California Legislature—2013–14 Regular Session

Assembly Bill No. 556

Introduced by Assembly Member Salas

February 20, 2013

An act to amend Sections 12926 and 12940 of the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 556, as introduced, Salas. Fair Employment and Housing Act: military veterans.

Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.

This bill would add “military and veteran status,” as defined, to the list of categories protected from discrimination under the act. This bill would also provide an exemption for an inquiry by an employer regarding military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 12926 of the Government Code is
amended to read:

12926.  

As used in this part in connection with unlawful
practices, unless a different meaning clearly appears from the
context:

(a) “Affirmative relief” or “prospective relief” includes the
authority to order reinstatement of an employee, awards of backpay,
reimbursement of out-of-pocket expenses, hiring, transfers,
reassignments, grants of tenure, promotions, cease and desist
orders, posting of notices, training of personnel, testing, expunging
of records, reporting of records, and any other similar relief that
is intended to correct unlawful practices under this part.

(b) “Age” refers to the chronological age of any individual who
has reached his or her 40th birthday.

(c) “Employee” does not include any individual employed by
his or her parents, spouse, or child, or any individual employed
under a special license in a nonprofit sheltered workshop or
rehabilitation facility.

(d) “Employer” includes any person regularly employing five
or more persons, or any person acting as an agent of an employer,
directly or indirectly, the state or any political or civil subdivision
of the state, and cities, except as follows:

“Employer” does not include a religious association or
corporation not organized for private profit.

(e) “Employment agency” includes any person undertaking for
compensation to procure employees or opportunities to work.

(f) “Essential functions” means the fundamental job duties of
the employment position the individual with a disability holds or
desires. “Essential functions” does not include the marginal
functions of the position.

(1) A job function may be considered essential for any of several
reasons, including, but not limited to, any one or more of the
following:

(A) The function may be essential because the reason the
position exists is to perform that function.

(B) The function may be essential because of the limited number
of employees available among whom the performance of that job
function can be distributed.

(C) The function may be highly specialized, so that the
incumbent in the position is hired for his or her expertise or ability
to perform the particular function.

(2) Evidence of whether a particular function is essential
includes, but is not limited to, the following:

(A) The employer’s judgment as to which functions are essential.

(B) Written job descriptions prepared before advertising or
interviewing applicants for the job.

(C) The amount of time spent on the job performing the function.

(D) The consequences of not requiring the incumbent to perform
the function.

(E) The terms of a collective bargaining agreement.

(F) The work experiences of past incumbents in the job.

(G) The current work experience of incumbents in similar jobs.

(g) (1) “Genetic information” means, with respect to any
individual, information about any of the following:

(A) The individual’s genetic tests.

(B) The genetic tests of family members of the individual.

(C) The manifestation of a disease or disorder in family members
of the individual.

(2) “Genetic information” includes any request for, or receipt
of, genetic services, or participation in clinical research that
includes genetic services, by an individual or any family member
of the individual.

(3) “Genetic information” does not include information about
the sex or age of any individual.

(h) “Labor organization” includes any organization that exists
and is constituted for the purpose, in whole or in part, of collective
bargaining or of dealing with employers concerning grievances,
terms or conditions of employment, or of other mutual aid or
protection.

(i) “Medical condition” means either of the following:

(1) Any health impairment related to or associated with a
diagnosis of cancer or a record or history of cancer.

(2) Genetic characteristics. For purposes of this section, “genetic
characteristics” means either of the following:

(A) Any scientifically or medically identifiable gene or
chromosome, or combination or alteration thereof, that is known
to be a cause of a disease or disorder in a person or his or her
offspring, or that is determined to be associated with a statistically
increased risk of development of a disease or disorder, and that is
presently not associated with any symptoms of any disease or
disorder.

(B) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any symptoms of any disease or disorder.

(j) “Mental disability” includes, but is not limited to, all of the
following:

(1) Having any mental or psychological disorder or condition,
such as intellectual disability, organic brain syndrome, emotional
or mental illness, or specific learning disabilities, that limits a
major life activity. For purposes of this section:

(A) “Limits” shall be determined without regard to mitigating
measures, such as medications, assistive devices, or reasonable
accommodations, unless the mitigating measure itself limits a
major life activity.

