BILL NUMBER: AB 1599 CHAPTERED
BILL TEXT
CHAPTER 525
FILED WITH SECRETARY OF STATE SEPTEMBER 15, 2002
APPROVED BY GOVERNOR SEPTEMBER 13, 2002
PASSED THE ASSEMBLY AUGUST 29, 2002
PASSED THE SENATE AUGUST 27, 2002
AMENDED IN SENATE AUGUST 22, 2002
AMENDED IN ASSEMBLY JANUARY 18, 2002
AMENDED IN ASSEMBLY JULY 3, 2001
AMENDED IN ASSEMBLY APRIL 16, 2001
INTRODUCED BY Assembly Member Negrete McLeod
FEBRUARY 23, 2001
An act to amend Section 12940 of, to amend and renumber Section
12941.1 of, and to repeal Section 12941 of, the Government Code,
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1599, Negrete McLeod. Age discrimination in employment.
Existing provisions of the California Fair Employment and Housing
Act make it an unlawful employment practice for any employer to
refuse to hire or employ, or to discharge, dismiss, reduce, suspend,
or demote any individual over the age of 40 on the ground of age,
except where the law compels or provides for that action. Existing
law specifies that these provisions do not preclude bona fide
employment requirements or physical or medical examinations of
applicants and employees to determine fitness for the employment.
This bill would delete this existing law and would instead make it
an unlawful employment practice, subject to certain exceptions, for
an employer on the basis of a person's age to refuse to hire or
employ the person, to refuse to select the person for a training
program leading to employment, to bar or discharge the person from
employment or from a training program leading to employment, or to
discriminate against the person in compensation or in the terms,
conditions, or privileges of employment. In addition to exceptions,
among other things, for age restrictions in other laws and bona fide
occupational qualifications, the bill would specify that the bill
does not preclude promotions within existing staff, hiring or
promotion on the basis of experience and training, or hiring under
specified established recruiting programs. The bill would make
technical conforming changes.
Existing provisions of the act make it an unlawful employment
practice for a labor union to exclude, expel, or restrict membership,
to provide second class or segregated membership, to discriminate in
the election of officers, selection of staff, or to discriminate
against its members, any employer, or any person employed by an
employer on the basis of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, or sexual orientation. Existing
provisions of the act make it an unlawful employment practice for any
person to discriminate on any of these bases in the selection or
training or persons in any apprenticeship training program or other
training program leading to employment. Existing provisions of the
act make it an unlawful employment practice for any employer or
employment agency to have printed or circulated any publication, or
to make specified non-job-related inquiries, that express any
limitation, specification, or discrimination on any of these bases of
discrimination.
This bill would add age to the bases of discrimination
constituting these unlawful employment practices. The bill would,
however, specify that the act does not prohibit employers or
employment agencies from inquiring into the age of an applicant or
specifying age limitations where compelled or provided by law.
Existing provisions of the act make it an unlawful employment
practice for an employer or employment agency to print or circulate
or to cause to be printed or circulated any publication, or to make a
non-job-related inquiry, that expresses directly or indirectly any
limitation, specification, or discrimination as to race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, or sexual
orientation.
The bill would amend these provisions to add age as a prohibited
basis. The bill would specify that, where compelled or provided by
law, the act does not prohibit an employer or employment agency
either from making age inquiries of employment applicants or
specifying age limitations for employment. The bill would provide
that it is the intent of the Legislature to clarify existing law and
reject the interpretation given to the law in Esberg v. Union Oil
Company of California.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12940 of the Government Code is amended to
read:
12940. It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United States
or the State of California:
(a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, or sexual orientation of
any person, to refuse to hire or employ the person or to refuse to
select the person for a training program leading to employment, or to
bar or to discharge the person from employment or from a training
program leading to employment, or to discriminate against the person
in compensation or in terms, conditions, or privileges of employment.
(1) This part does not prohibit an employer from refusing to hire
or discharging an employee with a physical or mental disability, or
subject an employer to any legal liability resulting from the refusal
to employ or the discharge of an employee with a physical or mental
disability, where the employee, because of his or her physical or
mental disability, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those duties
in a manner that would not endanger his or her health or safety or
the health or safety of others even with reasonable accommodations.
