The Dismantling of the Fair Employment and Housing Commission

From State Senator Sheila Kuehl:
This is my sixth essay for 2007 and I’m departing from my essays on the 2007-08 Budget to write about the plan to dismantle the enforcement abilities of the Fair Employment and Housing Commission by the Schwarzenegger administration. As you read this essay, the Commission is scheduled to meet to approve a comprehensive and destructive plan put forth by Secretary of Consumer Affairs Rosario Marin.

Visit my website at www.sen.ca.gov/kuehl to read my previous essays. For those of you who received this essay by forwarding, it is written by California State Senator Sheila Kuehl. If you wish to subscribe to receive these essays on a continuing basis, (no charge), please send an e-mail to Sheila.Kuehl@sen.ca.gov, titled “subscribe”.

Enforcement of all State Civil Rights Laws
The Commission is entrusted with the enforcement of all the various civil rights laws in the state. Employees, renters, home buyers, and consumers of all types are protected against discrimination in several of California’s statutes. These laws are nothing but empty shells without the enforcement provided by the opportunity to go to the Fair Employment and Housing Commission for enforcement. Cases filed with the Commission are heard by a panel of Administrative Law Judges (ALJs) specifically trained and assigned for these duties.

Moving the Commission Staff and Doing Away With Judges
Secretary Marin has decided, in order to save such a miniscule amount of money it would be referred to as “budget dust”, to move the Commission staff to Sacramento and do away with the cadre of ALJs who hear the cases. Instead, she will throw all these cases to the more general Office of Administrative Hearings (OAH), a catchall for the enforcement of all general laws.

Why This Change is Bad for Civil Rights Enforcement
A little history......in 1992, with the support of Pete Wilson’s administration, the Legislature specifically authorized the Commission to hire its own ALJs. This was done because the OAH, which had been hearing cases and which Secretary Marin and the Schwarzenegger administration want to put back in charge, had proven to be both uneconomical and inexpedient, not to mention highly ineffective, because the legal staff of the Fair Employment and Housing Commission had been required to revise and rewrite over 90% of all OAH decisions in this area as incorrect on both the law and Commission policy. At the time the Legislature found it shocking that hearing officers knew so little about the area and wrote such ill-informed opinions. One decision would have overruled the Commission’s own regulations. Another allowed an employer to ban all women from his workplace.

The Advent of ALJs for Civil Rights
After the establishment of specific ALJs for these cases, the Commission, over the years this has been in place, has approved 92% of all decisions. This has saved quite a bit of money over the years. During the current Administration, the staff of the Commission, including the legal staff, has been reduced every year, down to a little more than half of what it had been. Even so, the Commission has maintained its workload, as have the ALJs.

Dispute between Schwarzenegger Admin. and FEHC
Secretary Marin has made no secret of her animosity toward the Executive and Legal Affairs Secretary of the Commission, Ann M. Noel. Ms Noel’s major flaw has been her steady insistence on the enforcement of civil rights law, even in the face of great diminution of the staff. The Secretary attempted to replace Ms. Noel with a woman who couldn’t even answer the first question asked of her: “Do you know the difference between FEHA and the ADA?” Answer: “Well, I know one of them is federal.”

The Move is Contrary to Legislative Intent
The Legislature intended that civil rights enforcement be given a high priority and that the staff and ALJs be specifically trained for the adjudications. In moving the office to Sacramento, allegedly to give it more “oversight” and to “save money”, the Administration is dismantling civil rights enforcement in California. Eliminating Commission ALJs and returning to reliance on OAH is a substantial policy change, inefficient and contrary to legislative intent. The move and the diminution of staff would also controvert the goal of expedient drafting of regulations, given that drafting regulations is one of the functions of the ALJs, and there would be only one FEHC staff person available to do these tasks. The Secretary’s office has already overseen a good deal of foot dragging on regulations concerning sexual harassment and the workplace treatment of people with disabilities.

What to Do
A letter was sent to Secretary Marin signed by Senate Pro Temps Perata, Speaker Nunez, myself, and the chairs of Senate Judiciary Committee, Senate Labor Committee, Senate Budget Committee, Assembly Labor Committee, Assembly Judiciary Committee, Assembly Budget Committee, Latino Legislative Caucus, Legislative Black Caucus, API Legislative Caucus and the Legislative LGBT Caucus. So far, there has been no response. If you are concerned, email Secretary Rosario Marin at rmarin@scsa.ca.gov or the Governor’s Cabinet Secretary, Dan Dunmoyer at dan.dunmoyer@gov.ca.gov.