(B) A mental or psychological disorder or condition limits a
major life activity if it makes the achievement of the major life
activity difficult.

(C) “Major life activities” shall be broadly construed and shall
include physical, mental, and social activities and working.

(2) Any other mental or psychological disorder or condition not
described in paragraph (1) that requires special education or related
services.

(3) Having a record or history of a mental or psychological
disorder or condition described in paragraph (1) or (2), which is
known to the employer or other entity covered by this part.

(4) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, any mental condition
that makes achievement of a major life activity difficult.

(5) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, a mental or
psychological disorder or condition that has no present disabling
effect, but that may become a mental disability as described in
paragraph (1) or (2).

“Mental disability” does not include sexual behavior disorders,
compulsive gambling, kleptomania, pyromania, or psychoactive
substance use disorders resulting from the current unlawful use of
controlled substances or other drugs.

begin insert

(k) “Military and veteran status” means a member or veteran
of the United States Armed Forces, United States Armed Forces
Reserve, the United States National Guard, and the California
National Guard.

end insert begin delete

(k)

end delete

begin insert (l) end insert  “On the bases enumerated in this part” means or refers to
discrimination on the basis of one or more of the following: race,
religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information, marital
status, sex, age, or sexual orientation.

begin delete

(l)

end delete

begin insert (m) end insert  “Physical disability” includes, but is not limited to, all of
the following:

(1) Having any physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss that does both of the
following:

(A) Affects one or more of the following body systems:
neurological, immunological, musculoskeletal, special sense
organs, respiratory, including speech organs, cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin,
and endocrine.

(B) Limits a major life activity. For purposes of this section:

(i) “Limits” shall be determined without regard to mitigating
measures such as medications, assistive devices, prosthetics, or
reasonable accommodations, unless the mitigating measure itself
limits a major life activity.

(ii) A physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss limits a major life activity if it
makes the achievement of the major life activity difficult.

(iii) “Major life activities” shall be broadly construed and
includes physical, mental, and social activities and working.

(2) Any other health impairment not described in paragraph (1)
that requires special education or related services.

(3) Having a record or history of a disease, disorder, condition,
cosmetic disfigurement, anatomical loss, or health impairment
described in paragraph (1) or (2), which is known to the employer
or other entity covered by this part.

(4) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, any physical
condition that makes achievement of a major life activity difficult.

(5) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, a disease, disorder,
condition, cosmetic disfigurement, anatomical loss, or health
impairment that has no present disabling effect but may become
a physical disability as described in paragraph (1) or (2).

(6) “Physical disability” does not include sexual behavior
disorders, compulsive gambling, kleptomania, pyromania, or
psychoactive substance use disorders resulting from the current
unlawful use of controlled substances or other drugs.

begin delete

(m)

end delete

begin insert (n) end insert  Notwithstanding subdivisions (j) and begin delete (l) end delete begin insert (m) end insert , if the definition
of “disability” used in the federal Americans with Disabilities Act
of 1990 (P.L. 101-336) would result in broader protection of the
civil rights of individuals with a mental disability or physical
disability, as defined in subdivision (j) or begin delete (l) end delete begin insert (m) end insert , or would include
any medical condition not included within those definitions, then
that broader protection or coverage shall be deemed incorporated
by reference into, and shall prevail over conflicting provisions of,
the definitions in subdivisions (j) and begin delete (l) end delete begin insert (m) end insert .

begin delete

(n)

end delete

begin insert (o) end insert  “Race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, age, or sexual orientation” includes
a perception that the person has any of those characteristics or that
the person is associated with a person who has, or is perceived to
have, any of those characteristics.

begin delete

(o)

end delete

begin insert (p) end insert  “Reasonable accommodation” may include either of the
following:

(1) Making existing facilities used by employees readily
accessible to, and usable by, individuals with disabilities.

