BILL NUMBER: AB 2707ENROLLED BILL TEXT PASSED THE SENATE AUGUST 15, 2016 PASSED THE ASSEMBLY AUGUST 22, 2016 AMENDED IN SENATE AUGUST 4, 2016 AMENDED IN ASSEMBLY APRIL 26, 2016 AMENDED IN ASSEMBLY APRIL 11, 2016 INTRODUCED BY Assembly Member Ridley-Thomas (Coauthor: Assembly Member Wilk) FEBRUARY 19, 2016 An act to add Section 51.14 to the Civil Code, and to amend Section 12930 of the Government Code, relating to civil rights. LEGISLATIVE COUNSEL'S DIGEST AB 2707, Ridley-Thomas. Stop Consumer Racial Profiling Act of 2016. Existing law, the Unruh Civil Rights Act, states that all persons within 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, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging a violation of the act. This bill would enact the Stop Consumer Racial Profiling Act of 2016, which would prohibit a business establishment from using consumer racial profiling, as defined. The bill would also make the Department of Fair Employment and Housing responsible for the enforcement of the act. This bill would incorporate additional changes to Section 12930 of the Government Code, proposed by SB 1442, to be operative only if SB 1442 and this bill are both chaptered and become effective on or before January 1, 2017, and this bill is chaptered last. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 51.14 is added to the Civil Code, to read: 51.14. (a) This act shall be known, and may be cited, as the Stop Consumer Racial Profiling Act of 2016. (b) No business establishment shall use consumer racial profiling. (c) For purposes of this section, "consumer racial profiling" shall mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers. "Consumer racial profiling" includes, but is not limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity. SEC. 2. Section 12930 of the Government Code, as amended by Chapter 63 of the Statutes of 2016, is amended to read: 12930. The department shall have the following functions, powers, and duties: (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, 51.14, 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. (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 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 good will 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, 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 any Section 1094.5 Code of Civil Procedure challenge to a decision of the former Fair Employment and Housing Commission pending on or after January 1, 2013, the director or his or her designee shall consult with the Attorney General regarding the defense of that writ petition. SEC. 2.5. Section 12930 of the Government Code, as amended by Chapter 63 of the Statutes of 2016, is amended to read: 12930. The department shall have the following functions, powers, and duties: (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, 51.14, 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. (A) Nothing in this part prevents the director or his or her authorized representative, in his or her 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 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 good will 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, 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 any Section 1094.5 Code of Civil Procedure challenge to a decision of the former Fair Employment and Housing Commission pending on or after January 1, 2013, the director or his or her designee shall consult with the Attorney General regarding the defense of that writ petition. SEC. 3. Section 2.5 of this bill incorporates amendments to Section 12930 of the Government Code proposed by both this bill and SB 1442. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, (2) each bill amends Section 12930 of the Government Code, and (3) this bill is enacted after SB 1442, in which case Section 2 of this bill shall not become operative.