BILL ANALYSIS Ó AB 2386 Page 1 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 Page 2 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. AB 2386 Page 3 Analysis Prepared by : Kimberly Rodriguez / APPR. / (916) 319-2081