may be copied so long as credit is given to
the Department of Fair Employment and Housing.
Overview
 History of the FEHA
 The FEHA Today
 The DFEH
– Mission Statement
– Jurisdiction
– Summary of 2008 DFEH Cases
 The 50th Anniversary Celebration:
– Collaboration with Stakeholders
– Publications on FEHA Cases/Policies
– Studies: Blueprint for Future
– Renaissance: New Regulations
History of the FEHA:
Threatened March on Washington
 In 1941, civil rights leaders
Philip Randolph and Baynard
Rustin began to organize a
100,000 person march to
Washington to protest against
discrimination in the defense
industries.
 Californian Cottrell Laurence
“C. L.” Dellums, a leader of
the Brotherhood of Sleeping
Car Porters. was one of the
organizers.
Executive Order 8802
and the FEPC
 In 1941, to call off the March on
Washington, 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, with little power to
handle complaints, 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.
Early Efforts & March on Sacramento
 In 1945, 1949, 1951 and 1953,
California’s’ FEP bills sponsored
by Assemblymembers Augustus
Hawkins and Byron Rumford were
rejected.
 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 with hundreds to
point up the need for FEP
legislation.
Pioneers’ Continuing Struggle
 Despite repeated
defeats, the Cal
Committee continued to
press for FEP legislation
from 1953 to 1959.
 Leaders
– Assemblymember
Augustus Hawkins.
– Assemblymember Byron
Rumford.
– Labor leader C.L. Dellums.
The FEPA Adopted in 1959
 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.
Rumford Fair Housing Act
 Passage of the Rumford
Fair Housing Act
followed in 1963.
 The Act protected
Californians from
discrimination in the sale
and rental of housing
accommodations.
 Bases: race, color,
religion, national origin
and ancestry.
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; and the Fair
Employment and Housing
Commission (FEHC)
 The FEHC adjudicates these
claims and promulgates
regulations.
FEHA’s Protections Today
 FEHA Protections: discrimination, harassment,
Retaliation.
 Bases: age, ancestry, color, disability, family leave,
marital status, medical Condition, National Origin,
Race, Religion, Sex, Sexual Orientation.
 Remedies: hiring, back pay, promotion, reinstatement,
cease and desist orders, damages for emotional
distress, reasonable attorneys fees and costs, expert
witness fees, administrative fines and court ordered
punitive damages.
FEHA’s Legislative
Development
 Prudence Kay Poppink Act in 2000 amended the FEHA’s disability
protections, reaffirmed and strengthened California’s protections
for individuals with disabilities.
 Other notable legislative expansions:
– Making sexual harassers personally liable for their conduct.
– Mandating sexual harassment training for all California employers
with 50 or more employees.
– Requiring employers to reasonably accommodate pregnant
employees.
– Expanding FEHA’s protections to sexual orientation and “gender.”
– Adding employer liability for non-employee sexual harassment
where the employer is on notice.
FEHA’s Regulatory
Development
Fair Employment and Housing Commission regulations:
 Responsibilities of employers to train their managers
and supervisors in sexual harassment prevention
(2006).
 Commission procedures and hearing practices (1999).
 Protections for pregnant employees (1995).
 Employees’ rights of job-protected family and medical
leave under the California Family Rights Act (1995 &
1993).
Mission Statement
The mission of the Department
of Fair Employment and
Housing is to protect
Californians from
employment, housing and
public accommodation
discrimination, and hate
violence.
Jurisdiction
The DFEH enforces the Fair Employment
and Housing Act (FEHA), Unruh Civil
Rights Act, and Ralph Act.
The Department's jurisdiction extends to
individuals, private or public entities,
housing providers, and business
establishments within the State of
California.
