Feha at 60: Looking Back, Looking Forward

• Citation: Vol. 33 No. 5
• Publication year: 2019
• Author: By Kevin Kish

FEHA at 60: Looking Back, Looking Forward

By Kevin Kish

Kevin Kish was appointed as Director of the California Department of Fair Employment and Housing (DFEH) in February 2015. DFEH is the largest state civil rights agency in the nation and is the institutional centerpiece of California's commitment to protecting its residents from unlawful discrimination in employment, housing, and public accommodations, and from hate violence and human trafficking.

I. INTRODUCTION

We are talking about men and women who have learned that there is a place, an inferior place, beyond which they and their children may not aspire. We are talking about children who learn to hate at an early age—to hate not only others but, even worse, themselves as well. There is a vast human cost here, an intolerable cost . . . Governor Edmund G. Brown, March 1, 1960.¹

It has been 60 years since the enactment of California's first statewide employment anti-discrimination statute, the Fair Employment Practices Act (the "FEPA"),² the predecessor to today's Fair Employment and Housing Act (the "FEHA").³ The California Legislature passed the FEPA in response to the urgent demands of the civil rights movement to secure civil rights for African-Americans, including in the workplace.⁴ Today it remains true that the workplace is a crucial site of inclusion, integration, and opportunity. It also remains true—now no less than ever—that discriminatory barriers to employment are also barriers to full participation in society. As one of the nation's broadest civil rights statutes, the FEHA is both a mechanism to vindicate rights and a legal lens through which we scrutinize the rapid demographic, technological, and economic transformations in our workplaces and our working lives. At this political and historical moment of federal retrenchment of civil rights, the FEHA's past, present and future merit a closer look.

II. LOOKING BACK

The Fair Employment Practices Commission (the "FEPC"), the predecessor agency to the Department of Fair Employment and Housing (the "DFEH"), which I now lead, published its first report on June 30, 1961. The FEPC was the enforcement agency created by the enactment of the FEPA, and had as its mission the enforcement of the new laws prohibiting discrimination in the workplace. The workplace anti-discrimination law enforced by the FEPC differed crucially in scope from today's law. Specifically, the 1959 law prohibited discrimination only based on race, religious creed, color, national origin, and ancestry.⁵ The forms of discrimination that are most commonly alleged in California today—based on disability, age and sex—were prohibited later.

Statistics from the first 15 months of the FEPA's existence (through December 1960) reflected the realities of workplace discrimination in the late 1950s and early 1960s. Of the 568 complaints and requests for investigation received by the FEPC during this time, 511, or 89%, were complaints of workplace discrimination based on race or color, of which almost all (502) alleged discrimination against black applicants and employees.⁶ Twenty-eight cases (or 5%) of the total, were based on national origin, almost all of which involved alleged discrimination against people with Spanish surnames.

Another 26 cases were based on creed, of which 19 involved Jewish applicants or employees, 3 involved Catholics, and 4 involved Protestants. Three retaliation cases were filed, all based on actions taken against employees who opposed discrimination against Jewish applicants in their workplaces. More than half of all the cases (57%) were based on a failure to hire. And 35 of the cases were complaints against unions or labor organizations for practices that included withholding of membership based on race.

The report's narrative case studies showcase the difficulties faced by job applicants and enforcement personnel in the early days of the FEPA. In many cases, the challenge of the early enforcement work was to convince employers to consider nonwhite applicants at all. In one case study, a large oil company refused to accept an application from a black man for an attendant position at a service station. After learning that the company's (unenforced) policy was to accept all applications from potential employees, but that there were no black service station attendants, "[t]he Commissioner in the case persuaded the company to accept the complainant's application...