UCLA-RAND Center for Law & Public Policy

California Employment Discrimination Law and Its Enforcement: The Fair Employment and Housing Act at 50

UCLA-RAND Center for Law and Public Policy, 2010.

Gary Blasi and Joseph W. Doherty

CEN_RAN_PUB-FEHA-1
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2009 marked the 50th anniversary of the Fair Employment Practices Act, signed into law in 1959 by Governor Pat Brown after a decade of failed attempts to secure an equal employment opportunity law in California. This report describes and evaluates the effectiveness and efficiency of the successor of that law, the Fair Employment and Housing Act (hereafter, the FEHA) as it is actually enforced in California. We believe that changes over the past 50 years in both the nature of employment discrimination and our understanding of it are sufficiently dramatic that California policymakers should reconsider the assumptions underlying the law and their implications for reshaping the law.   Our contribution in that regard is primarily to identify some of those assumptions and how they depart from current scientific knowledge.   A large body of research in social psychology and the neurosciences challenges the central assumption of the FEHA -- that most discrimination is the product of individual, intentional action and can therefore be effectively deterred through imposing risk of economic penalties. To be sure, there remains a good deal of intentional discrimination that can and should be deterred. But a growing body of evidence indicates that discriminatory outcomes are now often the product of unintended actions on the part of actors who do not wish to discriminate and the structure of markets and institutions that perpetuate inequality, problems not as easily addressed through the mechanism of deterrence.

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