Governor Jerry Brown has signed an equal justice law, Senate Bill 1442 “by Senator Carol Liu (D-La Canada Flintridge) – Discrimination: regulations and enforcement.”
The law directs the Department of Fair Employment and Housing (DFEH) to enforce equal justice and antidiscrimination provisions under existing law. The law prohibits discrimination based on sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation. The prohibition applies to any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.
Existing laws, including Government Code 11135, prohibit such discrimination, but state agencies and recipients of state financial assistance routinely do not comply with or enforce 11135 and its regulations. SB 1442 in part requires DFEH to enact regulations, ensure compliance and enforcement, and investigate violations under 11135.
The City Project looks forward to working with DFEH to implement SB 1442, and recommends the following concrete steps to support effective implementation:
- DFEH should prepare guidance documents on 11135 and its regulations to inform state agencies, recipients of state financial assistance, and the public about their obligations and rights, respectively. These documents can be patterned on the guidance that federal authorities provide to ensure compliance with and enforcement of parallel federal equal protection laws. The US Department of Justice, for example, publishes the Civil Rights Title VI Manual under parallel federal laws including Title VI and its regulations, and the President’s Order 12898 on environmental justice and health. The Federal Transit Administration provides best practice examples too.
- Each state agency should ensure compliance and enforcement through the many avenues they have available. This includes strategic planning, data collection, analyses, and publication, regulations and guidance documents, review of funding applications, contractual assurances of compliance, compulsory self-evaluations, compliance reviews, investigation of administrative complaints, full and fair public participation in the compliance and enforcement process, denial or termination of funding, and ultimately access to justice through the courts.
- DFEH should perform an audit to determine which agencies (1) have regulations against discrimination under existing law, and (2) have no regulations or the regulations are not current. (Cf. Cal. Code Regs. tit. 22, §§ 98304, 98305 (state agencies to submit regulations for review).)
- DFEH should perform an audit of which agencies have provided training to their employees and otherwise ensure that they know equal justice requirements. (Cf. Cal. Code Regs. tit. 22, §§ 98321 (each state agency to familiarize employees with the law).)
- DFEH should conduct audits to ensure each agency has procedures in place to inform the public of their equal justice rights, including a complaint process and other procedures to ensure compliance, enforcement, and public participation. (Cal. Code Regs. tit. 22, § 98326.)
- DFEH should audit which agencies and recipients have submitted compliance reports. (Cal. Code Regs. tit. 22, § 98310.)
- Each agency and recipient should post information on how to file a discrimination complaint, designate an employee to handle complaints, and do a compliance review, and require recipients to do the same.
- Each agency should gather and release data and information to analyze any funding disparities, as required under 98340: (1) the percentage of persons of a particular ethnic group identification, race, color, or national origin that receives benefits, services or financial assistance from a state administered or state supported program or activity, and (2) the amount of state support provided to each recipient. (Cal. Code Regs. 22, § 98340.)
- Each state agency should ensure compliance, enforcement, and equal protection under existing law.
- If necessary, DFEH, the attorney general, and advocates should persuade an agency to ensure compliance and enforcement through the courts.
We look forward to working with DFEH on civil rights and environmental justice priorities, including the following:
- Implementing a rights based framework that includes the following elements: Describe what you plan to do. Analyze benefits and burdens on all people. Include people of color and low income people in making decisions. Consider alternatives. Adopt an implementation plan to distribute benefits and burdens fairly, and avoid unjustified discriminatory impacts and intentional discrimination. The US Commission on Civil Rights provides parallel recommendations.
- Defining standards to measure progress and accountability by state agencies and recipients.
- Revising the CalEnviroScreen online mapping and analysis tool to include data on race, color, national origin, park and green space,and other salient factors in addition to health vulnerabilities and exposure to toxics and pollution. US EPA EJSCREEN‘s tool is a best practice to do this.
- Implementing coastal justice with the California Coastal Commission.
- Working with state, regional, county, and local park and recreation agencies on equal access to parks, recreation areas, beaches, rivers, trails, monuments, and deserts. The National Park Service, the US Army Corps of Engineers, and US Department of Housing and Urban Development provide best practice examples.
- Working with the California Department of Education to ensure quality physical education and physical fitness for all public school students.
- Climate justice and the fair distribution of carbon pricing and cap and trade benefits.
- Economic vitality, including local green jobs, diverse business enterprises, and housing affordable for all to avoid green displacement and gentrification.
- Working with the California Department of Health & Human Services to implement Health Equity in All Policies.
The law reorganizes various statutes regarding discrimination, removes the requirement that other agencies promulgate regulations, and requires regulations, investigation, compliance, and enforcement by DFEH. These prohibitions and sanctions are in addition to any others imposed by law.
African American Museum Sept. 30, 2016.
Thank you to our colleagues at ACLU of Northern California, Civil Rights Education and Enforcement Center (CREEC), Equal Justice Society, Western Center on Law and Poverty, Public Advocates, Disability Rights CA, California Coastal Protection Network, Azul, and Marianne Engelman Lado, Marc Brenman, and Dr. Michael Rodriguez.