Bill Text: CA SB807 | 2021-2022 | Regular Session | Chaptered
Bill Title: Enforcement of civil rights: Department of Fair Employment and Housing.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2021-09-23 - Chaptered by Secretary of State. Chapter 278, Statutes of 2021. [SB807 Detail]
Download: California-2021-SB807-Chaptered.html
Senate Bill
No. 807
CHAPTER 278
An act to amend Sections 12930, 12946, 12960, 12961, 12962, 12963.5, 12965, 12981, and 12989.1 of the Government Code, relating to civil rights.
[
Approved by
Governor
September 23, 2021.
Filed with
Secretary of State
September 23, 2021.
]
LEGISLATIVE COUNSEL'S DIGEST
SB 807, Wieckowski.
Enforcement of civil rights: Department of Fair Employment and Housing.
Existing law establishes various civil rights, and authorizes a person denied one of those rights and, for certain rights, specified state and local law enforcement agencies to bring a civil action to enforce that right within a specified amount of time.
Existing law, the California Fair Employment and Housing Act (FEHA), establishes the Department of Fair Employment and Housing (DFEH) within the Business, Consumer Services, and Housing Agency under the direction of the Director of Fair Employment and Housing to enforce civil rights laws with respect to housing and employment and to protect and safeguard the right of all persons to obtain and hold employment without discrimination based on specified characteristics or status. The FEHA makes certain discriminatory employment and housing practices unlawful, and authorizes a person claiming to be
aggrieved by an alleged unlawful practice to file a verified complaint with the DFEH. The FEHA requires the DFEH to make an investigation in connection with a filed complaint alleging facts sufficient to constitute a violation of the FEHA, and requires the DFEH to endeavor to eliminate the unlawful practice by conference, conciliation, and persuasion. If conference, conciliation, mediation, or persuasion fails and the DFEH has required all parties to participate in a mandatory dispute resolution, as specified, the FEHA authorizes the director to bring a civil action in the name of the DFEH on behalf of the person claiming to be aggrieved within a specified amount of time.
This bill would toll the deadline for the DFEH to file a civil action pursuant to the FEHA while a mandatory or voluntary dispute resolution is pending.
Under this bill, when a complaint is filed with DFEH for an alleged violation of certain laws, the time
for complainants to file their own civil actions under those provisions would be tolled until either the DFEH files a civil action or one year after the DFEH issues written notice to the complainant that it has closed its investigation and elected not to file a civil action. The bill would apply this tolling retroactively, but would specify that the provisions are not intended to revive claims that have already lapsed.
The FEHA prohibits an aggrieved person from commencing a civil action with respect to an alleged discriminatory housing practice that forms the basis of a civil action brought by the DFEH.
This bill would remove that prohibition.
The FEHA requires a civil action for specified unlawful practices to be brought in a county in which the 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. The FEHA authorizes the action to be brought in the county of the defendant’s resident or principal office.
This bill, instead, would require the action to be brought in a county in which the practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, 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, in the county of the defendant’s residence or principal office, or, if the civil action includes class or group allegations on behalf of the department, in any county in the state.
If the DFEH does not bring a civil action for certain
unlawful employment practices 150 days after the filing of a complaint or determines that it will not bring a civil action, the FEHA requires the DFEH to notify the person claiming to be aggrieved, indicating that person may bring a civil action pursuant to the FEHA.
This bill, for a complaint treated as a group or class complaint, as specified, would instead require the department to issue a right-to-sue notice upon completion of its investigation, and not later than 2 years after the filing of the complaint.
