BILL ANALYSIS                                                                                                                                                                                                    






                           SENATE JUDICIARY COMMITTEE
                            Martha M. Escutia, Chair
                           2003-2004 Regular Session


          AB 2900                                                A
          Assembly Member Laird                                  B
          As Amended April 1, 2004
          Hearing Date: June 22, 2004                            2
          Education Code; Government Code; Labor Code;           9
          Military and Veterans' Code; Public Utilities Code;    0
          Unemployment Insurance Code;                           0
          Welfare and Institutions Code
          GMO:rm                                                 
                                                                 

                                     SUBJECT
                                         
                           Employment Discrimination

                                   DESCRIPTION  

          This bill would harmonize employment discrimination-related  
          provisions in various codes with the Fair Employment and  
          Housing Act (FEHA) to ensure that protected classes named  
          in those provisions are the same as those enumerated in  
          FEHA.

          The bill would make two substantive changes in the  
          application of the FEHA definition of protected classes to  
          the Agricultural Labor Relations Board (ALRB) and the  
          California State Military Reserve.  It would:
           require the ALRB to decertify a labor organization based  
            on a finding by the Department of Fair Employment and  
            Housing that the organization discriminated on the basis  
            of membership in the protected classes enumerated in  
            FEHA; and
           apply the non-discrimination policy to the protected  
            classes enumerated in FEHA, relating to service in the  
            California State Military Reserve in positions that do  
            not require federal recognition.

                                    BACKGROUND  

          This bill is sponsored by Equality California.
                                                                 
          (more)



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          Some 30 provisions located in various codes prohibit  
          discrimination in employment on different bases, such as  
          race, color, sex, religion and marital status of a person.   
          FEHA, on the other hand, has a more expansive list of  
          protected classes.  This bill would harmonize those  
          provisions with FEHA.
                            CHANGES TO EXISTING LAW
           
           Existing law  , scattered among several codes, prohibit  
          discrimination in employment on different bases, such as  
          race, color, sex, religion and marital status.

           Existing law  , the Fair Employment and Housing Act,  
          prohibits discrimination on the basis of race, religious  
          creed, color, national origin, ancestry, physical  
          disability, mental disability, medical condition, marital  
          status, sex, age, or sexual orientation. [Government Code  
          Section 12940 et seq.]

           This bill  would incorporate, in various code provisions  
          that prohibit discrimination in employment on the basis of  
          specified characteristics, a reference to the bases  
          enumerated in FEHA, as those bases may be defined under  
          that act.

           This bill  would require the ALRB to decertify a labor  
          organization based on a finding by the Department of Fair  
          Employment and Housing that the organization discriminated  
          on the basis of membership in the protected classes  
          enumerated in FEHA.

           This bill  would apply the non-discrimination policy to the  
          protected classes enumerated in FEHA, relating to service  
          in the California State Military Reserve in positions that  
          do not require federal recognition.

           This bill  would make other conforming changes to those  
          provisions.

                                     COMMENT
           
          1.     Need for the bill  

             The author contends that AB 2900 is needed "[i]n order  
                                                                       




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             to remedy the lack of protection for many Californians  
             and the confusion that exists for implementation and  
             compliance" with the varied  
             anti-discrimination-in-employment laws scattered in the  
             codes.

          2.     Provisions that AB 2889 would harmonize with Section  
          12940

              AB 2900 contains 35 provisions that in one manner or  
             another prohibit discrimination in employment on the  
             basis of various characteristics.  Some of these  
             provisions have not been amended since their enactment.   
             Section 12940 of FEHA, on the other hand, has been  
             amended several times, and continues to be refined, to  
             meet federal law and regulatory requirements and, in  
             some instances, to provide better protections for  
             California workers and citizens.  
             Section 12940 prohibits discrimination in employment on  
             the basis of race, religious creed, color, national  
             origin, ancestry, physical disability, mental  
             disability, medical condition, marital status, sex, age,  
             or sexual orientation.

             The provisions that would be changed to reference  
             Section 12940 are listed below.  It should be noted that  
             most of these provisions have not been updated in at  
             least 10 years, as they relate to the protected classes  
             or characteristics on which discrimination may not be  
             based.

              Education Code Sec. 44100  , relating to equal opportunity  
             and affirmative action in the employment of persons from  
             diverse backgrounds and minority communities in the  
             schools, to provide students with positive role models,  
             prohibits discrimination on the basis of race, sex,  
             color, religion, age, ancestry or national origin.  

              Education Code Sec. 69958  , relating to work-study  
             positions for students, prohibits employment  
             discrimination of students on the basis of race, color,  
             sex, religion, or national origin.

              Government Code Sec. 19572 and 19572.1  , relating to just  
             causes for discipline of a state employee, which  
                                                                       




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             includes unlawful discrimination, including harassment,  
             on the basis of race, religious creed, color, national  
             origin, ancestry, disability, marital status, sex, or  
             age.

