"How effective is AB2601?"

By Chuck Stewart, Ph.D.

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Frontiers, September 1993, and

Edge Magazine, September 1993.

The signing of AB2601 by Governor Pete Wilson in September 25, 1992 was heralded as a significant piece of legislation for the protection of employees on the basis of sexual orientation. The bill codified the decisions in Gay Law Students vs. Pacific Telephone (1979) and Soroko vs. Dayton Hudson (1991) by extending Labor Department protection explicitly on sexual orientation. The new Labor Code 1102.1 included broader definitions of employment than the previous cases but it did exempt certain classes of employers small businesses (4 or less), religious associations and non-profit organizationsand is overall a more comprehensive law than the previous patchwork of legal decisions.

Before all the media hoopla surrounding the Soroko case and the subsequent directive by the State Attorney General (October 1991) to the Department of Labor Standards Enforcement (DLSE) to start accepting complaints against private employers, very few complaints were filed. Immediately after Soroko and up to the enactment of AB2601 on January 1, 1993, an avalanche of complaints were filed. Between October 1991 through to December 1992, a total of 126 complaints were filed with DLSE claiming discrimination based on sexual orientation. But what has been the results? Of these 126 complaints, 27% were withdrawn or abandoned, 13% were dismissed for lack of jurisdiction (this number is now 28% as of 7/30/93), and 14% reached a settlement between the parties. Of the complaints in which a DLSE decision was reached, 22% were found in favor of the Respondent and only 4% were found in favor of the Complainant.

Has the situation changed since the enactment of AB2601? For the period between January 1, 1993 through to June 22, 1993, 70 complaints were filed of which 13% were withdrawn or abandoned, 13% were dismissed for lack of jurisdiction, and 1% were settled between the parties. Of the complaints in which a DLSE decision was reached, 25% were found in favor of the Respondent and only 3% were found in favor of the Complainant.

Are you shocked? Two things we can conclude from these numbers. First, the DLSE goal of a quick decision so as to protect a person's employment is a sham. There are still 22% of the complaints filed between October 1991 through to December 1992 still pending. Likewise, 43% of the complaints filed this year are still pending. One of the primary goal of the new law was to help the government to intervene quickly between employee and employer disputes so as to protect the employees job. This has not happened. Second, of those complaints that DLSE actually mediated, only 3- or 4% are found in favor of the employee. Doesn't this seem absurdly low considering the terrible statistics on gay-bashing and other measures of discrimination against gays and lesbians? It would be interesting to see how these figures compare to EEOC complaints.

Overall, the success of DLSE in protecting gay and lesbian rights is abysmal. Not only are they unable to act swiftly to protect an employee, but finding only 3% of employer discrimination in favor of the complainant is ridiculous. Further, what happened to the other 55% who either withdrew their complaint or were unable to be served by DLSE? What outlets do they have? Did their employers threaten them to withdraw their claim? Were their complaints dismissed because they did not file within the absurdly short 30-day filing rule? Where do they go to file a complaint if the DLSE won't help? Private litigation is horrendously expensive and agencies such as ACLU or Lambda Defense are swamped and refuse most cases. No, having DLSE protect gays and lesbians through application of the Labor Code is not the answer. More comprehensive legislation is needed and better procedures implemented. Religious organizations and small businesses should not be exempt from the law and housing protections need to be included. A through study should be made of the 196 cases that have been processed by DLSE in the last two years. And importantly, the gay, lesbian and bisexual community needs to keep a watchful eye over DLSE to see that they protect our rights.

Chuck Stewart recently had a sexual orientation complaint dismissed after waiting for two years for DLSE to decide that the Labor Code prior to AB2601 did not protect government employees. HePh.D. from USC school of Education and works with Peace Officers Standards Training (POST) for evaluating the efficacy of cultural awareness training in police academies and has been the newsletter editor for the Los Angeles Unified School DistrictGay and Lesbian Education Commission.