BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 400 (Jackson)
As Amended April 16, 2013
Hearing Date: April 23, 2013
Fiscal: Yes
Urgency: No
TW
SUBJECT
Employment Protections: Victims of Domestic Violence, Sexual
Assault, or Stalking
DESCRIPTION
Existing law provides discrimination and retaliation protections
for employees who are victims of domestic violence or sexual
assault and take time off from work to obtain court ordered
relief. This bill would extend these protections to stalking
victims. This bill would also provide discrimination and
retaliation protections for employees whose victim status is
known by the employer (whether or not they take time off to seek
court assistance). This bill would also require an employer to
provide reasonable safety accommodations for the victim
employee, and protect the employee from discrimination or
retaliation who requests the accommodation. This bill would
authorize a victim employee, who is discriminated or retaliated
against for requesting a safety accommodation, to file a civil
action and would authorize an award of reinstatement, back
wages, and attorney's fees.
Existing law also provides discrimination and retaliation
protections for employees of employers with 25 or more employees
and who are victims of domestic violence or sexual assault and
take time off work to seek medical attention, obtain various
counseling services, and relocate. This bill would extend these
protections to victims of stalking. This bill also would
authorize an award of equitable relief and attorney's fees to
the prevailing employee.
BACKGROUND
(more)
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In 1999, the Legislature prohibited discrimination and
retaliation against employees who are victims of domestic
violence and who take time off to appear in court to obtain, or
attempt to obtain, judicial relief to help ensure the health,
safety, or welfare of a domestic violence victim or his or her
child. (See SB 56 (Solis, Ch. 340, Stats. 1999).) Prior to the
enactment of SB 56, domestic violence victims were often forced
to choose either economic security (stay at work and forego
obtaining legal protection) or personal safety (leave work, at
the risk of being terminated, to appear in court as a witness or
to obtain relief to guarantee their safety and the safety of
their children).
The next year, the Victims of Domestic Violence Employment Leave
Act (AB 2357 (Honda, Ch. 487, Stats. 2000)) provided
discrimination and retaliation protections for employees who are
victims of domestic violence and take leave from work to seek
medical attention or other services related to their abuse. In
2002, AB 2195 (Corbett, Ch. 275, Stats. 2002) extended these
protections to employees who are victims of sexual assault.
This bill would further extend discrimination and retaliation
protections to employees who are victims of stalking. This bill
would also require employers to make reasonable accommodations
for employees who are victims of domestic violence, sexual
assault, and stalking, as specified. This bill would also
provide civil relief for employees who have been discriminated
or retaliated against in violation of these provisions.
Prior attempts at providing discrimination protections for
victims of stalking include SB 1745 (Kuehl, 2006), which, under
the Civil Code, would have declared it against public policy for
an employer to harass or discriminate against an individual
because the person is a victim of domestic violence, sexual
assault, or stalking. SB 1745 passed out of this Committee on a
vote of 3-1, and was vetoed by Governor Schwarzenegger because
he believed that the precise employee rights and employer
obligations were not defined, and that the combination of
existing law and the provisions of SB 1745 would place employers
in an untenable position.
AB 1740 (Perez, 2012) was substantially similar to this bill and
would have prohibited employers from discriminating against
employees who are victims of domestic violence, sexual assault,
or stalking and would have allowed employees to request
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reasonable accommodations to ensure their safety in the
workplace. AB 1740 was held in the Assembly Appropriations
Committee.
This bill passed out of the Senate Labor and Industrial
Relations Committee on April 10 on a vote of 4-1.
CHANGES TO EXISTING LAW
1. Existing law prohibits an employer from discharging or in any
manner discriminating or retaliating against an employee who
is a victim of domestic violence or sexual assault for taking
time off from work to obtain or attempt to obtain any relief,
including, but not limited to, a temporary restraining order,
restraining order, or other injunctive relief, to help ensure
the health, safety, or welfare of the victim or his or her
child. (Lab. Code Sec. 230(c).)
Existing law requires, as a condition of taking time off work
as described above, the employee shall give the employer
reasonable advance notice of the employee's intention to take
time off, unless the advance notice is not feasible. When an
unscheduled absence occurs, the employer shall not take any
action against the employee if the employee, within a
reasonable time after the absence, provides a certification to
the employer in the form of any of the following:
a police report indicating that the employee was a
victim of domestic violence or sexual assault;
a court order protecting or separating the employee from
the perpetrator of an act of domestic violence, sexual
assault, or other evidence from the court or prosecuting
attorney that the employee has appeared in court; or
documentation from a medical professional, domestic
violence advocate or advocate for victims of sexual
assault, health care provider, or counselor that the
employee was undergoing treatment for physical or mental
injuries or abuse resulting in victimization from an act of
domestic violence or sexual assault. (Lab. Code Sec.
