California Department of Fair Employment and Housing
|California Department of Fair Employment and Housing|
|Headquarters||2218 Kausen Drive, Suite 100
Elk Grove, California 95758
|Agency executive||Phyllis W. Cheng, Director|
|Key documents||CA Fair Employment and Housing Act, Government Code section 12900, et seq.
Unruh Civil Rights Act, Civil Code section 51, et seq.
Ralph Civil Rights Act, Civil Code section 51.7
The California Department of Fair Employment and Housing is an agency of California state government charged with the protection of residents from employment, housing and public accommodation discrimination, and hate violence. It is the largest civil rights agency in the United States. It also provides representation to the victims of hate crimes. Originally a division within the Department of Industrial Relations, DFEH became a separate department in 1980. DFEH has a director who is appointed by the governor of California and maintains a total of five offices and five educational clinics throughout the state. Today, it is considered part of the California Business, Consumer Services, and Housing Agency.
The mission of the Department of Fair Employment and Housing (DFEH or Department) is to protect Californians from employment, housing and public accommodation discrimination, and hate violence.
The Department enforces California state laws that prohibit harassment, discrimination and retaliation employment, housing, and public accommodations and that provide for pregnancy leave and family and medical leave. The DFEH also accepts, investigates, mediates and prosecutes complaints alleging hate violence or threats of hate violence.
The DFEH enforces the following California civil rights law:
- Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
- Unruh Civil Rights Act (Civ. Code, § 51 et seq.).
- Ralph Civil Rights Act (Civ. Code, § 51.7).
- Disabled Persons Act (Civ. Code, § 54 et seq.).
The FEHA (Gov. Code, § 12900 et seq.) is one of the leading state civil rights law in the nation. In employment, the FEHA prohibits discrimination and harassment on the basis of age (40 and over), ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical leave, disability (mental and physical) including HIV and AIDS, gender, gender expression, gender identity, genetic information, marital status, medical condition (cancer and genetic characteristics), national origin, race, sex (including pregnancy, childbirth, breastfeeding, and medical conditions related to pregnancy, childbirth or breastfeeding) and sexual orientation. (Gov. Code, §§ 12926, 12940, 12945, 12945.2.) In additional to the prohibition against pregnancy discrimination afforded under Government Code section 12940, the FEHA also requires employers to provide a reasonable accommodation, transfer, or leave for up to four months to employees disabled by pregnancy, childbirth, or a related medical condition. (Gov. Code, § 12945.2, subd. (a).)
In housing, the Act provides protection from harassment and discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information. (Gov. Code, § 12955.)
The FEHA also bars retaliation against any person who has filed a complaint with the Department, participated in a Department investigation or opposed any activity prohibited by the Act. (Gov. Code, § 12940, subd. (h).)
Under the FEHA, the Department’s jurisdiction extends to individuals, private or public entities, housing providers, and business establishments within the State of California. The FEHA’s prohibitions against employment discrimination apply to employers with five or more employees. (Gov. Code, § 12926, subd. (d).) The prohibition against workplace harassment applies to employers with one or more employees. (Gov. Code, § 12945, subd. (j) (4) (A).)
Within the FEHA, the California Family Rights Acts (CFRA) allows an employee who has worked for at least 12 months, accrued a minimum of 1,250 hours during the preceding 12 months, and is employed at a worksite with 50 or more employees within 75 miles to take up to 12 work-weeks of protected leave. (Gov. Code, § 12945.2, subds. (a) & (b).) An eligible employee may take CFRA leave for his or her own serious health condition; to care for a parent, dependent child, or spouse with a serious health condition; or for care and bonding in connection with the birth, adoption, or placement of a child for foster care. (Gov. Code, § 12945.2, subd. (c).) An employer is required under the CFRA to reinstate the employee to the same or a comparable position upon the termination of the CFRA leave. (Gov. Code, § 12945.2, subd. (a).) Additionally, the CFRA expressly prohibits an employer from refusing to hire, discharging, suspending, or discriminating in any manner against an employee because the employee has requested CFRA leave, or has given information or testimony about his or her own or another employee’s CFRA leave. (Gov. Code, § 12945.2, subd. (l).)
