BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 117 (Kehoe)
As Introduced
Hearing Date: April 5, 2011
Fiscal: No
Urgency: No
EDO:rm
SUBJECT
Public Contracts: Prohibitions:
Discrimination Based on Gender or Sexual Orientation
DESCRIPTION
Existing law prohibits the state from entering into a contract
of $100,000 or more with a vendor or contractor that does not
provide the same benefits to an employee and his or her
registered domestic partner as those provided to an employee and
his or her spouse. This bill would prohibit a state agency from
entering into a contract in the amount of $100,000 or more with
a contractor who, in the provision of benefits, discriminates
based on the gender or sexual orientation of an employee's
spouse or domestic partner.
BACKGROUND
California was the first state to pass legislation creating an
equal benefits statute. Citing the importance of having the
state take the lead and not "subsidize this discrimination with
taxpayer-funded contracts," AB 17 (Kehoe, Chapter 752, Statutes
of 2003), among other things, made it unlawful for a state
agency to enter into a public contract with a vendor or
contractor for goods or services if that vendor or contractor
did not provide the same benefits to an employee and his or her
registered domestic partner as those provided to an employee and
his or her spouse. Proponents argued that the state should not,
in the bidding process, disadvantage a company that recognizes
the need for equity in the workplace. AB 17 included certain
exceptions as well as circumstances when this requirement could
be waived. For example, the requirement can be waived by
(more)
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showing that "all reasonable measures" were taken to find a
compliant contractor.
In May 2008, the California Supreme Court, in a 4-3 decision,
struck down as unconstitutional the California statutes limiting
marriage to a man and a woman. (In re Marriage Cases (2008) 43
Cal.4th 757.) As a result, between June 2008 and November 2008,
over 18,000 same-sex couples were issued marriage licenses in
the state of California. In response to the court's ruling,
opponents of same-sex marriage gathered enough signatures to
place Proposition 8 on the November ballot, the constitutional
amendment stating that only a marriage between a man and a woman
is recognized in California. After passage of Proposition 8,
marriage licenses for same-sex couples were suspended.
However, the marriages performed prior to the passage of
Proposition 8 remain legal and are granted the same rights as
heterosexual marriages. (Strauss v. Horton (2009) 46 Cal.4th
388.) Additionally, in 2009 legislation was passed preserving
the validity of any lawful same-sex marriage performed outside
of California after the passage of Proposition 8. (SB 54
(Leno), Chapter 625, Statutes of 2009). As a result of these
events, over 18,000 same-sex couples are legally married in
California.
In order to protect the rights of legally married same-sex
couples in California, this bill would prohibit the state from
entering into a contract over $100,000 with a contractor who, in
the provision of benefits, discriminates based on the gender or
sexual orientation of an employee's spouse or domestic partner.
CHANGES TO EXISTING LAW
Existing law prohibits a state agency from entering into a
contract of $100,000 or more for goods or services with a vendor
or contractor that does not provide the same benefits to an
employee with a registered domestic partner that it provides to
an employee with a spouse. (Pub. Contract Code Sec. 10295.3.)
Existing law provides that a contractor is not in violation of
this provision if the contractor does any of the following:
Offers the same benefits to employees with domestic
partners and employees with spouses and offers the same
benefits to domestic partners and spouses of employees.
Provides the same benefits to individuals that are
provided to employees' spouses and employees' domestic
partners.
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Provides benefits on a basis unrelated to an employee's
marital status or domestic partnership status, including,
but not limited to, allowing each employee to designate a
legally domiciled member of the employee's household as
being eligible for benefits.
Does not provide benefits to employees based on their
marital status or domestic partnership status, or does not
provide benefits to employees' spouses and to employees'
domestic partners. (Pub. Contract Code Sec. 10295.3.)
Existing law provides that these requirements may be waived in
specified circumstances, including when there is only one
contractor willing to contract with the state or when the
contract is necessary to respond to an emergency and no entities
that are capable of responding and that comply with this section
are available. (Pub. Contract Code Sec. 10295.3.)
This bill would prohibit a state agency from entering into a
contract of $100,000 or more for goods or services with a vendor
or contractor who, in the provision of benefits, discriminates
based on the gender or sexual orientation of an employee's
spouse or domestic partner.
COMMENT
1. Stated need for the bill
According to the sponsor, Equality California:
The playing field for contractors needs to be leveled by
ensuring that entities that discriminate are not given a
competitive advantage over those who treat their employees
equally. Providing the same benefits to an employee with a
domestic partner, or same-sex or opposite-sex spouse ensures
that workers receive equal pay for equal work. To do
otherwise is essentially to discriminate against gay, lesbian,
bisexual, and transgender employees.
Providing equal benefits also shows respect for the diversity
of employees and their individual circumstances.
Additionally, treating employees fairly is a sound business
practice. A non-discriminatory benefits program enables
employers to attract and retain the best and most talented
employees, lowers turnover and recruitment costs, and helps
improve job satisfaction and performance.
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In support of the bill, the California Employment Lawyers
Association writes that "this bill is needed to ensure that the
legal protections achieved by AB 17 are afforded to the over
18,000 same sex couples who were married in California during
2008 by including the gender and sexual orientation of "spouses"
within the protections of AB 17. Similar protections have been
passed in local jurisdictions including Berkeley, Los Angeles,
Oakland, Sacramento, San Francisco, and San Mateo. Simply put,
state funds cannot be used in a manner that supports
discrimination in any form."
