Cheng on Sweeping Changes to FEHA Enforcement to Come in 2013

SUMMARY: On June 27, 2012, Governor Edmund G. Brown, Jr., signed into law Senate Bill 1038, a trailer bill to the 2012-13 State Budget, which will make sweeping changes to enforcing the California Fair Employment and Housing Act. This Emerging Issues Analysis discusses these changes and offers practical advice.

EXCERPT:  On June 27, 2012, Governor Edmund G. Brown, Jr., signed into law Senate Bill 1038, a trailer bill to the 2012-13 State Budget, which will make sweeping changes to enforcing the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA) effective January 1, 2013. (See 2012 Reg. Sess., ch. 46, 2012 Cal. Stat, 18, 27-66, 68, 70, 101 &115.)

To eliminate duplication and maximize efficiency, Senate Bill 1038 will modernize and take enforcement of the FEHA to a new level by

  • Eliminating the Fair Employment and Housing Commission (Commission) effective January 1, 2013.
  • Saving taxpayers $391,000 in 2012-13 and $784,000 in 2013-14 and ongoing.
  • Creating within the Department of Fair Employment and Housing (DFEH or Department) the Fair Employment and Housing Council (Council), with seven members to be appointed by the Governor and confirmed by the Senate, and staffed and funded by the DFEH, to promulgate regulations. The DFEH Director will serve as a nonvoting ex officio member of the Council.
  • Allowing the Department to file cases directly in court. Prior to filing a civil action, the Department will require all parties to undergo mandatory dispute resolution in the Department's internal dispute resolution division free of charge to the parties.
  • Authorizing courts to award the Department reasonable attorney's fees and costs, including expert witness fees. The DFEH will use the Attorney General's $170/hour rate as its fee basis.
  • Creating a special fund for the deposit of awarded attorney fees and litigation costs, to be appropriated by the Legislature to offset the costs of the Department. 

In light of these changes, the practitioner should be alert to regulatory, litigation, dispute resolution, and transitional issues on current and future FEHA cases.

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