Government Code section 12948 incorporates into the FEHA the Unruh Civil Rights Act (Civ. Code, § 51), the Ralph Civil Rights Act (Civ. Code, § 51.7), and the Disabled Persons Act (Civ. Code, § 54 et seq.). The Unruh Civil Rights Act provides that:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, § 51.)
The Ralph Civil Rights Act prohibits violence or threats of violence because of an individual’s actual or perceived of violence sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation or position in a labor dispute. (Civ. Code, § 51.7.) California’s Disabled Persons Act entitles all individuals with disabilities full and equal access to all places of public accommodation, amusement, or resort; medical facilities; common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances; private schools, hotels, lodging places, and other places to which the general public is invited. (Civ. Code, § 54.1.)
FEHA History and Development
On April 16, 1959, Governor Edmund G. “Pat” Brown, Sr., signed the Fair Employment Practices Act (FEPA), 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.
In 1963 the Legislature passed the Rumford Fair Housing Act, prohibiting housing discrimination in all rental properties of four or more units on the basis of race, color, religion, national origin and ancestry.
In 1980, Governor Edmund G. "Jerry" Brown, Jr., and the Legislature reorganized civil rights enforcement. The FEPA and the Rumford Fair Housing Act were combined and renamed the Fair Employment and Housing Act (FEHA), to protect Californians from both employment and housing discrimination.
The FEHA predates and provides broader protections than its federal counterparts, Title VII of the 1964 Civil Rights Act and the 1968 Fair Housing Act. Over the years, the FEHA has redressed civil rights violations faced by hundreds of thousands of Californians. Numerous decisions from the trial courts to the United States Supreme Court have affirmed the broad reach of the FEHA. Because of the Act, a vast number of employers and housing providers have changed their business practices to create a more level playing field for all Californians where they live and work.
Under the FEHA, the DFEH receives, investigates, mediates, conciliates, and prosecutes discrimination complaints on behalf of individuals and groups or classes of aggrieved persons. (Gov. Code, § 12930, subd. (f)(1).) The Department adopts, promulgates, amends, and rescinds procedural rules and regulations to carry out its investigation, prosecution, and dispute resolution functions and duties. (Gov. Code, § 12930, subd. (e).) Additionally, the Department investigates, approves, certifies, decertifies, monitors, and enforces state contractors’ compliance with California’s nondiscrimination laws. (Gov. Code, § 12930, subd. (j).)
Until December 31, 2012, the Fair Employment and Housing Commission adjudicated FEHA claims and promulgated regulations interpreting substantive rights under the FEHA. The Fair Employment and Housing Council, which replaces the separate Commission, exists within the Department, and promulgates regulations interpreting substantive rights under the FEHA.
Governor Edmund G. "Jerry" Brown, Jr., signed into law Senate Bill 1038 (Committee on Budget & Fiscal Review) (Stats. 2012, ch. 46, §§ 18, 27-66, 68, 70, 101 &115) on June 27, 2012. SB 1038 transformed the role of the DFEH and the enforcement of the FEHA. Effective January 1, 2013, among other changes, the bill amends the FEHA to: (1) eliminate the Fair Employment and Housing Commission and replace it with a Fair Employment and Housing Council within the Department; (2) transfer the Commission's regulatory function to the Department's Council; and (3) end administrative adjudication of FEHA claims.
SB 1038 specifically authorizes the DFEH to:
- File cases directly in state or federal court. (Gov. Code, §§ 12930, subd. (h); 12965, subd. (a); 12981, subd. (a).)
- Collect attorney fees and costs when the DFEH is the prevailing party in FEHA litigation. (Gov. Code, §§ 112965, subd. (b); 12989.2.)
- Prior to filing a civil action, require all parties to participate in mandatory dispute resolution in the DFEH’s internal Dispute Resolution Division, free of charge to the parties. (Gov. Code, §§ 12965, subd. (a); 12981, subd. (a).)
