Amended in Assembly May 1, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 1443


Introduced by Assembly Member Skinner

begin insert

(Principal coauthor: Assembly Member Roger Hernández)

end insert

(Coauthors: Assembly Members Bonilla, Campos, Chesbro, Frazier,begin delete and Stoneend deletebegin insert and Stone, Weber, and Yamadaend insert)

January 6, 2014


An act to amend Section 12940 of the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1443, as amended, Skinner. Harassment: unpaid interns.

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, abridgment, or harassment 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, sexual orientation, or military and veteran status. Existing law makes these provisions applicable to employers, labor organizations, employment agencies, and specified training programs.

This bill would provide that discrimination against any person in the selectionbegin delete orend deletebegin insert, termination,end insert trainingbegin insert, or other terms or treatmentend insert of that person in an unpaid internshipbegin insert, or any other program to provide unpaid experience for that person in the workplace or industryend insert, or the harassment of an unpaid internbegin insert or volunteerend insert, on account of the factors described above is an unlawful employment practice.

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

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

P2    1

SECTION 1.  

Section 12940 of the Government Code is
2amended to read:

3

12940.  

It is an unlawful employment practice, unless based
4upon a bona fide occupational qualification, or, except where based
5upon applicable security regulations established by the United
6States or the State of California:

7(a) For an employer, because of the race, religious creed, color,
8national origin, ancestry, physical disability, mental disability,
9medical condition, genetic information, marital status, sex, gender,
10gender identity, gender expression, age, sexual orientation, or
11military and veteran status of any person, to refuse to hire or
12employ the person or to refuse to select the person for a training
13program leading to employment, or to bar or to discharge the
14person from employment or from a training program leading to
15employment, or to discriminate against the person in compensation
16or in terms, conditions, or privileges of employment.

17(1) This part does not prohibit an employer from refusing to
18hire or discharging an employee with a physical or mental
19disability, or subject an employer to any legal liability resulting
20from the refusal to employ or the discharge of an employee with
21a physical or mental disability, where the employee, because of
22his or her physical or mental disability, is unable to perform his
23or her essential duties even with reasonable accommodations, or
24cannot perform those duties in a manner that would not endanger
25his or her health or safety or the health or safety of others even
26with reasonable accommodations.

27(2) This part does not prohibit an employer from refusing to
28hire or discharging an employee who, because of the employee’s
29medical condition, is unable to perform his or her essential duties
30even with reasonable accommodations, or cannot perform those
31duties in a manner that would not endanger the employee’s health
32or safety or the health or safety of others even with reasonable
33accommodations. Nothing in this part shall subject an employer
34to any legal liability resulting from the refusal to employ or the
35discharge of an employee who, because of the employee’s medical
P3    1condition, is unable to perform his or her essential duties, or cannot
2perform those duties in a manner that would not endanger the
3employee’s health or safety or the health or safety of others even
4with reasonable accommodations.

5(3) Nothing in this part relating to discrimination on account of
6marital status shall do either of the following:

7(A) Affect the right of an employer to reasonably regulate, for
8reasons of supervision, safety, security, or morale, the working of
9spouses in the same department, division, or facility, consistent
10with the rules and regulations adopted by the commission.

11(B) Prohibit bona fide health plans from providing additional
12or greater benefits to employees with dependents than to those
13employees without or with fewer dependents.

14(4) Nothing in this part relating to discrimination on account of
15sex shall affect the right of an employer to use veteran status as a
16factor in employee selection or to give special consideration to
17Vietnam-era veterans.

18(5) (A) This part does not prohibit an employer from refusing
19to employ an individual because of his or her age if the law
20compels or provides for that refusal. Promotions within the existing
21staff, hiring or promotion on the basis of experience and training,
22rehiring on the basis of seniority and prior service with the
23employer, or hiring under an established recruiting program from
24high schools, colleges, universities, or trade schools do not, in and
25of themselves, constitute unlawful employment practices.

26(B) The provisions of this part relating to discrimination on the
27basis of age do not prohibit an employer from providing health
28benefits or health care reimbursement plans to retired persons that
29are altered, reduced, or eliminated when the person becomes
30eligible for Medicare health benefits. This subparagraph applies
31to all retiree health benefit plans and contractual provisions or
32practices concerning retiree health benefits and health care
33reimbursement plans in effect on or after January 1, 2011.

34(b) For a labor organization, because of the race, religious creed,
35color, national origin, ancestry, physical disability, mental
36disability, medical condition, genetic information, marital status,
37sex, gender, gender identity, gender expression, age, sexual
38orientation, or military and veteran status of any person, to exclude,
39expel, or restrict from its membership the person, or to provide
40only second-class or segregated membership or to discriminate
P4    1against any person because of the race, religious creed, color,
2national origin, ancestry, physical disability, mental disability,
3medical condition, genetic information, marital status, sex, gender,
4gender identity, gender expression, age, sexual orientation, or
5military and veteran status of the person in the election of officers
6of the labor organization or in the selection of the labor
7organization’s staff or to discriminate in any way against any of
8its members or against any employer or against any person
9employed by an employer.