The FEHA makes it an unlawful practice for a person to deny or to aid, incite, or conspire in the denial of certain civil rights, including those protected by a cause of action for sexual harassment that occurs as part of a professional relationship. Existing law prohibits a program or activity that is conducted, operated, or administered by the state or by a state agency, is funded directly by the state, or receives
financial assistance from the state from unlawfully denying a person the full and equal access to the benefits of, or unlawfully discriminating against a person under, that program or activity, on the basis of specified characteristics. Existing law prohibits an employer from paying any of its employees at wage rates less than the rates paid to employees of the opposite sex or of another race or ethnicity for substantially similar work, as specified. Existing law authorizes an employee who receives less than the required wage to commence a civil action no later than 2 years after the cause of action occurs, unless the cause of action arose out of a willful violation, in which case the employee is authorized to commence no later than 3 years after the cause of action occurs. Existing law makes human trafficking, as defined, a crime, and authorizes a victim of human trafficking to bring a civil action for specified relief and remedies within 7 years of the date that the trafficking victim was freed from the
trafficking situation or, if the victim was a minor when the act of human trafficking against the victim occurred, within 10 years after the date the plaintiff attains the age of majority. Under the FEHA, the DFEH is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging violations of those civil rights and laws, as specified.
The FEHA prohibits filing a complaint with the DFEH alleging certain civil rights violations one year after the unlawful practice or refusal to cooperate occurred. The FEHA prohibits filing a complaint alleging any other unlawful practice, including a sexual harassment claim that occurs as part of a professional relationship, 3 years after the unlawful practice or refusal to cooperate occurred. Under the FEHA, the amount of time within which to file a complaint is extended under certain circumstances, including for one year from the date that a person allegedly aggrieved by an unlawful practice
attains the age of majority.
This bill, instead, would subject the filing of a complaint with the DFEH alleging sexual harassment that occurred as part of a professional relationship to the one-year limitation, and would subject the filing of a complaint alleging a violation of the above-described prohibition on unlawful discrimination by a state program or activity to the 3-year limitation. The bill, instead, would prohibit the filing of a complaint alleging a violation of the above-described wage discrimination laws after the expiration of the applicable period for commencing a civil action pursuant to those wage discrimination laws. Under this bill, filing a complaint with the DFEH alleging human trafficking would be subject to the same time limitations, and extensions of those time limitations, as those imposed on a civil action for human trafficking.
The FEHA requires the department or private counsel of the claimant,
as specified, to serve a filed complaint either personally or by certified mail with return receipt requested upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice.
This bill would additionally authorize the complaint to be served electronically, as specified. The bill would also authorize service by leaving a copy of the complaint at the office or usual mailing address of the person or entity being served, followed by mailing a copy to that place by first-class mail, as specified. The bill would also authorize service by sending by first-class mail or airmail to that person or entity a copy of the complaint, 2 copies of a certain notice and acknowledgment of receipt, and a prepaid postage envelope addressed to the sender, followed by execution and return of a written acknowledgment of receipt to the sender. The bill would also authorize service by any means specified in the Code of Civil Procedure.
The FEHA requires certain employers, labor organizations, and employment agencies to maintain specified employment-related records and files for at least 2 years and authorizes the department to seek judicial relief to enforce these retainer provisions. The FEHA exempts the State Personnel Board from the 2-year retention requirement and requires the board instead to maintain the records and files for one year.
This bill would increase the above-described records and files retention requirement from 2 years to 4 years and would delete the exemption of the State Personnel Board, thus requiring the board to retain these records for 4 years.
The FEHA grants the DFEH specified enforcement powers, including the power to petition the superior courts to compel compliance with investigations of the DFEH pursuant to certain employment or housing discrimination complaints, as specified.
Existing law requires the Director of DFEH to consult with the Attorney General regarding the defense of a writ petition to a decision of the former Fair Employment and Housing Commission for specified challenges pending on or after January 1, 2013.
This bill would make a nonsubstantive change to the requirement that the Director of DFEH consult with the Attorney General.
The FEHA permits
filing these petitions in any county in which the department’s investigation or inquiry takes place, but if the respondent to a complaint is not found within any such county, the petition may be brought in the county of the respondent’s residence or principal office. The FEHA provides that a superior court order on these petitions is final and not subject to review by appeal, but authorizes a party aggrieved by the order to serve and file in the appropriate court of appeal a petition for a writ of mandamus to compel the court to set aside or otherwise modify its order. The FEHA provides specific procedures regarding the stay of an order following the filing of a petition for a writ of mandamus.