DFEH’s Recent Innovations
Improve Delivery of Public Service
Vigorous Enforcement of the Law
Expand Outreach to Stakeholders
Provide Civil Rights Leadership
Improve Delivery of Public Service
Automated Appointment System
Automated Right-to-Sue System
– Important to complainants, the system
contains an explanation on the
administrative consequences of electing
private action
Telephone In-Takes
Grading System
Vigorous Enforcement of the
Law
 Where violations are found, the Department has
vigorously enforced the laws under our jurisdiction
 Consistent with our civil rights mission, DFEH is a leader
in advancing the development of the law and in
shaping public policy
– Director’s Complaints: High Impact and/or Underserved Cases
– Class Complaints: Multiple Complainants
– Co-Counsel with Other Agencies: EEOC, ALRB, US DOJ
– Special Investigations Unit: Systemic Discrimination
– Education: YouTube Videos, Curriculum, Lesson Plans
Expand Outreach to Stakeholders
Expanded the Department’s outreach to:
– Civil and human rights organizations
– Employee and employer groups
– Tenant and landlord representatives
– Plaintiffs’ and defense bars
– Private and public sectors
– All stakeholders in our diverse state
Continue to provide technical assistance
and training to ensure full compliance
with the laws under our jurisdiction
Summary of 2008 DFEH Cases
California Department of Fair Employment and Housing
Calendar Year 2008
20,073 Cases Filed: by Law
Housing
Employment
18,785 Cases
92%
1,131 Cases
6%
Ralph
34 Cases
1%
Unruh
123 Cases
1%
2008 Employment Cases
California Department of Fair Employment and Housing
Calendar Year: 2008
Cases Filed: by Bases (18,785 Employment Cases)
Sex - Other Allegations, 2,289
Sex - Pregnancy
999
Sex - Orientation
821
Age - 40 or Over
3,655
Sex - Harassment
3,863
Association - Must be Used
with Another Basis
283
Retalitation
5,697
Disability - Mental and
Physical
6,844
Religion
579
Race/Color
4,208
Family Care
671
Other
2,607
Marital Status
300
National Origin/Ancestry
1,937
2008 Housing Cases
California Department of Fair Employment and Housing
Calendar Year: 2008
Cases Filed: by Bases* (1,131 Housing Cases)
Other
2 - .5%
National Origin/Ancestry, 113,
8%
Race/Color
267 - 19%
Marital Status
31 - 2%
Religion
24 - 2%
Retalitation
48 - 3%
Sex - Harassment
45 - 3%
Sex - Orientation 27 - 2%
Sex - Other Allegations
34 - 2%
Familial Status (Children), 203 14%
Sex - Pregnancy
5 - .5%
Source of Income
22 - 1.5%
Association - Must be Used with
Another Basis, 11, 1%
Disability - Mental and Physical
571 - 41%
2008 Accusations Filed
2008 ACCUSATIONS FILED BY DFEH BY PROTECTED BASIS [%]
Housing:Familial Status
22.78%
Employment:Age
1.27%
Housing:Disability
7.59%
Housing:Race
5.06%
Employment Sexual
Orientation
2.53%
Housing: Retaliation
2.53%
Employment: Retal.
2.78%
Public Acc.
1.04%
E:Disability
E:Sex/Harr.
E:Preg.
E:Race/N.O.
E:CFRA
E: Retal.
Employment:CFRA 3.80%
E: Sex/Or.
E:Age
H:Fam. St.
Employment:Race/Nat.Origin
6.33%
Employment:Disability
22.78%
H:Disability
H:Race
H: Retal.
Employment:Sex/Pregnancy
7.59%
Pub. Acc.
Employment:
Sex/Harrassment
13.92%
2008 Closing Categories
California Department of Fair Employment and Housing
Calendar Year 2008
Cases Closed: by Closing Category (All Laws, 19,540 Cases)
Adm inistrative Closures
1,633 Closed
8%
Insufficient Evidence
4,805 Closed
25%
Settlem ents
1,476 Closed
8%
Legal - Accusations/Civil
Com plaints
87 Closed
1%
Im m ediate Right-to-Sue
and Com plaints for Filing
Purposes Only
11,539 Closed
58%
2008 Settlements
California Department of Fair Employment and Housing
Calendar Year: 2008
Closed Cases: by Settlement Amount (960 cases, $9,565,226)
Pre Accusation
$7,291,862
Average per Case $8,120
(898 cases)
Post Accusation
$2,273,364
Average per Case $39,196
(58 cases)
DFEH 2008 Cases

Orange County apartment complex pays $618,000 to settle housing discrimination class
action.

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.

East Palo Alto apartment owners pay $25,000 to settle allege discrimination against African –
American males.

Napa landlords, accused of evicting woman for having too many children, agree to pay
$18,000 settlement.
th
50
The
Celebration:
Collaboration
Year-long plans to celebrate this historic
marker for the FEHA
In collaboration with stakeholders, sponsor
events throughout state to celebrate the
advancement of the law (www.dfeh.ca.gov):
• Civil rights community
• Unsung heroes
• Model employers, businesses and housing providers
• Plaintiff and defense bars, minority bars and neutrals
• Private and public sectors
• All branches and levels of government
Publications
Articles to commemorate the FEHA’s 50th Anniversary
(See www.dfeh.ca.gov)
 “Playing House at 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.
 “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 authored a review
of significant California Supreme Court employment decisions in
Bender’s California Labor & Employment Bulletin.
Termination Date
Romano v. Rockwell International ,Inc.
(1996) 14 Cal. 4th 479
Termination occurs on the date of actual
termination of employment, not on the
date the employee receives notice that
his employment will be terminated.
Continuing Violation
Richards v. CH2M Hill, Inc.