              Government Code Sec. 19704  , relating to a prohibition  
             against requiring an entry or notation on any state  
             civil service form, application, or other record about a  
             person's race, color, religion, sex, or marital status.

              Labor Code Sec. 1777.6  , relating to a prohibition  
             against refusal to accept  otherwise qualified employees  
             or apprentices on the basis of race, religious creed,  
             color, national origin, ancestry, sex, or age.

              Public Utilities Code Secs. 25051  (Alameda or Contra  
             Costa County Transit District), 28850 (San Francisco Bay  
             Area Transit District), 30750 (Southern California Rapid  
             Transit District), 50120 (Stockton Metropolitan  
             District), 70121 (Marin County Transit District), 90300  
             (San Diego County Transit District), 95650 (Santa  
             Barbara Metropolitan Transit District), 98161 (Santa  
             Cruz Metropolitan Transit District), 100303 (Santa Clara  
             County Transit District), 101343 (Golden Empire Transit  
             District), 102402 (Sacramento Regional Transit  
             District), 103403 (San Mateo County Transit District),  
             120504 (county transit development boards), 125523  
             (North San Diego Transit Development Board): all  
             relating to a prohibition against employment contracts  
             or agreements between the Alameda or Contra Costa County  
             Transit District and any labor organization or  
             individual that denies membership on the grounds of  
             race, creed, or color.
             AB 2900 also would add a provision to these transit  
             district governing statutes to ban discrimination in  
             employment of any person on the basis of Section 12940  
             of FEHA.  This would be consistent with existing law,  
             which already prohibits such discrimination in  
             employment.

              Unemployment Insurance Code Sec. 1256.2  , relating to  
             termination of employment by depriving an employee of  
             equal employment opportunities on the basis of race,  
             color, religious creed, sex, national origin, ancestry,  
             or physical handicap.
                                                                       




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              Welfare and Institutions Code Sec. 11320.31  , relating to  
             exemption from sanctions for failure to comply with  
             welfare-to-work requirements where the offer of  
             employment or employment discriminates on the basis of  
             age, sex, race, religion, national origin, or physical  
             or mental disability. 

              Welfare and Institutions Code Sec. 11322.62  , relating to  
             a prohibition against discrimination in on-the-job  
             training programs on the basis of race, sex, national  
             origin, age, or disability.

              Welfare and Institutions Code Sec. 14087.28  , relating to  
             denial of membership or staff privileges to a physician  
             by a hospital on the basis of criteria lacking  
             professional justification, such as sex, race, creed or  
             national origin.

          3.     Two provisions do more than update protected classes  
          to Section 12940

              Besides updating the provisions enumerated in Comment 2,  
             where the update would be consistent with federal and  
             state statutes, regulations and case law, AB 2900 would  
             make two significant changes in the law.

             a.     Authorize ALRB to decertify a labor organization  
                based on DFEH finding of discrimination

                 Labor Code Sec. 1156.3 requires the Agriculture Labor  
                Relations Board to decertify a labor organization on  
                the basis of the U.S. Equal Employment Opportunity  
                Commission finding that the labor organization  
                engaged in discrimination on the basis of race,  
                color, national origin, religion, sex, or any other  
                arbitrary or invidious classification in violation of  
                Title 42 of the U.S. Code during the labor  
                organization's present certification.

                This bill would require the ALRB to decertify a labor  
                organization  if either the U.S. EEOC makes the  
                finding described above, or the Department of Fair  
                Employment and Housing finds that the labor  
                organization engaged in discrimination on the basis  
                                                                       




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                of those characteristics listed in Sec. 12940.
                This would be consistent with California's  
                longstanding policy of protecting its workers, even  
                more so than federal laws and regulations.  Because  
                Section 12940's list of protected classes is more  
                expansive in scope and less restrictive in qualifiers  
                than federal law, allowing the ALRB to decertify a  
                labor organization that discriminates on the basis of  
                membership in one of California's list of protected  
                classes makes sense. 
           
              b.     AB 2889 would codify the court's holding in Holmes  
                v. California National Guard, 90 Cal.App.4th, 297

                Holmes  involved the "Don't Ask, Don't Tell" policy of  
                the United States Military, that requires  
                self-acknowledged homosexuals to separate from  
                federal military service.  Holmes was an officer in  
                the California State Military Reserve who was placed  
                into service in the U.S. Army National Guard of  
                California.  When he acknowledged his homosexuality,  
                his federal recognition was withdrawn (he was given  
                an honorable discharge).  The state statute governing  
                state military reserve officers commissioned into  
                federal service allows them to return to former  
                reserve status and to remain as a state commissioned  
                officer of the California State Military Reserve.   
                The court held that the state effectively  
                discriminated against Holmes when it did not allow  
                Holmes to return to active duty in the California  
                State Military Reserve in a position that did not  
                require federal recognition.

