BILL ANALYSIS Ó
SB 117
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 117 (Kehoe) - As Introduced: January 20, 2011
As Proposed to be Amended
SENATE VOTE : 21-15
SUBJECT : PUBLIC CONTRACTS: DISCRIMINATION AGAINST EMPLOYEES AND
THEIR SPOUSES OR DOMESTIC PARTNERS
KEY ISSUE : SHOULD THE STATE DECLINE TO CONTRACT WITH COMPANIES
THAT DISCRIMINATE AGAINST THEIR EMPLOYEES, SPOUSES OR DOMESTIC
PARTNERS BASED ON WHETHER THOSE PERSONS ARE IN SAME-SEX OR
DIFFERENT SEX RELATIONSHIPS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
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
between employees with spouses or domestic partners of a
different sex and employees with spouses or domestic partners of
the same sex, or discriminates between same-sex and
different-sex domestic partners of employees or between same-sex
and different-sex spouses of employees. Supporters believe the
bill will better carry out existing public contracting
prohibitions against discrimination. The bill has no
opposition.
SUMMARY : Prohibits the state from entering into certain
contracts with companies that discriminate, as specified.
Specifically, this bill prohibits state agencies 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 between employees with spouses or domestic
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partners of a different sex and employees with spouses or
domestic partners of the same sex, or discriminates between
same-sex and different-sex domestic partners of employees or
between same-sex and different-sex spouses of employees.
EXISTING LAW :
1)Generally 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.)
2)Prohibits discrimination by all state contactors and other
recipients of state financial assistance on the basis of
gender, sexual orientation, race and other protected
characteristics. (Government Code section 11135.)
COMMENTS : 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 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
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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 between employees with
spouses or domestic partners of a different sex and employees
with spouses or domestic partners of the same sex, or
discriminates between same-sex and different-sex domestic
partners of employees or between same-sex and different-sex
spouses of employees.
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.
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
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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."
This Bill Will Ensure That Employees With Same-Sex Spouses
Receive The Same Protections Under The Equal Benefits Law As
Employees With Different-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
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
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partner of an employee.
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
equally 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
the same rights as an employee with an opposite-sex spouse in
accordance with the California Supreme Court's holding in
Strauss.
Relationship to Existing Law Regarding State Contractors.
Existing law generally prohibits sexual orientation and gender
discrimination by all state contractors, independently of any
other prohibition. (Government Code sections 11135, 11139.)
This bill would not affect those obligations nor subject them to
the provisions of the Public Contract Code.
Author's Clarifying Amendment . In order to better capture the
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intent of the bill, the author appropriately proposes the
following clarifying amendment:
10295.3. (a) (1) Notwithstanding any other provision of law, no
state agency may enter into any contract for the acquisition of
goods or services in the amount of one hundred thousand dollars
($100,000) or more with a contractor who, in the provision of
benefits, discriminates between employees with spouses and
employees with domestic partners, or discriminates between the
domestic partners and spouses of those employees, or
discriminates based on the gender or sexual orientation of the
spouses or domestic partners. between employees with spouses or
domestic partners of a different sex and employees with spouses
or domestic partners of the same sex, or discriminates between
same-sex and different-sex domestic partners of employees or
between same-sex and different-sex spouses of employees.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
California Commission on the Status of Women
California Communities United Institute
California Employment Lawyers Association
California Faculty Association
California Federation of Teachers
California Labor Federation
California National Organization for Women
California Nurses Association
City of West Hollywood
Gray Panthers Association of California Networks
Los Angeles Gay and Lesbian Center
Professional Engineers in California Government
SEIU Local 1000
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
SB 117
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