This bill would permit filing these petitions either in a county in which the department’s investigation or inquiry takes place or in the county of the respondent’s residence or principal office. The bill would also subject a superior court order on these petitions to
immediate review by appeal, and permit an aggrieved party to serve and file a notice of appeal within 15 days after the service of the superior court’s order. The bill would require the appeal to have precedence in the court to which the appeal is taken. The bill would also authorize a court to award reasonable attorney’s fees and costs, including expert witness fees, to a prevailing party, including the department, for these petitions and appeals. The bill, however, would only authorize attorney’s fees and costs recovery for a prevailing respondent if the court finds the petition or appeal was frivolous, unreasonable, or without merit when brought, or the petitioner continued to litigate after it clearly became so.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 12930 of the Government Code is amended to read:12930.
The department shall have the following functions, duties, and powers:(a) To establish and maintain a principal office and any other offices within the state as are necessary to carry out the purposes of this part.
(b) To meet and function at any place within the state.
(c) To appoint attorneys, investigators, conciliators, mediators, and other employees as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
(d) To obtain upon request and utilize the services of
all governmental departments and agencies and, in addition, with
respect to housing discrimination, of conciliation councils.
(e) To adopt, promulgate, amend, and rescind suitable procedural rules and regulations to carry out the investigation, prosecution, and dispute resolution functions and duties of the department pursuant to this part.
(f) (1) To receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to Chapter 6 (commencing with Section 12940).
(2) To receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of Section 51, 51.5, 51.7, 51.9, 54, 54.1, or 54.2 of the Civil Code. The remedies and procedures of this part shall be independent of any other remedy or
procedure that might apply.
(3) To receive, investigate, conciliate, mediate, and prosecute complaints alleging, and to bring civil actions pursuant to Section 52.5 of the Civil Code for, a violation of Section 236.1 of the Penal Code. Damages awarded in any action brought by the department pursuant to Section 52.5 of the Civil Code shall be awarded to the person harmed by the violation of Section 236.1 of the Penal Code. Costs and attorney’s fees awarded in any action brought by the department pursuant to Section 52.5 of the Civil Code shall be awarded to the department. The remedies and procedures of this part shall be independent of any other remedy or procedure that might apply.
(4) To receive, investigate, conciliate, mediate, and prosecute complaints alleging
practices made unlawful pursuant to Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1, except for complaints relating to educational equity brought under Chapter 2 (commencing with Section 200) of Part 1 of Division 1 of Title 1 of the Education Code and investigated pursuant to the procedures set forth in Subchapter 5.1 of Title 5 of the California Code of Regulations, and not otherwise within the jurisdiction of the department.
(5) To receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to Section 1197.5 of the Labor Code. The department shall, in coordination with the Division of Labor Standards Enforcement within the Department of Industrial Relations, adopt procedures to ensure that the departments coordinate activities to enforce Section 1197.5 of the Labor
Code.
(A) Nothing in this part prevents the director or the director’s authorized representative, in that person’s discretion, from making, signing, and filing a complaint pursuant to Section 12960 or 12961 alleging practices made unlawful under Section 11135.
(B) Remedies available to the department in conciliating, mediating, and prosecuting complaints alleging these practices are the same as those available to the department in conciliating, mediating, and prosecuting complaints alleging violations of Article 1 (commencing with Section 12940) of Chapter 6.
(g) In connection with any matter under investigation or in question before the department pursuant to a complaint filed under Section 12960, 12961, or 12980:
(1) To issue subpoenas to require the attendance and testimony of witnesses and the production of books, records, documents, and physical materials.
(2) To administer oaths, examine witnesses under oath and take evidence, and take depositions and affidavits.
(3) To issue written interrogatories.
(4) To request the production for inspection and copying of books, records, documents, and physical materials.
(5) To petition the superior courts to compel the appearance and testimony of witnesses, the production of books, records, documents, and physical materials, and the answering of interrogatories.
(h) To bring civil actions pursuant to Section 12965 or 12981 of this code, or Title VII of the Civil Rights Act of 1964 (Public Law 88-352; 42 U.S.C. Sec. 2000 et seq.), as amended, the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. 12101, et seq.), as amended, or the federal Fair Housing Act (42 U.S.C. Sec. 3601 et seq.), and to prosecute those civil actions before state and federal trial courts.