(2) This part does not prohibit an employer from refusing to hire
or discharging an employee who, because of the employee's medical
condition, is unable to perform his or her essential duties even with
reasonable accommodations, or cannot perform those duties in a
manner that would not endanger the employee's health or safety or the
health or safety of others even with reasonable accommodations.
Nothing in this part shall subject an employer to any legal liability
resulting from the refusal to employ or the discharge of an employee
who, because of the employee's medical condition, is unable to
perform his or her essential duties, or cannot perform those duties
in a manner that would not endanger the employee's health or safety
or the health or safety of others even with reasonable
accommodations.
(3) Nothing in this part relating to discrimination on account of
marital status shall do either of the following:
(A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.
(B) Prohibit bona fide health plans from providing additional or
greater benefits to employees with dependents than to those employees
without or with fewer dependents.
(4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam era veterans.
(5) Nothing in this part prohibits an employer from refusing to
employ an individual because of his or her age if the law compels or
provides for that refusal. Promotions within the existing staff,
hiring or promotion on the basis of experience and training, rehiring
on the basis of seniority and prior service with the employer, or
hiring under an established recruiting program from high schools,
colleges, universities, or trade schools do not, in and of
themselves, constitute unlawful employment practices.
(b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, or sexual
orientation of any person, to exclude, expel or restrict from its
membership the person, or to provide only second-class or segregated
membership or to discriminate against any person because of the race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
sex, age, or sexual orientation of the person in the election of
officers of the labor organization or in the selection of the labor
organization's staff or to discriminate in any way against any of its
members or against any employer or against any person employed by an
employer.
(c) For any person to discriminate against any person in the
selection or training of that person in any apprenticeship training
program or any other training program leading to employment because
of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital
status, sex, age, or sexual orientation of the person discriminated
against.
(d) For any employer or employment agency to print or circulate or
cause to be printed or circulated any publication, or to make any
non-job-related inquiry of an employee or applicant, either verbal or
through use of an application form, that expresses, directly or
indirectly, any limitation, specification, or discrimination as to
race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
sex, age, or sexual orientation, or any intent to make any such
limitation, specification or discrimination. Nothing in this part
prohibits an employer or employment agency from inquiring into the
age of an applicant, or from specifying age limitations, where the
law compels or provides for that action.
(e) (1) Except as provided in paragraph (2) or (3), for any
employer or employment agency to require any medical or psychological
examination of an applicant, to make any medical or psychological
inquiry of an applicant, to make any inquiry whether an applicant has
a mental disability or physical disability or medical condition, or
to make any inquiry regarding the nature or severity of a physical
disability, mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may inquire into the ability of an applicant to perform
job-related functions and may respond to an applicant's request for
reasonable accommodation.
(3) Notwithstanding paragraph (1), an employer or employment
agency may require a medical or psychological examination or make a
medical or psychological inquiry of a job applicant after an
employment offer has been made but prior to the commencement of
employment duties, provided that the examination or inquiry is
job-related and consistent with business necessity and that all
entering employees in the same job classification are subject to the
same examination or inquiry.
(f) (1) Except as provided in paragraph (2), for any employer or
employment agency to require any medical or psychological examination
of an employee, to make any medical or psychological inquiry of an
employee, to make any inquiry whether an employee has a mental
disability, physical disability, or medical condition, or to make any
inquiry regarding the nature or severity of a physical disability,
mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may require any examinations or inquiries that it can show to
be job-related and consistent with business necessity. An employer
or employment agency may conduct voluntary medical examinations,
including voluntary medical histories, which are part of an employee
health program available to employees at that worksite.
(g) For any employer, labor organization, or employment agency to
harass, discharge, expel, or otherwise discriminate against any
person because the person has made a report pursuant to Section
11161.8 of the Penal Code that prohibits retaliation against hospital
employees who report suspected patient abuse by health facilities or
community care facilities.
(h) For any employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(i) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts forbidden under this part, or to attempt to
do so.
(j) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading to
employment, or any other person, because of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, or sexual
orientation, to harass an employee, an applicant, or a person
providing services pursuant to a contract. Harassment of an
employee, an applicant, or a person providing services pursuant to a
contract by an employee other than an agent or supervisor shall be
unlawful if the entity, or its agents or supervisors, knows or should
have known of this conduct and fails to take immediate and
appropriate corrective action. An entity shall take all reasonable
steps to prevent harassment from occurring. Loss of tangible job
benefits shall not be necessary in order to establish harassment.