The DFEH is the State agency responsible for enforcing California’s civil rights laws and is the largest state civil rights agency in the nation. DFEH has five offices located in Elk Grove, Fremont, Fresno, Bakersfield, and Los Angeles. The Elk Grove office is designated as “headquarters” and is where the DFEH executive team works.
- Dispute Resolution
The DFEH also maintains a Special Investigations Unit, Office of Contract Compliance Programs, a Legislative and Regulatory Unit, a Media and Public Affairs Unit and a Public Records Act Request Response Unit.
DFEH Clinical Programs:
- DFEH-UC Irvine School of Law Civil Rights Clinic.
- DFEH-UCD Davis School of Law Employment Discrimination Program.
- DFEH-CSU Bakersfield Graduate School Civil Rights Clinic.
- DFEH-College of the Canyons Civil Rights Clinic.
- DFEH-Rio Hondo College Housing Rights Clinic.
- DFEH Civil Rights Graduate Fellowships (Graduate Legal Assistant Program).
DFEH Procedural Regulations:
- Effective October 7, 2011.
- Cal. Code Regs., tit. 2, §§ 10000-10066.
Any person claiming to be aggrieved by an alleged unlawful employment, public accommodation, or housing practice may file a verified complaint for investigation with the DFEH. (Gov. Code, §§ 12960, 12963, 12980.) Filing an administrative complaint with the DFEH within one year of an alleged unlawful practice (Gov. Code, § 12960, subd. (d)), and receipt of a right-to-sue (Gov. Code, § 12965, subd. (b)), are prerequisites to filing a private action for employment discrimination under the FEHA.
An aggrieved party may forgo having his or her employment discrimination complaint investigated by the DFEH and instead request an immediate right-to-sue from the Department. An immediate right-to-sue may be obtained from the DFEH online at www.dfeh.ca.gov. Only complainants represented by counsel are encouraged to obtain a right-to-sue online.
The DFEH has unilateral discovery rights during the investigative process, which permit the DFEH to issue subpoenas (Gov. Code, § 129603.1), serve written interrogatories and requests for production of documents (Gov. Code, §§ 12963.2, 12963.4) and depose witnesses (Gov. Code, § 129603.3).
If an individual or organization fails to comply with a subpoena, interrogatory, request for production, or examination under oath by refusing to respond fully or providing only objections, the DFEH may file a petition with a superior court for an order compelling compliance with the discovery, naming the individual or organization that failed to comply as the respondent. (Gov. Code, § 12963.5.) The period of time within which the Department may bring a civil action to prosecute a violator is extended by the length of time between the filing of the petition and the filing by the DFEH of a certified statement indicating the respondent's compliance with the court’s order compelling a response. (Gov. Code, §12963.5, subd. (f).)
In the case of failure to eliminate an unlawful practice through conference, conciliation, mediation, or persuasion, the DFEH may bring a civil action in the name of the Department on behalf of the person claiming to be aggrieved. (Gov. Code, §§ 12965, subd. (a); 12981, subd. (a).) Prior to filing a civil action, the Department must require all parties to participate in mandatory dispute resolution in the DFEH’s internal Dispute Resolution Division, free of charge to the parties, in an effort to resolve the dispute without litigation. (Id.) Dispute resolution is mandatory for all cause cases for which the DFEH will file a civil action. Mandatory dispute resolution is conducted behind a firewall by the DFEH’s attorney mediators.
In civil actions alleging employment or housing discrimination, the court, in its discretion, may award to the prevailing party, including the DFEH, reasonable attorney’s fees and costs, including expert witness fees. (Gov. Code, §§ 12965, subd. (b); 12989.2.) The DFEH uses the California Attorney General’s hourly rate as its fee basis.
- "DFEH: About". California Department of Fair Employment and Housing. 2010. Retrieved 19 May 2010.
- Cheng, Phyllis W. (2 August 2012). "Transformative year for civil rights in CA". Daily Journal. http://www.dfeh.ca.gov/res/docs/Publications/Articles/Transformative%20year%20for%20civil%20rights%20in%20CA%20PCheng%20DJ%208-2-12.pdf
- DFEH Organization Chart http://www.dfeh.ca.gov/res/docs/About/org%20chart%20%20new%201-1-13.pdf