(i) To issue those publications and those results of investigations and research as in its judgment will tend to promote goodwill and minimize or eliminate discrimination in employment on the bases enumerated in this part and discrimination in housing because of race, religious creed, color, sex, gender, gender identity, gender expression, marital status,
national origin, ancestry, familial status, disability, veteran or military status, genetic information, or sexual orientation.
(j) To investigate, approve, certify, decertify, monitor, and enforce nondiscrimination programs proposed by a contractor to be engaged in pursuant to Section 12990.
(k) To render annually to the Governor and to the Legislature a written report of its activities and of its recommendations.
(l) To conduct mediations at any time after a complaint is filed pursuant to Section 12960, 12961, or 12980. The department may end mediation at any time.
(m) The following shall apply with respect to any accusation pending before the former
Fair Employment and Housing Commission on or after January 1, 2013:
(1) If an accusation issued under former Section 12965 includes a prayer either for damages for emotional injuries as a component of actual damages, or for administrative fines, or both, or if an accusation is amended for the purpose of adding a prayer either
for damages for emotional injuries as a component of actual damages, or for administrative fines, or both, with the consent of the party accused of engaging in unlawful practices, the department may withdraw an accusation and bring a civil action in superior court.
(2) If an accusation was issued under former Section 12981, with the consent of the aggrieved party filing the complaint, an aggrieved person on whose behalf a complaint is filed, or the party accused of engaging in unlawful practices, the department may withdraw the accusation and bring a civil action in superior court.
(3) Where removal to court is not feasible, the department shall retain the services of the Office of Administrative Hearings to adjudicate the administrative action pursuant to Sections
11370.3 and 11502.
(n) On a challenge, pursuant to Section 1094.5 of the Code of Civil Procedure, to a decision of the former Fair Employment and Housing Commission pending on or after January 1, 2013, the director or the director’s designee shall consult with the Attorney General regarding the defense of that writ petition.
SEC. 2.
Section 12946 of the Government Code is amended to read:12946.
(a) It shall be an unlawful practice for employers, labor organizations, and employment agencies subject to the provisions of this part to fail to maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum period of four years after the records and files are initially created or received, or for employers to fail to retain personnel files of applicants or terminated employees for a minimum period of four years after the date of the employment action taken.(b) Upon notice that a verified complaint against it has been filed under this part, any such employer, labor organization, or employment agency shall maintain
and preserve any and all records and files until the later of the following:
(1) The first date after the period of time for filing a civil action has expired.
(2) The first date after the complaint has been fully and finally disposed of and all administrative proceedings, civil actions, appeals, or related proceedings have terminated.
(c) The council shall adopt suitable rules, regulations, and standards to carry out the purposes of this section.
(d) Where necessary, the department, pursuant to its powers under Section 12974, may seek temporary or preliminary judicial relief to enforce this section.
SEC. 3.
Section 12960 of the Government Code is amended to read:12960.
(a) This article governs the procedure for the prevention and elimination of practices made unlawful pursuant to Article 1 (commencing with Section 12940) of Chapter 6.(b) For purposes of this section, filing a complaint means filing an intake form with the department and the operative date of the verified complaint relates back to the filing of the intake form.
(c) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed
the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or the director’s authorized representative may in like manner, on that person’s own motion, make, sign, and file a complaint.
(d) Any employer whose employees, or some of them, refuse or threaten to refuse to cooperate with this part may file with the department a verified complaint asking for assistance by conciliation or other remedial action.
(e) (1) A complaint alleging a violation of Section 51, 51.5, 51.7, 54, 54.1, or 54.2 of the Civil Code shall not be filed pursuant to this article after the expiration of one year from the date that the alleged unlawful practice or refusal to cooperate
occurred.
(2) A complaint alleging a violation of Section 52.5 of the Civil Code shall not be filed pursuant to this article after the expiration of the applicable period of time for commencing a civil action pursuant to that section.
(3) A complaint alleging a violation of Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 shall not be filed pursuant to this article after the expiration of three years from the date that the alleged unlawful practice occurred or refusal to cooperate occurred.