(2) The provisions of this subdivision are declaratory of existing
law, except for the new duties imposed on employers with regard to
harassment.
(3) An employee of an entity subject to this subdivision is
personally liable for any harassment prohibited by this section that
is perpetrated by the employee, regardless of whether the employer or
covered entity knows or should have known of the conduct and fails
to take immediate and appropriate corrective action.
(4) (A) For purposes of this subdivision only, "employer" means
any person regularly employing one or more persons or regularly
receiving the services of one or more persons providing services
pursuant to a contract, or any person acting as an agent of an
employer, directly or indirectly, the state, or any political or
civil subdivision of the state, and cities. The definition of
"employer" in subdivision (d) of Section 12926 applies to all
provisions of this section other than this subdivision.
(B) Notwithstanding subparagraph (A), for purposes of this
subdivision, "employer" does not include a religious association or
corporation not organized for private profit, except as provided in
Section 12926.2.
(C) For purposes of this subdivision, "harassment" because of sex
includes sexual harassment, gender harassment, and harassment based
on pregnancy, childbirth, or related medical conditions.
(5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the
following criteria:
(A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently
established business.
(C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in
the course of the employer's work.
(k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
(l) For an employer or other entity covered by this part to refuse
to hire or employ a person or to refuse to select a person for a
training program leading to employment or to bar or to discharge a
person from employment or from a training program leading to
employment, or to discriminate against a person in compensation or in
terms, conditions, or privileges of employment because of a conflict
between the person's religious belief or observance and any
employment requirement, unless the employer or other entity covered
by this part demonstrates that it has explored any available
reasonable alternative means of accommodating the religious belief or
observance, including the possibilities of excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another time
or by another person, but is unable to reasonably accommodate the
religious belief or observance without undue hardship on the conduct
of the business of the employer or other entity covered by this part.
Religious belief or observance, as used in this section, includes,
but is not limited to, observance of a Sabbath or other religious
holy day or days, and reasonable time necessary for travel prior and
subsequent to a religious observance.
(m) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or mental
disability of an applicant or employee. Nothing in this subdivision
or in paragraph (1) or (2) of subdivision (a) shall be construed to
require an accommodation that is demonstrated by the employer or
other covered entity to produce undue hardship to its operation.
(n) For an employer or other entity covered by this part to fail
to engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable
accommodation by an employee or applicant with a known physical or
mental disability or known medical condition.
(o) For an employer or other entity covered by this part, to
subject, directly or indirectly, any employee, applicant, or other
person to a test for the presence of a genetic characteristic.
SEC. 2. Section 12941 of the Government Code is repealed.
SEC. 3. Section 12941.1 of the Government Code is amended and
renumbered to read:
12941. The Legislature hereby declares its rejection of the court
of appeal opinion in Marks v. Loral Corp. (1997) 57 Cal.App.4th 30,
and states that the opinion does not affect existing law in any way,
including, but not limited to, the law pertaining to disparate
treatment. The Legislature declares its intent that the use of
salary as the basis for differentiating between employees when
terminating employment may be found to constitute age discrimination
if use of that criterion adversely impacts older workers as a group,
and further declares its intent that the disparate impact theory of
proof may be used in claims of age discrimination. The Legislature
further reaffirms and declares its intent that the courts interpret
the state's statutes prohibiting age discrimination in employment
broadly and vigorously, in a manner comparable to prohibitions
against sex and race discrimination, and with the goal of not only
protecting older workers as individuals, but also of protecting older
workers as a group, since they face unique obstacles in the later
phases of their careers. Nothing in this section shall limit the
affirmative defenses traditionally available in employment
discrimination cases including, but not limited to, those set forth
in Section 7286.7 of Title 2 of the California Code of Regulations.
SEC. 4. It is the intent of the Legislature in enacting this act
to construe and clarify the meaning and effect of existing law and to
reject the interpretation given to the law in Esberg v. Union Oil
Company of California, 87 Cal.App.4th 378 (2001).