                Section 130 of the Military and Veterans Code  
                prohibits segregation of the state militia or  
                discrimination on the basis of race, national origin,  
                ancestry, or color.  This bill would cross-reference  
                this section to Gov. Code Sec. 12940 (FEHA) instead.   


                Section 130 also declares the state policy that there  
                be equality of treatment and opportunity to all  
                members of the state militia without regard to race,  
                national origin, ancestry or color.  Again this bill  
                would cross-reference Sec. 12940 to include all of  
                                                                       




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                the other protected classes under this policy.  

                Additionally, Section 130 requires the Governor to  
                put this policy into effect in the militia, with due  
                regard to the powers of the federal government that  
                may be exercised over all the militia of the state.   
                AB 2900 would qualify this statement to refer to the  
                federal government's powers over the militia with  
                regards to positions requiring federal recognition.

                This change would preserve the rights of California  
                military personnel when they are not serving in the  
                United States military as part of the National Guard,  
                and tie those rights to the protections provided by  
                the Fair Employment and Housing Act.  AB 2889  
                incorporates language in the court's decision in  
                 Holmes,  which refer to the federal government's power  
                over the state's rules with regards to the military  
                as being limited to those positions that require  
                federal recognition.

          4.     Support and Opposition 

              In support of AB 2900, the California State Conference  
             of the National Association for the Advancement of  
             Colored People (NAACP) writes, "[a]s the nation's oldest  
             civil rights organization, the NAACP [supports] this  
             measure to create a consistent non-discrimination  
             statutory scheme that also would give California the  
             most comprehensive civil rights protections of any state  
             in the country for workers and employers."

             Another supporter, the Mexican American Legal Defense  
             and Educational Fund (MALDEF) states, "[w]e firmly  
             believe that the citizens of California, including  
             protected classes, would benefit greatly from the  
             removal of discrepancies among protected classes in the  
             statutes.  Creating uniformity in the definition of  
             protected classes will remove any deficiencies in  
             protection as well as any current confusion in the  
             application and compliance of the relevant statutes."

             The opponents, however, believe that, "[w]hile  
             consistency in the law is usually beneficial, we believe  
             existing law is harmful and that this bill, therefore,  
                                                                       




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             makes a bad situation even worse." Responsible Citizens,  
             Inc., letter dated June 17, 2004.  Another opponent  
             contends that passage of AB 2900 would force state  
             agencies not only "to keep records showing they are  
             hiring certain percentages of sexual and other  
             minorities, but will force them to actively seek out  
             sexual and other minorities for recruitment."

             Finally, the Associated Builders and Contractors of  
             California argues that the application of FEHA to all of  
             those employment-related statutes would "make the  
             construction industry vulnerable to predatory lawsuits  
             resulting from SB 796 (Dunn, 2003)."  SB 796 allows  
             employees to bring civil action to collect penalties  
             from employers in violation of Labor Code provisions,  
             and allows attorneys' fees and costs if the prosecution  
             is successful.
           
           
          Support: Office of the Attorney General; American Civil  
          Liberties Union;
                 American Federation of State, County, and Municipal  
          Employees 
                 (AFSCME), AFL-CIO; Anti-Defamation League;  
          California Independent 
                 Public Employees Legislative Council; California  
          Labor Federation; 
                 California National Organization for Women;  
          California State 
                 Conference of the National Association for the  
          Advancement of 
                 Colored People; Congress of California Seniors;  
          Human Rights/Fair 
                 Housing Commission of the City and County of  
          Sacramento; Lambda 
                 Letters Project; The Legal Aid Society; Mexican  
          American Legal Defense 
                 and Education Fund; Metropolitan Community Church,  
          Los Angeles; 
                 National Center for Lesbian Rights; Our Family  
          Coalition; Parents, 
                 Families, and Friends of Lesbians and Gays, Ventura  
          County; Pride at 
                 Work, Southern California; Protection and Advocacy,  
          Inc.; San 
                                                                       




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                 Francisco Aids Foundation; The San Francisco Lesbian  
          Gay Bisexual 
                 Transgender Community Center; Stonewall Democratic  
          Club of Greater 
                 Sacramento; Transgender Law Center

          Opposition: Associated Builders and Contractors of  
          California (ABC); Capitol 
                   Resource Institute; Responsible Citizens, Inc.;  
               Traditional Values 
                   Coalition; one individual

                                     HISTORY
           
          Source: Equality California

          Related Pending Legislation: AB 2889 (Laird) would amend  
                                Section 12940 as it relates to  
                                harassment in the workplace by  
                                nonemployees.

          Prior Legislation: None Known

          Prior Vote: Asm. L. & E. (Ayes 6, Noes 2)
                    Asm. Appr. (Ayes 16, Noes 5)
                    Asm. Flr. (Ayes 48, Noes 32)

          
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