BILL NUMBER: SB 655	ENROLLED
	BILL TEXT

	PASSED THE SENATE  SEPTEMBER 12, 2013
	PASSED THE ASSEMBLY  SEPTEMBER 11, 2013
	AMENDED IN ASSEMBLY  SEPTEMBER 6, 2013
	AMENDED IN ASSEMBLY  AUGUST 6, 2013
	AMENDED IN SENATE  APRIL 15, 2013
	AMENDED IN SENATE  APRIL 1, 2013

INTRODUCED BY   Senator Wright

                        FEBRUARY 22, 2013

   An act to amend Section 12965 of, and to add Section 12940.5 to,
the Government Code, relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 655, Wright. Fair Employment and Housing Act: unlawful
practices.
   Existing law, the California Fair Employment and Housing Act,
protects and safeguards the right and opportunity of all persons to
seek, obtain, and hold employment, participate in a labor
organization, and participate in employment training or
apprenticeship programs without discrimination or abridgment on
account of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation. Existing law authorizes a
person claiming to be aggrieved by an alleged unlawful practice under
these provisions to file a complaint with the Department of Fair
Employment and Housing and authorizes the department to bring a civil
action on the behalf of the person in the case of a failure to
eliminate an unlawful practice under these provisions.
   This bill would provide that, in a claim of discrimination or
retaliation under these provisions, the person claiming to have been
aggrieved shall prevail if he or she has proven that a protected
characteristic or activity was a substantial motivating factor, as
defined, in the employment action or decision. If an employer pleads
and proves that it would have made the same employment action or
decision at the same time, without considering the protected
characteristic or activity, the remedies available to the employee
would be limited as specified. In addition, if an employer pleads and
proves that it would have made the same employment action or
decision at the same time without considering the protected
characteristic or activity, the bill would authorize injunctive
relief and attorney's and expert's fees against the employer and
would require a specified civil penalty to be paid by that employer
to the employee.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 12940.5 is added to the Government Code, to
read:
   12940.5.  (a) For purposes of a claim of discrimination or
retaliation under this article, the person claiming to be aggrieved
shall prevail if he or she has proven to the trier of fact that the
protected characteristic or activity was a substantial motivating
factor in the employment action or decision.
   (b) For purposes of this section, "substantial motivating factor"
means a factor that contributed to the employment action or decision.
It shall be more than a remote or trivial factor, but need not be
the only or main cause of the employment action or decision. Evidence
that the person claiming to be aggrieved had a protected
characteristic at the time of the employment action or decision is
not, by itself, sufficient proof that the protected characteristic
was a substantial motivating factor.
   (c) Once an individual proves a claim of discrimination or
retaliation under this article, if an employer pleads and proves that
it would have made the same employment action or decision at the
same time without considering the protected characteristic or
activity, the remedies available to the employee shall be limited to
the remedies provided in paragraph (2) of subdivision (b) of Section
12965.
  SEC. 2.  Section 12965 of the Government Code is amended to read:
   12965.  (a) In the case of failure to eliminate an unlawful
practice under this part through conference, conciliation, mediation,
or persuasion, or in advance thereof if circumstances warrant, the
director in his or her discretion may bring a civil action in the
name of the department on behalf of the person claiming to be
aggrieved. Prior to filing a civil action, the department shall
require all parties to participate in mandatory dispute resolution in
the department's internal dispute resolution division free of charge
to the parties in an effort to resolve the dispute without
litigation. In any civil action, the person claiming to be aggrieved
shall be the real party in interest and shall have the right to
participate as a party and be represented by his or her own counsel.
The civil action shall be brought in any county in which unlawful
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. If the
defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal
office.
   For any complaint treated by the director as a group or class
complaint for purposes of investigation, conciliation, mediation, or
civil action pursuant to Section 12961, a civil action shall be
brought, if at all, within two years after the filing of the
complaint. For any complaint alleging a violation of Section 51.7 of
the Civil Code, a civil action shall be brought, if at all, within
two years after the filing of the complaint. For all other
complaints, a civil action shall be brought, if at all, within one
year after the filing of a complaint. If the director determines,
pursuant to Section 12961, that a complaint investigated as a group
or class complaint under Section 12961 is to be treated as a group or
class complaint for purposes of conciliation, mediation, or civil
action as well, that determination shall be made and shall be
communicated in writing within one year after the filing of the
complaint to each person, employer, labor organization, employment
agency, or public entity alleged in the complaint to have committed
an unlawful practice.
   (b) (1) If a civil action is not brought by the department within
150 days after the filing of a complaint, or if the department
earlier determines that no civil action will be brought, the
department shall promptly notify, in writing, the person claiming to
be aggrieved that the department shall issue, on his or her request,
