Governor's Office Vetoing Discrimination Complaints By Public Employees

By Adams, Nye, Becht LLP
on December 27, 2013

DFEH Report.jpgA recent report by the California Senate Office of Oversight and Outcomes, sheds light on some serious deficits that threaten the effectiveness of California's Fair Employment and Housing Act (FEHA) goals and the agency employed with the responsibility of enforcing the FEHA's goals, the Department of Fair Employment and Housing (DFEH). Much of the Oversight committee's findings were not surprising. The DFEH has been underfunded. This has resulted in the elimination of in-person intakes/meetings with victims of discrimination or increasingly cursory investigations.

However, one finding was surprising and not well known until the Committee came out with the report. So it seems like there is a secret policy and practice where the Governor's office dictates whether the DFEH pursues any claim against a public agency.

According to the report, in 2008 Arnold Schwarzenegger, instituted this policy where the governor's office had to provide the okay for the DFEH in order to pursue any claims of discrimination by government employees against public agencies. Three former DFEH employees revealed this underground practice to Committee as this significantly compromised the DFEH's independence and prejudiced claims brought by any public employee.

What's the consequence? Since the policy was implemented in 2008, the number of formal discrimination complaints against public employers has declined from 15 percent to just 1 percent!

Whether this policy has legal authority is questioned by the Committee. The Committee recommends that the DFEH ignore the policy and "stop treating discrimination claims by public employees differently than private claims." If the DFEH fails to stop the policy, then the Committee, instead, recommends that 1) a regulation should be drafted codifying the practice and not treating claims by private or public employees any differently; and 2) the Governor's office should recuse itself from making any decisions impacting state agency claims to avoid any bias or at least the appearance of bias.

This policy is a clear indication of one of the significant problems in the enforcement mechanism of the DFEH. If not changed, the policy will continue to negatively impact public employees' ability to find recourse when discriminated or harassed. One thing that was clear is that change is necessary in order to continue to enforce FEHA's anti-discrimination goals. California has some of the greatest protections for the 18 million employees who may encounter discrimination and harassment on the job. But, as the Committee, points out the DFEH has been underfunded and despite its efforts to modernize and reform its strategies of enforcement, needs substantial reforms in order to meet the demands of those employees who require its assistance.