(4) A complaint alleging a violation of Section 1197.5 of the Labor Code shall not be filed pursuant to this article after the expiration of the applicable period of time for commencing a civil action pursuant
to that section.
(5) A complaint alleging a violation of Section 51.9 of the Civil Code or any other violation of Article 1 (commencing with Section 12940) of Chapter 6 shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.
(6) Notwithstanding paragraphs (1) through (5), inclusive, the filing periods set forth by this section may be extended as follows:
(A) For a period of time not to exceed 90 days following the expiration of the applicable filing deadline, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice during the 90 days following the expiration of the applicable
filing deadline.
(B) For a period of time not to exceed one year following a rebutted presumption of the identity of the person’s employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.
(C) For a period of time, not to exceed one year from the date the person aggrieved by an alleged violation of Section 51.7 of the Civil Code becomes aware of the identity of a person liable for the alleged violation, but in no case exceeding three years from the date of the alleged violation if during that period the aggrieved person is unaware of the identity of any person liable for the alleged violation.
(D) For a period of
time not to exceed one year from the date that a person allegedly aggrieved by an unlawful practice attains the age of majority.
(E) For the periods of time specified in Section 52.5 of the Civil Code for complaints alleging a violation of that section.
(f) (1) Notwithstanding any tolling or limitations period under any other law, the time for a complainant to file a civil action under a statute referenced in this section shall be tolled during the period commencing with the filing of a complaint with the department for an alleged violation of that statute until either of the following:
(A) The department files a civil action for the alleged violation under this part.
(B) One year after the department issues written notice to a complainant that it has closed its investigation without electing to file a civil action for the alleged violation.
(2) The tolling provided under this subdivision shall apply retroactively.
(3) This subdivision is not intended to revive claims that have already lapsed.
SEC. 4.
Section 12961 of the Government Code is amended to read:12961.
(a) If an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group or class of persons of which the aggrieved person filing the complaint is a member, or if the unlawful practice raises questions of law or fact which are common to such a group or class, the aggrieved person or the director may file the complaint on behalf and as representative of such a group or class.(b) (1) A complaint filed pursuant to subdivision (a) may be investigated as a group or class complaint.
(2) If in the judgment of the director circumstances warrant, a complaint investigated as a group or
class complaint pursuant to paragraph (1) shall be treated as a group or class complaint for purposes of conciliation, dispute resolution, or civil action.
(3) The director shall communicate in writing their determination to treat a complaint as a group or class complaint pursuant to paragraph (2) 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.
SEC. 5.
Section 12962 of the Government Code is amended to read:12962.
(a) The department shall cause any verified complaint filed for investigation under the provisions of this part to be served upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of in any of the following ways:(1) In the manner specified in Section 415.20 of the Code of Civil Procedure.
(2) In the manner specified in Section 415.30 of the Code of Civil Procedure.
(3) In the manner specified in Section 1010.6 of the Code of Civil Procedure.
(4) In any other manner specified in the Code of Civil Procedure.
(5) Personally.
(6) By certified mail with return receipt requested.
(b) Notwithstanding subdivision (a), if a person claiming to be aggrieved by an alleged unlawful practice hires or retains private counsel for purposes of representation of the claim, the private counsel, and not the department, shall cause the verified complaint filed under the provisions of this part to be served upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice in any of the following ways:
(1) In the manner specified in Section 415.20 of the Code of Civil
Procedure.
(2) In the manner specified in Section 415.30 of the Code of Civil Procedure.
(3) In the manner specified in Section 1010.6 of the Code of Civil Procedure.
(4) In any other manner specified in the Code of Civil Procedure.
(5) Personally.
(6) By certified mail with return receipt requested.
(c) Service shall be made at the time of initial contact with the person, employer, labor organization, or employment agency or the agents thereof, or within 60 days, whichever first occurs. At the discretion of the director, the complaint may
not contain the name of the complaining party unless the complaint is filed by the director or the director’s authorized representative.
SEC. 6.
Section 12963.5 of the Government Code is amended to read:12963.5.