(2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals
with disabilities.

begin delete

(p)

end delete

begin insert (q) end insert  “Religious creed,” “religion,” “religious observance,”
“religious belief,” and “creed” include all aspects of religious
belief, observance, and practice, including religious dress and
grooming practices. “Religious dress practice” shall be construed
broadly to include the wearing or carrying of religious clothing,
head or face coverings, jewelry, artifacts, and any other item that
is part of the observance by an individual of his or her religious
creed. “Religious grooming practice” shall be construed broadly
to include all forms of head, facial, and body hair that are part of
the observance by an individual of his or her religious creed.

begin delete

(q)

end delete

begin insert (r) end insert  (1) “Sex” includes, but is not limited to, the following:

(A) Pregnancy or medical conditions related to pregnancy.

(B) Childbirth or medical conditions related to childbirth.

(C) Breastfeeding or medical conditions related to breastfeeding.

(2) “Sex” also includes, but is not limited to, a person’s gender.
“Gender” means sex, and includes a person’s gender identity and
gender expression. “Gender expression” means a person’s
gender-related appearance and behavior whether or not
stereotypically associated with the person’s assigned sex at birth.

begin delete

(r)

end delete

begin insert (s) end insert  “Sexual orientation” means heterosexuality, homosexuality,
and bisexuality.

begin delete

(s)

end delete

begin insert (t) end insert  “Supervisor” means any individual having the authority, in
the interest of the employer, to hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward, or discipline other employees,
or the responsibility to direct them, or to adjust their grievances,
or effectively to recommend that action, if, in connection with the
foregoing, the exercise of that authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.

begin delete

(t)

end delete

begin insert (u) end insert  “Undue hardship” means an action requiring significant
difficulty or expense, when considered in light of the following
factors:

(1) The nature and cost of the accommodation needed.

(2) The overall financial resources of the facilities involved in
the provision of the reasonable accommodations, the number of
persons employed at the facility, and the effect on expenses and
resources or the impact otherwise of these accommodations upon
the operation of the facility.

(3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the
number of employees, and the number, type, and location of its
facilities.

(4) The type of operations, including the composition, structure,
and functions of the workforce of the entity.

(5) The geographic separateness, administrative, or fiscal
relationship of the facility or facilities.

SEC. 2.  

Section 12940 of the Government Code is amended
to read:

12940.  

It is an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United
States or the State of California:

(a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, begin delete or end delete sexual orientation begin insert , or end insert
begin insert military and veteran status, end insert of any person, to refuse to hire or
employ the person or to refuse to select the person for a training
program leading to employment, or to bar or to discharge the
person from employment or from a training program leading to
employment, or to discriminate against the person in compensation
or in terms, conditions, or privileges of employment.

(1) This part does not prohibit an employer from refusing to
hire or discharging an employee with a physical or mental
disability, or subject an employer to any legal liability resulting
from the refusal to employ or the discharge of an employee with
a physical or mental disability, where the employee, because of
his or her physical or mental disability, is unable to perform his
or her essential duties even with reasonable accommodations, or
cannot perform those duties in a manner that would not endanger
his or her health or safety or the health or safety of others even
with reasonable accommodations.

(2) This part does not prohibit an employer from refusing to
hire or discharging an employee who, because of the employee’s
medical condition, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those
duties in a manner that would not endanger the employee’s health
or safety or the health or safety of others even with reasonable
accommodations. Nothing in this part shall subject an employer
to any legal liability resulting from the refusal to employ or the
discharge of an employee who, because of the employee’s medical
condition, is unable to perform his or her essential duties, or cannot
perform those duties in a manner that would not endanger the
employee’s health or safety or the health or safety of others even
with reasonable accommodations.

(3) Nothing in this part relating to discrimination on account of
marital status shall do either of the following:

(A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.

(B) Prohibit bona fide health plans from providing additional
or greater benefits to employees with dependents than to those
employees without or with fewer dependents.

(4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam-era veterans.

(5) (A) This part does not prohibit an employer from refusing
to employ an individual because of his or her age if the law
compels or provides for that refusal. Promotions within the existing
staff, hiring or promotion on the basis of experience and training,
rehiring on the basis of seniority and prior service with the
employer, or hiring under an established recruiting program from
high schools, colleges, universities, or trade schools do not, in and
of themselves, constitute unlawful employment practices.