Also in support, the Commission on the Status of Women states
that "employee benefits account for 25 to 40% of an employee's
compensation. Providing the same benefits to an employee with a
domestic partnership, or same-sex or opposite-sex spouse ensures
that workers receive equal pay for equal work."
2. This bill will ensure that employees with same-sex spouses
receive the same protections under the equal benefits law as
employees with opposite-sex spouses
Existing law prohibits the state from entering into contracts of
$100,000 or more with contractors unless they provide the same
benefits to employees' domestic partners as they do for
employees' spouses. Under this bill, the state would also be
prohibited from entering into certain contracts with contractors
unless they provide equal benefits to employees' domestic
partners or spouses, regardless of their partners or spouses'
gender or sexual orientation.
The term "spouse" has a different meaning in California
depending on when in our recent history it is being used. Prior
to May 2008, marriage in California was only statutorily
recognized as between a man and a woman, so the term spouse
referred only to opposite-sex couples. The statute was
challenged in court and found to be unconstitutional. This
holding resulted in the state issuing over 18,000 marriage
licenses to same-sex couples between June and November 2008. As
a result, between June and November 2008, spouse referred to
both opposite-sex and same-sex couples. In November 2008,
Proposition 8, the constitutional amendment defining marriage as
only between a man and woman was passed and the term spouse went
back to only applying to opposite-sex couples. However, because
of the same-sex marriages that took place between June and
November 2008 more than 18,000 same-sex couples who were legally
married, as well as same-sex marriages that occurred out of
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state are still considered "spouses." This bill seeks to
protect those couples' rights with respect to California's equal
benefits law. The California National Organization for Women
notes that "although AB 17, signed into law in 2003, prohibits
the state from contracting with businesses that discriminate in
benefits between spouses and domestic partners, the 18,000
same-sex couples legally married in 2008 fall into a potential
gap in the law." This bill would fill that potential gap and
ensure that the state may not enter into certain contracts if
the contractor discriminates in the provision of benefits based
on the gender or sexual orientation of the spouse or domestic
partner of an employee.
3. Same-sex couples must be treated equally under the law in
California
In 2009, the California Supreme Court determined that
Proposition 8 did not repeal the constitutional rights of
individuals to choose their life partners and enter into "a
committed, officially recognized, and protected family
relationship that enjoys all the constitutionally based
incidents of marriage" recognized by the Court in Marriage
Cases. (Strauss v. Horton, (2009) 46 Cal.4th at 388.) Instead,
the Court found that Proposition 8 "carves out a narrow and
limited exception to these state constitutional rights,
reserving the official designation of the term 'marriage' for
the union of opposite-sex couples as a matter of state
constitutional law, but leaving undisturbed all of the other
extremely significant substantive aspects of a same-sex couple's
state constitutional right to establish an officially recognized
and protected family relationship and the guarantee of equal
protection of the laws." (Id.)
As a result of this ruling, same-sex couples must be treated
equal to their opposite-sex couple counterparts. At the time AB
17 was enacted, same-sex couples could not legally marry in
California and so the term "spouse" referred only to an
opposite-sex couple. After the holding in the Marriage Cases,
followed by the issuance of marriage licenses for over 18,000
same-sex couples, the term "spouse" now includes many same-sex
couples. Because the court in Strauss determined that the
same-sex marriages that took place prior to the passage of
Proposition 8 are valid and legal, and also that same-sex
spouses must be afforded the same rights as their opposite
sex-counterparts, this bill will clarify the existing equal
benefits law and provide an employee with a same-sex spouse with
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the same rights as an employee with an opposite-sex spouse in
accordance with the California Supreme Court's holding in
Strauss.
4. The provisions of this statute are severable
Potential concerns have been raised that this statute may be
preempted by the Employment Retirement Income Security Act of
1974 (ERISA). However, Committee staff is not aware of any
ERISA claims challenging the California equal benefits law as
set forth in Public Contract Code Section 10295.3. It is
important to note that the existing California equal benefits
law contains a severability clause. The statute specifically
provides that in the event that any court or agency of competent
jurisdiction finds that the federal law, rule, or regulation
invalidates any part of the statute, that part would be severed
so the remainder may be given effect. Existing law also
expressly provides that it shall not be construed so as to
conflict with any applicable federal law, rules, or regulations.
Support : California Commission on the Status of Women;
California Employment Lawyers Association; California National
Organization for Women; Gray Panthers Association of California
Networks; Professional Engineers in California Government
Opposition : None Known
HISTORY
Source : Equality California
Related Pending Legislation : None Known
Prior Legislation :
AB 17 (Kehoe, Chapter 752, Statutes of 2003). (See Background.)
AB 1080 (Kehoe, 2002), among other things, would have prohibited
the state to enter into a contract for goods or services with a
vendor or contractor that does not provide the same benefits to
an employee with a registered domestic partner that it provides
to an employee with a spouse. This bill died pending
concurrence in the Assembly.
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Prior Vote : Senate Committee on Governmental Organization (Ayes
7, Noes 5)
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