(a) The superior courts shall have jurisdiction to compel the attendance and testimony of witnesses, the production of books, records, documents, and physical materials, and the answering of interrogatories. 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 objecting thereto, or by obstructing any proceeding before the department, the department may file with a superior court a petition for an order compelling compliance, naming as respondent the individual or organization that has failed to comply. Such an action may be brought in any county in which the department’s investigation or inquiry takes place, or in the county of the respondent’s residence or principal office.(b) The petition shall describe the inquiry or investigation before the department, the basis for its jurisdiction therein, and state facts showing that the subpoena, interrogatory, request for production, or examination under oath was issued or carried out in accordance with the requirements of this part, that the information sought was identified with sufficient particularity to permit response and is reasonably relevant to the inquiry or investigation before the department, and that the respondent has failed to comply. If the petition sets forth good cause for relief, the court shall issue an order to show cause to the respondent; otherwise the court shall enter an order denying the petition. The order to show cause shall be served, along with the department’s petition, on the respondent in
the same manner as summons must be served in civil actions, and the order shall be returnable not less than 10 days from its issuance nor later than 45 days after the filing of the petition. The respondent shall have the right to serve and file a written answer or other response to the petition and order to show cause.
(c) Unless otherwise stipulated by the parties, the court shall no later than 30 days after the filing of the petition file its order granting or denying the petition. However, the court may on its own motion for good cause extend such time an additional 30 days. If the order grants the petition in whole or part, the order shall set forth the manner in which the respondent shall comply and the period of time following the effective date of the order within
which such compliance is required. A copy of the order shall be served by mail by the clerk upon the parties. If the order grants the petition in whole or in part, the order shall not become effective until 10 days after it is served. If the order denies the petition, it shall become effective on the date it is served.
(d) The order of the superior court is immediately appealable in the court of appeal. A party aggrieved by such order, or any part thereof, may within 15 days after the service of the superior court’s order, serve and file a notice of appeal. The appeal shall have precedence in the court to which the appeal is taken and shall be determined as soon as practicable after the notice of appeal is filed.
(e) (1) A court, in its
discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, in a petition, including appeals, brought pursuant to this section.
(2) Notwithstanding Section 998 of the Code of Civil Procedure, a prevailing respondent shall not be awarded fees and costs pursuant to paragraph (1) unless the court finds the petition or appeal was frivolous, unreasonable, or without merit when brought, or the petitioner continued to litigate after it clearly became so.
(f) Within 15 days after the end of the compliance period specified in the order of the superior court, after the exhaustion of any challenges to the order in higher courts, the department shall in writing certify to the court either that the order has been complied
with or that the respondent has failed to comply. A copy of the certified statement shall be served on the respondent by personal delivery or certified mail. After receipt of a certified statement indicating the respondent’s failure to comply with the order, the court may compel obedience to its order by contempt proceedings, and by making such additional orders as may be appropriate. Following such proceedings, the department shall, within 15 days after the respondent complies with the original order of the court, certify in writing to the court that such order has been complied with. A copy of the certified statement shall be served on the respondent by personal delivery or certified mail.
(g) The period of time within which the department is directed to initiate a civil action by Section 12965 shall be extended by the length of the period
between the filing of a petition under this section and either (1) the final effective date, after the exhaustion of any challenges to the original order in higher courts, of an order of the superior court denying the petition, or (2) the filing by the department of a certified statement, pursuant to subdivision (e), indicating the respondent’s compliance with the order of the superior court granting the petition in whole or in part, whichever occurs later.
SEC. 7.
Section 12965 of the Government Code is amended to read:12965.
(a) (1) 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 the director’s discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved.(2) 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.
(3) In a
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 that person’s own counsel.
(4) A civil action under this subdivision shall be brought in a county in which the department has an office, in a 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, 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, in the county of the
defendant’s residence or principal office, or, if the civil action includes class or group allegations on behalf of the department, in any county in the state.
(5) (A) A 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.
(B) For a 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.
(C) For a complaint other than those specified in subparagraphs (A) and (B), a civil action shall be brought, if at
all, within one year after the filing of a complaint.
(D) The deadlines specified in subparagraphs (A), (B), and (C), shall be tolled during a mandatory or voluntary dispute resolution proceeding commencing on the date the department refers the case to its dispute resolution division and ending on the date the department’s dispute resolution division closes its mediation record and returns the case to the division that referred it.