230(d).)
Existing law provides an administrative complaint process for
employees who are victims of domestic violence or sexual
assault who have been discriminated or retaliated against for
seeking judicial relief. (Lab. Code Sec. 230(f).)
Existing law provides that any employee who is discharged,
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threatened with discharge, demoted, suspended, or in any other
manner discriminated or retaliated against in the terms and
conditions of employment by his or her employer because the
employee has taken time off to pursue judicial relief related
to domestic violence or sexual assault shall be entitled to
reinstatement and reimbursement for lost wages and work
benefits caused by the acts of the employer. An employer who
willfully refuses to rehire, promote, or otherwise restore an
employee or former employee who has been determined to be
eligible for rehiring or promotion by a grievance procedure or
hearing authorized by law is guilty of a misdemeanor. (Lab.
Code Sec. 230(e).)
This bill would extend the above protections to an employee
who is a victim of stalking.
This bill would define "stalking" to mean the definitions used
in the Civil and Penal Codes.
This bill would further prohibit an employer from discharging
or in any manner discriminating or retaliating against an
employee because of the employee's known status as a victim of
domestic violence, sexual assault, or stalking.
This bill would require an employer to provide reasonable
accommodations for a victim of domestic violence, sexual
assault, or stalking who requests an accommodation for the
safety of the victim while at work.
This bill would provide that reasonable accommodations may
include the implementation of safety measures, including a
transfer, reassignment, modified schedule, changed work
telephone, changed work station, installed lock, assistance in
documenting domestic violence, sexual assault, or stalking
that occurs in the workplace, an implemented safety procedure,
or another adjustment to a job structure, workplace facility,
or work requirement in response to domestic violence, sexual
assault, or stalking, or referral to a victim assistance
organization.
This bill would provide that an employer is not required to
provide a reasonable accommodation to an employee who has not
disclosed his or her status as a victim of domestic violence,
sexual assault, or stalking.
This bill would require the employer to engage in a timely,
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good faith, and interactive process with the employee to
determine effective reasonable accommodations.
This bill would provide that in determining whether the
accommodation is reasonable, the employer shall consider an
exigent circumstance or danger facing the employee.
This bill would not require the employer to undertake an
action that constitutes an undue hardship on the employer's
business operations, as defined under the Fair Employment and
Housing Act.
This bill would provide that upon the request of an employer,
an employee requesting a reasonable accommodation shall
provide the employer with a written statement signed by the
employee or an individual acting on the employee's behalf,
certifying that the accommodation is for an authorized
purpose.
This bill would authorize an employer to request certification
from an employee requesting an accommodation that demonstrates
the employee's status as a victim of domestic violence, sexual
assault, or stalking, and allow an employer who requests
certification to request recertification of an employee's
status as a victim of domestic violence, sexual assault, or
stalking every six months.
This bill would provide that any verbal or written statement,
police or court record, or other documentation provided to an
employer identifying an employee as a victim of domestic
violence, sexual assault, or stalking shall be maintained as
confidential by the employer and shall not be disclosed by the
employer except as required by federal or state law or as
necessary to protect the employee's safety in the workplace.
The employee shall be given notice before any authorized
disclosure.
This bill would prohibit an employer from retaliating against
a victim of domestic violence, sexual assault, or stalking for
requesting a reasonable accommodation, regardless of whether
the request was granted.
This bill will also provide these employees, in addition to
stalking victim employees and employees who have been
discriminated or retaliated against for seeking a reasonable
accommodation, with the ability to bring a civil action in the
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superior court of the appropriate county to enforce those
provisions. This bill would provide that, if the employee
prevails in an action pursuant to this subdivision, the court
may award reasonable attorney's fees and costs.
This bill would provide that, when an employee, who is
discriminated or retaliated against by his or her employer
because the employee has sought judicial relief related to
domestic violence, sexual assault, or stalking, or because the
employees known status as a victim of domestic violence,
sexual assault, or stalking, or because the employee has
requested or received a reasonable accommodation, the employee
is entitled to reinstatement and reimbursement for lost wages
and work benefits caused by the acts of the employer, as well
as appropriate equitable relief. This bill would continue the
existing misdemeanor provision and apply it to claims based on
stalking or accommodation.
2. Existing law prohibits an employer with 25 or more employees
from discharging or in any manner discriminating or
retaliating against an employee, who is a victim of domestic
violence or sexual assault and takes time off work:
to seek medical attention for injuries caused by
domestic violence or sexual assault;
to obtain services from a domestic violence shelter,
program, or rape crisis center as a result of domestic
violence or sexual assault;
to obtain psychological counseling related to an
experience of domestic violence or sexual assault; or
to participate in safety planning and take other actions
to increase safety from future domestic violence or sexual
assault, including temporary or permanent relocation.
