A “secret policy” that lets California’s governor derail any discrimination case pursued against a state or local public agency is just one of the ways the state’s landmark civil rights agency has been crippled over time, according to a new government report (pdf).

The state Senate Office of Oversight and Outcomes (SOOO) said the Department of Fair Employment and Housing (DFEH) has been systematically deprived of the resources necessary to investigate the 20,000 new discrimination claims made to it each year. As a result, discrimination investigations are “too often cursory.”

The problem is becoming “more acute with each passing decade” and “top veterans of the department who spoke with the Senate Oversight Office believe that only a small fraction of the work required by law can actually be accomplished.” The department has one year to decide if a claim has merit and should be litigated if not settled.

DFEH is the largest civil rights agency in the nation. The department is an independent, quasi-judicial administration agency that investigates, mediates and prosecutes violations of the Fair Employment and Housing Act, the Disabled Persons Act, the Unruh Civil Rights Act and the Ralph Civil Rights Act.

The Oversight Office found the agency was underfunded, demoralized, had a crappy computer system and was in direct conflict with the federal government. “DFEH nearly destroyed a 19-year relationship with the Department of Housing and Urban Development [HUD] by directing necessary resources away from housing discrimination investigations,” the report says.

HUD found the department’s shabby case files made it “impossible to tell if the law had been violated” and threatened to cut its funding. HUD placed the department on a Performance Improvement Plan, one of just three housing agencies in the nation smacked like that.  

One policy in particular struck the Oversight Office as particularly egregious. The department eliminated face-to-face interviews and phone chats with people filing employment discrimination claims. Instead, the claimants were made to file online. These raw complaints were then served on employers. “The result is a flood of nonsensical, rambling complaints being served on perplexed employers.”

The Oversight Office was not completely surprised by the problems it found. Its investigation was preceded by a 2010 study it cites by UCLA Law School and Rand Corporation, which looked at 212,414 discrimination cases between 1997 and 2008 and determined DFEH was “unfair and ineffective.” That study reported, “We found sufficient reasons to be concerned that our antidiscrimination system may itself discriminate, perhaps against people in the very groups that it was designed to protect.”

Although many of the department’s deficiencies were previously known or suspected, the Oversight Office was surprised in June of this year when three former DFEH employees told investigators about how the agency had “compromised its independence” by quietly turning over claims against public agencies to the governor’s office for enforcement approval.

That would effectively give the governor veto power over a discrimination complaint against a state or local agency. A spokesman for the governor, Evan Westrup, told the San Jose Mercury News that the claim, and the report in general, was “deeply flawed”

The report said the secret rule, instituted in 2008 under Republican Governor Arnold Schwarzenegger, may be an “unlawful underground regulation.” The governor’s office disputes that, but even if legal, “this policy lacks transparency, and constitutes unequal treatment for public employees,” the report said.

The report expressed fears that the policy “creates the potential for abuse.” That potential may already have been realized.

“Since it [the policy] was instituted, formal accusations against public employers plummeted from 15 percent of the total to just 1 percent,” the report says.

–Ken Broder

To Learn More:

Report: Budget Cuts, “Secret Policy” Cripple State Civil Rights Agency (by Jessica Calefati, San Jose Mercury News)

Report Faults CA Governor's Office Policy for Chilling Discrimination Claims (by David Siders, Sacramento Bee)

Civil Rights Agency Underfunded, Hurt by Poor Policy, Study Finds (by Patrick McGreevy, Los Angeles Times)

Department of Fair Employment and Housing:Underfunding and Misguided Policies Compromise Civil Rights Mission (California Senate Office of Oversight and Outcomes) (pdf)