10(c) For any person to discriminate against any person in the
11begin delete selection orend deletebegin insert selection, termination,end insert trainingbegin insert, or other terms or
12treatmentend insert
of that person in any apprenticeship training program
13begin delete orend deletebegin insert,end insert any other training program leading tobegin delete employment, includingend delete
14begin insert employment,end insert an unpaid internship,begin insert or any other program to provide
15unpaid experience for that person in the workplace or industryend insert

16 because of the race, religious creed, color, national origin, ancestry,
17physical disability, mental disability, medical condition, genetic
18information, marital status, sex, gender, gender identity, gender
19expression, age, sexual orientation, or military and veteran status
20of the person discriminated against.

21(d) For any employer or employment agency to print or circulate
22or cause to be printed or circulated any publication, or to make
23any nonjob-related inquiry of an employee or applicant, either
24verbal or through use of an application form, that expresses,
25directly or indirectly, any limitation, specification, or discrimination
26as to race, religious creed, color, national origin, ancestry, physical
27disability, mental disability, medical condition, genetic information,
28marital status, sex, gender, gender identity, gender expression,
29age, sexual orientation, or military and veteran status, or any intent
30to make any such limitation, specification, or discrimination. This
31part does not prohibit an employer or employment agency from
32inquiring into the age of an applicant, or from specifying age
33limitations, where the law compels or provides for that action.

34(e) (1) Except as provided in paragraph (2) or (3), for any
35employer or employment agency to require any medical or
36psychological examination of an applicant, to make any medical
37or psychological inquiry of an applicant, to make any inquiry
38whether an applicant has a mental disability or physical disability
39or medical condition, or to make any inquiry regarding the nature
P5    1or severity of a physical disability, mental disability, or medical
2condition.

3(2) Notwithstanding paragraph (1), an employer or employment
4agency may inquire into the ability of an applicant to perform
5job-related functions and may respond to an applicant’s request
6for reasonable accommodation.

7(3) Notwithstanding paragraph (1), an employer or employment
8agency may require a medical or psychological examination or
9make a medical or psychological inquiry of a job applicant after
10an employment offer has been made but prior to the
11commencement of employment duties, provided that the
12examination or inquiry is job related and consistent with business
13necessity and that all entering employees in the same job
14 classification are subject to the same examination or inquiry.

15(f) (1) Except as provided in paragraph (2), for any employer
16or employment agency to require any medical or psychological
17examination of an employee, to make any medical or psychological
18inquiry of an employee, to make any inquiry whether an employee
19has a mental disability, physical disability, or medical condition,
20or to make any inquiry regarding the nature or severity of a physical
21disability, mental disability, or medical condition.

22(2) Notwithstanding paragraph (1), an employer or employment
23agency may require any examinations or inquiries that it can show
24to be job related and consistent with business necessity. An
25employer or employment agency may conduct voluntary medical
26examinations, including voluntary medical histories, which are
27part of an employee health program available to employees at that
28worksite.

29(g) For any employer, labor organization, or employment agency
30to harass, discharge, expel, or otherwise discriminate against any
31person because the person has made a report pursuant to Section
3211161.8 of the Penal Code that prohibits retaliation against hospital
33employees who report suspected patient abuse by health facilities
34or community care facilities.

35(h) For any employer, labor organization, employment agency,
36or person to discharge, expel, or otherwise discriminate against
37any person because the person has opposed any practices forbidden
38under this part or because the person has filed a complaint, testified,
39or assisted in any proceeding under this part.

P6    1(i) For any person to aid, abet, incite, compel, or coerce the
2doing of any of the acts forbidden under this part, or to attempt to
3do so.

4(j) (1) For an employer, labor organization, employment agency,
5apprenticeship training program or any training program leading
6to employment, or any other person, because of race, religious
7creed, color, national origin, ancestry, physical disability, mental
8disability, medical condition, genetic information, marital status,
9sex, gender, gender identity, gender expression, age, sexual
10orientation, or military and veteran status, to harass an employee,
11an applicant, an unpaidbegin delete intern,end deletebegin insert intern or volunteer,end insert or a person
12providing services pursuant to a contract. Harassment of an
13employee, an applicant, an unpaidbegin delete intern,end deletebegin insert intern or volunteer,end insert or
14a person providing services pursuant to a contract by an employee,
15other than an agent or supervisor, shall be unlawful if the entity,
16or its agents or supervisors, knows or should have known of this
17conduct and fails to take immediate and appropriate corrective
18action. An employer may also be responsible for the acts of
19nonemployees, with respect to sexual harassment of employees,
20applicants, unpaidbegin delete interns,end deletebegin insert interns or volunteers,end insert or persons
21providing services pursuant to a contract in the workplace, where
22the employer, or its agents or supervisors, knows or should have
23known of the conduct and fails to take immediate and appropriate
24corrective action. In reviewing cases involving the acts of
25nonemployees, the extent of the employer’s control and any other
26legal responsibility that the employer may have with respect to the
27conduct of those nonemployees shall be considered. An entity shall
28take all reasonable steps to prevent harassment from occurring.
29Loss of tangible job benefits shall not be necessary in order to
30establish harassment.