(B) The provisions of this part relating to discrimination on the
basis of age do not prohibit an employer from providing health
benefits or health care reimbursement plans to retired persons that
are altered, reduced, or eliminated when the person becomes
eligible for Medicare health benefits. This subparagraph applies
to all retiree health benefit plans and contractual provisions or
practices concerning retiree health benefits and health care
reimbursement plans in effect on or after January 1, 2011.

(b) For a labor organization, because of the race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, or sexual
orientation of any person, to exclude, expel, or restrict from its
membership the person, or to provide only second-class or
segregated membership or to discriminate against any person
because of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation of the person in the election
of officers of the labor organization or in the selection of the labor
organization’s staff or to discriminate in any way against any of
its members or against any employer or against any person
employed by an employer.

(c) For any person to discriminate against any person in the
selection or training of that person in any apprenticeship training
program or any other training program leading to employment
because of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation of the person discriminated
against.

(d) For any employer or employment agency to print or circulate
or cause to be printed or circulated any publication, or to make
any nonjob-related inquiry of an employee or applicant, either
verbal or through use of an application form, that expresses,
directly or indirectly, any limitation, specification, or discrimination
as to race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender expression,
age, or sexual orientation, or any intent to make any such limitation,
specification, or discrimination. This part does not prohibit an
employer or employment agency from inquiring into the age of
an applicant, or from specifying age limitations, where the law
compels or provides for that action.

(e) (1) Except as provided in paragraph (2) or (3), for any
employer or employment agency to require any medical or
psychological examination of an applicant, to make any medical
or psychological inquiry of an applicant, to make any inquiry
whether an applicant has a mental disability or physical disability
or medical condition, or to make any inquiry regarding the nature
or severity of a physical disability, mental disability, or medical
condition.

(2) Notwithstanding paragraph (1), an employer or employment
agency may inquire into the ability of an applicant to perform
job-related functions and may respond to an applicant’s request
for reasonable accommodation.

(3) Notwithstanding paragraph (1), an employer or employment
agency may require a medical or psychological examination or
make a medical or psychological inquiry of a job applicant after
an employment offer has been made but prior to the
commencement of employment duties, provided that the
examination or inquiry is job related and consistent with business
necessity and that all entering employees in the same job
classification are subject to the same examination or inquiry.

(f) (1) Except as provided in paragraph (2), for any employer
or employment agency to require any medical or psychological
examination of an employee, to make any medical or psychological
inquiry of an employee, to make any inquiry whether an employee
has a mental disability, physical disability, or medical condition,
or to make any inquiry regarding the nature or severity of a physical
disability, mental disability, or medical condition.

(2) Notwithstanding paragraph (1), an employer or employment
agency may require any examinations or inquiries that it can show
to be job related and consistent with business necessity. An
employer or employment agency may conduct voluntary medical
examinations, including voluntary medical histories, which are
part of an employee health program available to employees at that
worksite.

(g) For any employer, labor organization, or employment agency
to harass, discharge, expel, or otherwise discriminate against any
person because the person has made a report pursuant to Section
11161.8 of the Penal Code that prohibits retaliation against hospital
employees who report suspected patient abuse by health facilities
or community care facilities.

(h) For any employer, labor organization, employment agency,
or person to discharge, expel, or otherwise discriminate against
any person because the person has opposed any practices forbidden
under this part or because the person has filed a complaint, testified,
or assisted in any proceeding under this part.

(i) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts forbidden under this part, or to attempt to
do so.

(j) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading
to employment, or any other person, because of race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, or sexual
orientation, to harass an employee, an applicant, or a person
providing services pursuant to a contract. Harassment of an
employee, an applicant, or a person providing services pursuant
to a contract by an employee, other than an agent or supervisor,
shall be unlawful if the entity, or its agents or supervisors, knows
or should have known of this conduct and fails to take immediate
and appropriate corrective action. An employer may also be
responsible for the acts of nonemployees, with respect to sexual
harassment of employees, applicants, or persons providing services
pursuant to a contract in the workplace, where the employer, or
its agents or supervisors, knows or should have known of the
conduct and fails to take immediate and appropriate corrective
action. In reviewing cases involving the acts of nonemployees, the
extent of the employer’s control and any other legal responsibility
that the employer may have with respect to the conduct of those
nonemployees shall be considered. An entity shall take all
reasonable steps to prevent harassment from occurring. Loss of
tangible job benefits shall not be necessary in order to establish
harassment.