(2001) 26 Cal. 4th 798
The continuing violation doctrine
exception to the statute of limitations
applies to claims for failure to
accommodate a disability and disability
harassment under the FEHA.
Disability and Essential Functions of Job
Green v. State of California
(2007) 42 Cal. 4th 254
A plaintiff who cannot perform a job’s essential
functions because of a disability, even after
reasonable accommodation, is not qualified
and has no discrimination claim. The plaintiff
bears the burden of demonstrating that he or
she is qualified.
Sexual Harassment
Lyle v. Warner Brothers Television Productions
(2006) 38 Cal.4th 264
Adult comedy writers’ use of sexually explicit
language and gesturing in the presence of
their female assistant did not constitute
harassment within the meaning of the FEHA in
the context of the creative workplace.
Hostile Work Environment
Miller v. Dept. of Corrections
(2005) 36 Cal. 4th 446
An employee may establish sexual
harassment under the FEHA by demonstrating
that widespread sexual favoritism was severe
or pervasive enough to alter his or her working
conditions and create a hostile work
environment.
Strict Liability for Harassment
State Dept. of Health Services v. Sup. Ct.
(McGinnis) (2003) 31 Cal.4th 1026
Employers are strictly liable under the FEHA for
sexual harassment by their supervisory
employees. The Ellerth/Faragher defense to
liability applicable in Title VII harassment
cases does not apply to FEHA, although the
defense may be used to limit damages.
No Strict Liability for
Discrimination or Retaliation
Reno v. Baird (1998) 18 Cal.4th 640
Individual supervisors may be liable for
harassment but not discrimination.
Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158
Nonemployer individuals may not be held
personally liable under FEHA for their role in
retaliation,
New Developments
FEHA Housing Cases
 Limited FEHA housing case law has meant over
reliance on federal Fair Housing Amendments Act
(FHAA) to interpret the FEHA. Victims aggrieved under
FEHA’s broader protections can be impacted.
 FEHA employment decisions can be applied to
housing cases.
 New State Bar Fair Housing and Public
Accommodations Subsection will support the growth
of the FEHA fair housing practice.
Emotional Distress Damages
Konig v. Fair Employment and Housing Com.
(2002) 28 Cal.4th 743
The FEHC’s authority to award emotional
distress damages to housing
discrimination complainants did not
violate the judicial powers clause.
Marital Status Discrimination
Smith v. Fair Employment & Housing Com.
(1996) 12 Cal.4th 1143
The FEHA's prohibition against discrimination
because of marital status would not
“substantially burden” a landlord's religious
exercise within meaning of Religious Freedom
Restoration Act or violate the landlord's rights
under the State Constitution's free exercise and
enjoyment of religion clause so as to exempt
landlord from the FEHA.
Source of Income
Discrimination
Sisemore v. Master Financial, Inc.
(2007) 151 Cal.App.4th 1386
The Sixth District Court of Appeal held that a
day care operator stated a viable claim for
intentional source of income discrimination in
violation of the FEHA
Housing discrimination claim under FEHA may
be founded on a disparate impact theory.
Fair housing organization was aggrieved
person with standing to sue under the FEHA.
Companion Animal
Auburn Woods I Homeowners Ass'n v. Fair
Employment and Housing Com.
(2004) 121 Cal.App.4th 1578
The Third District Court of Appeal upheld the
FEHC’s determination that a homeowners’
association had discriminated against
condominium residents, a married couple who
suffered from depression and other disorders,
in failing to reasonably accommodate their
disabilities by permitting them to keep a small
companion dog.
Writ of Administrative Mandate
Fair Employment and Housing Com. v. Superior
Court (Las Brisas Apartment, Ltd.)
(2004) 115 Cal.App.4th 629
the Second District Court of Appeal, Division
Two, held that a writ of administrative mandate
challenging the FEHC’s finding of liability
against a landlord for race and familial status
discrimination must be challenged within 30
days.
Group Housing
Broadmoor San Clemente Homeowners
Assn. v. Nelson
(1994) 25 Cal.App.4th 1
The Sixth District Court of Appeal held
the FEHA protects against unlawful
discriminatory restrictions in group
housing.
Studies:
Planning the Next 50 Years
 Conduct studies to take measure of the Act’s
accomplishments, its gaps, and to recommend
policies for the future
 Invite academic and research institutions to study the
FEHA
– UCLA Law School-RAND Study
– Loyola Law School Study
 Provide the studies to policymakers and all
stakeholders
 Recommend a blueprint on advancing the FEHA for
the next 50 years
The Act’s Renaissance
Issue DFEH Administrative Regulations in
2010
– Scope: intake to issuance of accusation
– Hold hearings statewide
– Invite public comments and testimony
– File with Office of Administrative Law
– Promulgate as new sections in California
Code of Regulations
Collaborate with Us
www.dfeh.ca.gov