(b) For purposes of this section, filing a complaint means filing a verified complaint.
(c) (1) (A) Except as specified in subparagraph (B), if a civil action is not brought by the department pursuant to subdivision (a) within 150 days after the
filing of a complaint, or if the department earlier determines that no civil action will be brought pursuant to subdivision (a), the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue 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.
(B) For a complaint treated as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to subdivision (b) of Section 12961, the department shall issue a right-to-sue notice upon completion of its investigation, and not later than two years after the filing of the complaint.
(C) The notices specified in subparagraphs (A) and (B) 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.
(D) This paragraph applies only to complaints alleging unlawful employment practices under Article 1 (commencing with Section 12940) of Chapter 6.
(2) 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.
(3) The superior courts of the State of California shall have jurisdiction of actions brought pursuant to this section, 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.
(4) 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.
(5) A civil action brought pursuant to this section shall not be filed as class actions and shall not be maintained as class actions by the person or persons claiming to be aggrieved if 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.
(6) In civil actions brought under this section, the court, in its
discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.
(d) 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 subdivision (c), 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.
(e) (1) Notwithstanding subdivision (c), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the department 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.
(B) The investigation of the charge is deferred by the department 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 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, 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 (c), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the department, 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.
(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, 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, whichever is later.
SEC. 8.
Section 12981 of the Government Code is amended to read:12981.
(a) (1) In the case of failure to eliminate a violation of Section 12955, 12955.1, or 12955.7 that has occurred, or is about to occur, through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director shall bring a civil action in the name of the department on behalf of the aggrieved person as a real party in interest, notwithstanding Section 12971, in the same manner and with the same powers as provided in Section 12965, except that where the provisions of this article provide greater rights and remedies to an aggrieved person than Section 12965, the provisions of this article shall prevail.(2) Prior to
filing a civil action pursuant to paragraph (1), the department shall require all parties to participate in the department’s mandatory dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation.
(3) A civil action brought pursuant to paragraph (1) shall be filed within 100 days after the filing of a complaint unless it is impracticable to do so. This deadline to file a civil action pursuant to paragraph (1) shall be tolled during a mandatory or voluntary dispute resolution proceeding commencing on the date the department refers the case to its dispute resolution division and ending on the date the department’s dispute resolution division closes its mediation record and returns the case to the division that referred it.
(4) The civil action shall be filed 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 that practice are maintained and administered, or in the county in which the aggrieved person would have resided in the housing accommodation. If the defendant is not found within that county, the action may be filed in the county of the defendant’s residence or principal office. Any aggrieved person may intervene as a matter of right in the proceeding, and the appeal or other judicial review of that proceeding.
(b) If the department determines that an allegation concerns the legality of any zoning or other land use law or ordinance, the department or the Attorney General shall take appropriate action with respect to the complaint according to the
procedures established in this part for other complaints of housing discrimination.
(c) Within one year of the effective date of every final order or decision issued pursuant to this part, the department shall conduct a compliance review to determine whether the order or decision has been fully obeyed and implemented.
(d) Whenever the department has reasonable cause to believe that a respondent has breached a conciliation agreement signed by the department, the department shall initiate a civil action to enforce the agreement.
SEC. 9.
Section 12989.1 of the Government Code is amended to read:12989.1.
(a) An aggrieved person may commence a civil action in an appropriate court not later than two years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into, whichever occurs last, to obtain appropriate relief with respect to the discriminatory housing practice or breach. The computation of the two-year period shall not include any time during which an administrative proceeding under this part was pending with respect to a complaint under this part based upon the discriminatory housing practice or breach.(b) An aggrieved person may commence a civil action whether or not a complaint has been
filed under this part and without regard to the status of any complaint. Any aggrieved person who is aggrieved with respect to the issues to be determined in a civil action filed under this part, may intervene in that civil action. However, if the department has obtained a conciliation agreement with the consent of an aggrieved person, no action may be filed under this part by the aggrieved person with respect to the alleged discriminatory housing practice that forms the basis for the complaint, except for the purpose of enforcing the terms of the agreement.
