"How effective is the Department of Labor Standards Enforcement at protecting our rights under AB2601?"

By Chuck Stewart, Ph.D.

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Edge, v. 341, p. 30, August 7, 1996.

On September 25, 1992, Governor Wilson signed into law AB2601 with became effective January 1, 1993. The law included sexual orientation as a class protected under the Labor Codes 1101 and 1102. During the intervening three years, a total of 464 sexual orientation discrimination complaints have been filed with the Department of Labor Standards Enforcement (DLSE). How effective has DLSE been at protecting the rights of lesbians and gays in the workplace?
Of the total complaints filed, 102 are still open and pending. When asked the average length of time required to finish a complaint or the average length of time for the still pending cases, the agency did not know. I, myself, have a complaint still pending after almost two years. This is contrary to the goals of AB2601 for expeditious investigations and settlements so as to protect the livelihood of lesbians and gays.
Of the 362 cases disposed within the first three years, 143 (40%) were dismissed, 98 (27%) were abandoned, 97 (24%) were withdrawn and 34 (9%) were settled in favor for the complainant.
I tried to obtain more information about these cases from DLSE. I wanted to know why 91% of the complaints were either abandoned, dismissed or withdrawn. Of the people I spoke to at DLSE, none of them had answers nor did they plan on reviewing the cases or follow-up to determine if there is a pattern to these unsuccessful complaints. I directly asked if there is a quality control process in place to assure the highest level of legal enforcement. This seemed to perplex the directors with whom I spoke. With great pride, they emphasized that there are now 6 full-time investigators on the staff of DLSE which cover all labor law disputes, not just sexual orientation discrimination complaints.
What about the 34 complainants who prevailed? Did they keep their jobs? Did they get back pay? Did they win damages? DLSE had no answers for me, but said the files are available for inspection in San Francisco.
Are you shocked by these numbers, by the low number of complaints that are successful? It takes a very gutsy or very angry lesbian or gay to file a complaint against her/his employer in the first place; and yet, only 9% were found to be valid! I find this to be incredible. Of equal importance is how AB2601 is being interpreted? As with any legislation, litigation helps to define what the law actually means. Both the successful and unsuccessful complaints help clarify AB2601. I asked DLSE about recent interpretations of AB2601 such as what does it mean to be "openly " gay as specified in the Attorney General's opinion about the labor codes but they had no answers.
AB2601 is turning out to be what many legal analyst predicted; a bone to placate the gay community's call for equal protection, yet toothless when faced with actually protecting our rights. Governor Wilson was crafty in signing AB2601 into law. It cooled the violent protest following his veto of AB101, and handed the enforcement of the law into an ineffective agency.
DLSE needs to be held accountable for their dismal record at protecting the rights of lesbians and gays. This letter is a rallying-call to all lesbians and gays to demand a through review of DLSE and to start formal investigations. Lesbian and gay legal organizations, activists organizations, and publications need to form a team to investigate DLSE. Each complaint needs to be reviewed to discover why DLSE is dismissing or abandoning so many. The case law surrounding AB2601 needs to be made public so that lesbians and gays may better understand when their rights are being denied and to clarify the responsibilities of employers to provide a safe, homophobic and heterosexist free environment.
I hope you feel as I do that this is a very important issue. AB2601 is our only legal recourse in cases of employment discrimination and leaving it in state hands without oversight by our community will only continue to perpetrated the very discriminations the law is designed to prevent. Please become part of the DLSE Oversight Team by your active participation and financial support.