California Code of Regulations › Title 2 - Administration › Division 4.1 - Civil Rights Department › Chapter 1 - Procedures of the Civil Rights Department › Subchapter 2 - Housing Discrimination Complaints › Section 10049 - Julie Waltz First Amendment Policy

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) When a complainant seeks to file a
				  housing discrimination complaint against a person who is not an owner within
				  the meaning of section
				  12927(e)
				  of the Government Code, the department shall screen the complaint at intake to
				  determine whether it implicates protected First Amendment activity as described
				  by the United States Court of Appeals for the Ninth Circuit in
White v.
				  Lee
(9th Cir. 2000) 227 F.3d 1214 (
White
).
(b) Protected First Amendment activities
				  described in
White
include, but are not limited to, writing
				  and distributing signs, flyers, and newspapers or articles; engaging in
				  expressive associational activities that advocate discriminatory policies; and
				  petitioning the government for redress of grievances (e.g., filing of a lawsuit
				  that is not frivolous or participating in the political or legislative
				  process).
(c) Complaints that have
				  been deemed at intake to meet the criteria set forth in paragraphs (a) and (b)
				  above shall be referred to the chief counsel of the department's legal
				  division, or a designated associate or assistant chief counsel, to confirm
				  whether the criteria have been met and, if so, determine whether a complaint
				  should be taken under the department's First Amendment policy.
(d) If the chief counsel or a designated
				  associate or assistant chief counsel accepts the complaint for investigation,
				  then the chief counsel or designated associate or assistant chief counsel shall
				  draft the complaint. The complaint shall only include the specific allegations
				  that are appropriately subject to the department's investigation under this
				  policy.
(e) When a complaint is
				  accepted for investigation under the department's First Amendment policy, legal
				  advice shall be provided by the chief counsel of the department's legal
				  division, or a designated associate or assistant chief counsel, regarding the
				  proper scope of the department's investigation. Such legal advice shall include
				  the following three topics:
(1) Scope of
				  Investigation: The investigation shall be limited in a manner that would permit
				  the department to properly investigate the complaint, but not violate the
				  respondent's First Amendment rights. The chief counsel or chief counsel's
				  designated associate or assistant chief counsel shall provide guidance to
				  department staff on how the specific allegations in the complaint should be
				  investigated. The investigation shall not be overbroad, but instead shall focus
				  on the specific allegations that were approved for an investigation under this
				  policy. In providing this guidance, the chief counsel or a designated associate
				  or assistant chief counsel shall be mindful that activities such as
				  distributing flyers and newsletters, lobbying public officials, and petitioning
				  the government are protected by the First Amendment. On the other hand, acts of
				  violence, threats, or intimidation may constitute unlawful housing
				  discrimination that is not protected by the First Amendment. The investigation
				  shall focus on the specific allegations that might prove a FEHA
				  violation.
(2) Communications: The
				  chief counsel or the chief counsel's designated associate or assistant chief
				  counsel shall advise department staff that when communicating with a
				  respondent, the media, or member of the public regarding an investigation under
				  this policy, department representatives shall make clear that protected First
				  Amendment activities do not, by themselves, constitute a violation of the
				  FEHA.
(3) Length of Investigation:
				  The chief counsel or a designated associate or assistant chief counsel shall
				  advise department staff on the proper length of the investigation. The
				  department shall strive to complete investigations under this policy within
				  one-hundred (100) days. Any investigation under this policy shall be completed
				  as expeditiously as possible, and may not exceed one-hundred (100) days without
				  the express approval of either the chief counsel or the chief counsel's
				  designated associate or assistant chief counsel. Under no circumstances may an
				  investigation under this policy exceed one-hundred-eighty (180)
				  days.