(2) The provisions of this subdivision are declaratory of existing
law, except for the new duties imposed on employers with regard
to harassment.

(3) An employee of an entity subject to this subdivision is
personally liable for any harassment prohibited by this section that
is perpetrated by the employee, regardless of whether the employer
or covered entity knows or should have known of the conduct and
fails to take immediate and appropriate corrective action.

(4) (A) For purposes of this subdivision only, “employer” means
any person regularly employing one or more persons or regularly
receiving the services of one or more persons providing services
pursuant to a contract, or any person acting as an agent of an
employer, directly or indirectly, the state, or any political or civil
subdivision of the state, and cities. The definition of “employer”
in subdivision (d) of Section 12926 applies to all provisions of this
section other than this subdivision.

(B) Notwithstanding subparagraph (A), for purposes of this
subdivision, “employer” does not include a religious association
or corporation not organized for private profit, except as provided
in Section 12926.2.

(C) For purposes of this subdivision, “harassment” because of
sex includes sexual harassment, gender harassment, and harassment
based on pregnancy, childbirth, or related medical conditions.

(5) For purposes of this subdivision, “a person providing services
pursuant to a contract” means a person who meets all of the
following criteria:

(A) The person has the right to control the performance of the
contract for services and discretion as to the manner of
performance.

(B) The person is customarily engaged in an independently
established business.

(C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work,
and performs work that requires a particular skill not ordinarily
used in the course of the employer’s work.

(k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading
to employment, to fail to take all reasonable steps necessary to
prevent discrimination and harassment from occurring.

(l) (1) For an employer or other entity covered by this part to
refuse to hire or employ a person or to refuse to select a person
for a training program leading to employment or to bar or to
discharge a person from employment or from a training program
leading to employment, or to discriminate against a person in
compensation or in terms, conditions, or privileges of employment
because of a conflict between the person’s religious belief or
observance and any employment requirement, unless the employer
or other entity covered by this part demonstrates that it has explored
any available reasonable alternative means of accommodating the
religious belief or observance, including the possibilities of
excusing the person from those duties that conflict with his or her
religious belief or observance or permitting those duties to be
performed at another time or by another person, but is unable to
reasonably accommodate the religious belief or observance without
undue hardship, as defined in subdivision begin delete (t) end delete begin insert (u) end insert of Section 12926,
on the conduct of the business of the employer or other entity
covered by this part. Religious belief or observance, as used in
this section, includes, but is not limited to, observance of a Sabbath
or other religious holy day or days, reasonable time necessary for
travel prior and subsequent to a religious observance, and religious
dress practice and religious grooming practice as described in
subdivision begin delete (p) end delete begin insert (q) end insert of Section 12926.

(2) An accommodation of an individual’s religious dress practice
or religious grooming practice is not reasonable if the
accommodation requires segregation of the individual from other
employees or the public.

(3) An accommodation is not required under this subdivision
if it would result in a violation of this part or any other law
prohibiting discrimination or protecting civil rights, including
subdivision (b) of Section 51 of the Civil Code and Section 11135
of this code.

(m) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or
mental disability of an applicant or employee. Nothing in this
subdivision or in paragraph (1) or (2) of subdivision (a) shall be
construed to require an accommodation that is demonstrated by
the employer or other covered entity to produce undue hardship,
as defined in subdivision begin delete (t) end delete begin insert (u) end insert of Section 12926, to its operation.

(n) For an employer or other entity covered by this part to fail
to engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable
accommodation by an employee or applicant with a known physical
or mental disability or known medical condition.

(o) For an employer or other entity covered by this part, to
subject, directly or indirectly, any employee, applicant, or other
person to a test for the presence of a genetic characteristic.

begin insert

(p) Nothing in this section shall be interpreted as preventing
the ability of employers to identify members of the military or
veterans for purposes of awarding a veteran’s preference as
permitted by law.

end insert