31(2) The provisions of this subdivision are declaratory of existing
32law, except for the new duties imposed on employers with regard
33to harassment.

34(3) An employee of an entity subject to this subdivision is
35personally liable for any harassment prohibited by this section that
36is perpetrated by the employee, regardless of whether the employer
37or covered entity knows or should have known of the conduct and
38fails to take immediate and appropriate corrective action.

39(4) (A) For purposes of this subdivision only, “employer” means
40any person regularly employing one or more persons or regularly
P7    1receiving the services of one or more persons providing services
2pursuant to a contract, or any person acting as an agent of an
3employer, directly or indirectly, the state, or any political or civil
4subdivision of the state, and cities. The definition of “employer”
5in subdivision (d) of Section 12926 applies to all provisions of this
6section other than this subdivision.

7(B) Notwithstanding subparagraph (A), for purposes of this
8subdivision, “employer” does not include a religious association
9or corporation not organized for private profit, except as provided
10in Section 12926.2.

11(C) For purposes of this subdivision, “harassment” because of
12sex includes sexual harassment, gender harassment, and harassment
13based on pregnancy, childbirth, or related medical conditions.
14Sexually harassing conduct need not be motivated by sexual desire.

15(5) For purposes of this subdivision, “a person providing services
16pursuant to a contract” means a person who meets all of the
17following criteria:

18(A) The person has the right to control the performance of the
19contract for services and discretion as to the manner of
20performance.

21(B) The person is customarily engaged in an independently
22established business.

23(C) The person has control over the time and place the work is
24performed, supplies the tools and instruments used in the work,
25and performs work that requires a particular skill not ordinarily
26used in the course of the employer’s work.

27(k) For an employer, labor organization, employment agency,
28apprenticeship training program, or any training program leading
29to employment, to fail to take all reasonable steps necessary to
30prevent discrimination and harassment from occurring.

31(l) (1) For an employer or other entity covered by this part to
32refuse to hire or employ a person or to refuse to select a person
33for a training program leading to employment or to bar or to
34discharge a person from employment or from a training program
35leading to employment, or to discriminate against a person in
36compensation or in terms, conditions, or privileges of employment
37because of a conflict between the person’s religious belief or
38observance and any employment requirement, unless the employer
39or other entity covered by this part demonstrates that it has explored
40any available reasonable alternative means of accommodating the
P8    1religious belief or observance, including the possibilities of
2excusing the person from those duties that conflict with his or her
3religious belief or observance or permitting those duties to be
4performed at another time or by another person, but is unable to
5reasonably accommodate the religious belief or observance without
6undue hardship, as defined in subdivision (u) of Section 12926,
7on the conduct of the business of the employer or other entity
8covered by this part. Religious belief or observance, as used in
9this section, includes, but is not limited to, observance of a Sabbath
10or other religious holy day or days, reasonable time necessary for
11travel prior and subsequent to a religious observance, and religious
12dress practice and religious grooming practice as described in
13subdivision (q) of Section 12926.begin insert This subdivision shall also apply
14to an apprenticeship training program, an unpaid internship, and
15any other program to provide unpaid experience for a person in
16the workplace or industry.end insert

17(2) An accommodation of an individual’s religious dress practice
18or religious grooming practice is not reasonable if the
19accommodation requires segregation of the individual from other
20employees or the public.

21(3) An accommodation is not required under this subdivision
22if it would result in a violation of this part or any other law
23prohibiting discrimination or protecting civil rights, including
24subdivision (b) of Section 51 of the Civil Code and Section 11135
25of this code.

26(m) For an employer or other entity covered by this part to fail
27to make reasonable accommodation for the known physical or
28mental disability of an applicant or employee. Nothing in this
29subdivision or in paragraph (1) or (2) of subdivision (a) shall be
30construed to require an accommodation that is demonstrated by
31the employer or other covered entity to produce undue hardship,
32as defined in subdivision (u) of Section 12926, to its operation.

33(n) For an employer or other entity covered by this part to fail
34to engage in a timely, good faith, interactive process with the
35employee or applicant to determine effective reasonable
36accommodations, if any, in response to a request for reasonable
37accommodation by an employee or applicant with a known physical
38or mental disability or known medical condition.

P9    1(o) For an employer or other entity covered by this part, to
2subject, directly or indirectly, any employee, applicant, or other
3person to a test for the presence of a genetic characteristic.

4(p) Nothing in this section shall be interpreted as preventing the
5ability of employers to identify members of the military or veterans
6for purposes of awarding a veteran’s preference as permitted by
7law.



O

    98