the right-to-sue notice. This notice shall indicate that the person
claiming to be aggrieved may bring a civil action under this part
against the person, employer, labor organization, or employment
agency named in the verified complaint within one year from the date
of that notice. If the person claiming to be aggrieved does not
request a right-to-sue notice, the department shall issue the notice
upon completion of its investigation, and not later than one year
after the filing of the complaint. A city, county, or district
attorney in a location having an enforcement unit established on or
before March 1, 1991, pursuant to a local ordinance enacted for the
purpose of prosecuting HIV/AIDS discrimination claims, acting on
behalf of any person claiming to be aggrieved due to HIV/AIDS
discrimination, may also bring a civil action under this part against
the person, employer, labor organization, or employment agency named
in the notice. The superior courts of the State of California shall
have jurisdiction of those actions, and the aggrieved person may file
in these courts. An action may be brought in any county in the state
in which the unlawful practice is alleged to have been committed, in
the county in which the records relevant to the practice are
maintained and administered, or in the county in which the aggrieved
person would have worked or would have had access to the public
accommodation but for the alleged unlawful practice, but if the
defendant is not found within any of these counties, an action may be
brought within the county of the defendant's residence or principal
office. A copy of any complaint filed pursuant to this part shall be
served on the principal offices of the department. The remedy for
failure to send a copy of a complaint is an order to do so. Those
actions may not be filed as class actions or may not be maintained as
class actions by the person or persons claiming to be aggrieved
where those persons have filed a civil class action in the federal
courts alleging a comparable claim of employment discrimination
against the same defendant or defendants.
   (2) In a civil action brought pursuant to this subdivision, if,
under subdivision (c) of Section 12940.5, an individual proves a
claim of discrimination or retaliation under this article, but an
employer pleads and proves that it would have made the same
employment action or decision at the same time without considering
the protected characteristic or activity, the employee shall not be
entitled to reinstatement, back pay, compensatory damages, or
declaratory relief. The employee may recover injunctive relief and
attorney's fees and costs, including expert witness fees, pursuant to
subdivision (d). The court shall also grant a statutory penalty of
up to twenty-five thousand dollars ($25,000) to be awarded directly
to the employee. This paragraph shall not affect the rights and
remedies provided under this section if an employer fails to plead
and prove that it would have made the same employment action or
decision at the same time without considering the protected
characteristic or activity.
   (c) A court may grant as relief in any action filed pursuant to
subdivision (a) any relief a court is empowered to grant in a civil
action brought pursuant to paragraph (1) of subdivision (b), in
addition to any other relief that, in the judgment of the court, will
effectuate the purpose of this part. This relief may include a
requirement that the employer conduct training for all employees,
supervisors, and management on the requirements of this part, the
rights and remedies of those who allege a violation of this part, and
the employer's internal grievance procedures. In addition, in order
to vindicate the purposes and policies of this part, a court may
assess against the defendant, if the civil complaint or amended civil
complaint so prays, a civil penalty of up to twenty-five thousand
dollars ($25,000) to be awarded to a person denied any right provided
for by Section 51.7 of the Civil Code, as an unlawful practice
prohibited under this part.
   (d) In a civil action brought under this section, the court may
award to the prevailing party, including the department, reasonable
attorney's fees and costs, including expert witness fees.
   (e) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
   (A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
   (B) The investigation of the charge is deferred by the Department
of Fair Employment and Housing to the Equal Employment Opportunity
Commission.
   (C) A right-to-sue notice is issued to the person claiming to be
aggrieved upon deferral of the charge by the Department of Fair
Employment and Housing to the Equal Employment Opportunity
Commission.
   (2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) expires when the federal
right-to-sue period to commence a civil action expires, or one year
from the date of the right-to-sue notice by the Department of Fair
Employment and Housing, whichever is later.
   (3) This subdivision is intended to codify the holding in Downs v.
Department of Water and Power of City of Los Angeles (1997) 58
Cal.App.4th 1093.
   (f) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
   (A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
   (B) The investigation of the charge is deferred by the Equal
Employment Opportunity Commission to the Department of Fair
Employment and Housing.
   (C) After investigation and determination by the Department of
Fair Employment and Housing, the Equal Employment Opportunity
Commission agrees to perform a substantial weight review of the
determination of the department or conducts its own investigation of
the claim filed by the aggrieved person.
   (2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) shall expire when the
federal right-to-sue period to commence a civil action expires, or
one year from the date of the right-to-sue notice by the Department
of Fair Employment and Housing, whichever is later.