BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2386
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          Date of Hearing:   May 25, 2012

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                    AB 2386 (Allen) - As Amended:  April 25, 2012 

          Policy Committee:                              Labor and 
          Employment   Vote:                            5-1
                        Judiciary                             9-1

          Urgency:     No                   State Mandated Local Program: 
          No     Reimbursable:              No

           SUMMARY  

          This bill amends the definition of "sex," regarding to 
          discrimination in the Fair Employment and Housing Act (FEHA), to 
          include breastfeeding or medical conditions related to 
          breastfeeding.    

           FISCAL EFFECT  

          No additional fiscal impact to the Department of Fair Employment 
          Housing to comply with this measure.  

           COMMENTS  

           1)Purpose  .  In 2009, the Fair Employment Housing Commission 
            (Commission) determined breastfeeding fell under the 
            definition of "sex" for the purposes of discrimination under 
            FEHA.   A woman working at a restaurant in Los Angeles County 
            alleged she was fired from her job because she breastfed at 
            work.  The Commission ruled in favor of the woman and stated: 
            "breastfeeding is an activity intrinsic to the female sex. 
            Accordingly, termination in violation of complainant's right 
            to return to work from pregnancy disability leave because she 
            was still breastfeeding was discrimination on the basis of sex 
            Ýunder state law]."   

            According to the author, "While California has enacted laws in 
            recent years to protect and promote breastfeeding, such as the 
            right to breastfeed in public (AB 157, 1997), and workplace 
            break time and facility space accommodations (AB 1025, 2002), 
            more needs to be done.  For example, California laws do not 








                                                                  AB 2386
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            specifically protect nursing mothers from being reassigned to 
            other work, required to work different shifts, requested to 
            take additional leave, or potentially from being terminated.  
            AB 2386 simply clarifies the existing statutory definition of 
            sex under FEHA by codifying a decision by the Commission that 
            held that breastfeeding is an activity intrinsic to the female 
            sex and discriminatory acts based on this activity constitutes 
            discrimination based on sex."

           2)Background  .  FEHA prohibits discrimination in employment on 
            the basis of specified factors, including, race, national 
            origin, sex, age, disability, and sexual orientation.   For 
            the purposes of the FEHA, current law defines "sex" as 
            including, but not limited to, pregnancy, childbirth, or 
            medical conditions related to pregnancy or childbirth.  

            AB 1025 (Frommer), Chapter 821, Statutes of 2001 required 
            every employer, including the state, to provide a reasonable 
            amount of break time to accommodate the employee's ability to 
            express breast milk for her infant child.  Chapter 821 also 
            required the employer to make reasonable efforts to provide 
            the employee with the use of a room or other location, other 
            than a toilet stall, in close proximity to the employee's work 
            area, for the employee to express milk in private.   

           3)2010 federal health care law  .  The federal Patient Protection 
            and Affordable Care Act (the Act) mandates employers make 
            reasonable accommodations for women who are breastfeeding. 
            Specifically, the Act amended federal labor statute to require 
            the following: 

             a)   A "reasonable break time" for an employee to express 
               breast milk at work.   
             b)   Break time for up to one year after the birth of the 
               child. 
             c)   A private place, other than a restroom, where the 
               employee may express milk. 

            FLSA requirements do not preempt state laws that provide 
            greater protection. Furthermore, employees exercising their 
            rights under federal labor law have no recourse if they face 
            adverse employment actions in other aspects of their jobs, 
            such as restricted opportunities for promotion, less flexible 
            scheduling, or lowed wages as the Act does not protect against 
            breastfeeding discrimination. 








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           Analysis Prepared by  :    Kimberly Rodriguez / APPR. / (916) 
          319-2081