(Lab. Code Sec. 230.1(a).)
Existing law provides that as a condition of taking time off
for these purposes, the employee shall give the employer
reasonable advance notice of the employee's intention to take
time off, unless the advance notice is not feasible. When an
unscheduled absence occurs, the employer is prohibited from
taking any action against the employee if the employee, within
a reasonable time after the absence, provides a certification,
as specified, to the employer. (Lab. Code Sec. 230.1(b).)
Existing law requires an employer to maintain the
confidentiality of the victim employee requesting leave under
this provision. (Lab. Code Sec. 230.1(b)(3).)
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Existing law provides that an employee who is discriminated or
retaliated against by an employer because the employee has
taken time off, as specified, is entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the
acts of the employer. Further, an employer who willfully
refuses to rehire, promote, or otherwise restore an employee
or former employee who has been determined to be eligible for
rehiring or promotion by a grievance procedure or hearing
authorized by law is guilty of a misdemeanor. (Lab. Code Sec.
230.1(c).)
This bill would extend these protections to victims of
stalking.
This bill would make conforming changes to certification and
confidentiality requirements.
This bill would provide that, in addition to reinstatement and
reimbursement for lost wages and work benefits caused by the
acts of the employer, the employee shall also be entitled to
appropriate equitable relief.
This bill would authorize the court to award reasonable
attorney's fees and costs to the prevailing employee.
COMMENT
1. Stated need for the bill
The author writes:
Existing law does not expressly prohibit employment
discrimination based on an employee's status as a survivor of
domestic violence, sexual assault, or stalking. Nor does it
provide the right to simple accommodations such as a new
office extension number or allowing an employee to take unpaid
time off from work for a court appearance. These
accommodations are often necessary to enable victims to
maintain employment, and consequently, economic independence
at a time when it is of utmost importance.
Several states - New York, Oregon, Rhode Island, Hawaii,
Illinois and Connecticut, as well as Puerto Rico - have
enacted laws similar to those proposed by SB 400.
Additionally, the Federal Government recently issued
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guidelines directing federal agencies to implement
non-discrimination and safety accommodation policies to
protect employees who are survivors of domestic violence,
sexual assault, or stalking.
By implementing SB 400, California would join other states and
the federal government in ensuring that victims are able to
maintain their jobs while staying safe.
2. Extending discrimination and retaliation protections to
domestic violence, sexual assault, and stalking victims
Existing law provides discrimination and retaliation protections
for employees who are victims of domestic violence or sexual
assault and take time off from work to obtain judicial relief or
to seek medical attention, obtain various counseling services,
and relocate. This bill would extend these protections to
stalking victims. This bill would also provide discrimination
and retaliation protections for employees whose victim status is
known by the employer (whether or not they take time off to seek
court assistance).
According to the author, "[t]he effects of domestic violence,
sexual assault, and stalking jeopardize a victim's safety and
stable source of income. Studies show alarming rates of job
loss and other problems at work due to abuse. A 2011 study by
the Legal Aid Society- Employment Law Center, sponsor of SB 400,
found that nearly 40 [percent] of survivors in California
reported either being fired or fearing termination due to
domestic violence. A U.S. General Accounting Office study found
that close to 50 [percent] of sexual assault victims lost their
jobs or were forced to quit following their assault."
Worksafe, in support, argues that "no law currently exists that
specifically prohibits employers from taking adverse employment
actions against victims of domestic violence, sexual assault, or
stalking. Additionally, no statute requires employers to
provide reasonable safety accommodations to victims. Worksafe
is particularly supportive of this aspect of the bill, as it
seeks to protect workers' health and safety in the workplace,
while providing a measure of protection against losing
employment. The guarantees proposed by SB 400 are integral to
ensuring that victims continue to have as much stability as
possible as they address these difficult issues in their life."
Notably, the discrimination and retaliation protections in
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existing law, which enable employees who are domestic violence
or sexual assault victims to continue working, were established
to allow working individuals the ability to take advantage of
the protections of the civil and criminal justice system.
Extending these protections to victims of stalking and providing
employees with discrimination and retaliation protections based
on their known status as a victim of domestic violence, sexual
assault, or stalking, regardless of whether they take leave from
work to seek judicial relief or medical or other services, is a
common-sense step toward maintaining the protections provided
under existing law.
3. Reasonable accommodation
This bill would also require an employer to provide reasonable
safety accommodations for the victim employee, and prohibit
discrimination or retaliation against an employee who requests
an accommodation.
In support of the reasonable accommodation requirement in this
bill, Williams-Sonoma, Inc. states:
Domestic violence, sexual assault, and stalking often follow
victims to the workplace, jeopardizing their safety at work
and that of their colleagues, and impacting their ability to
earn a steady income. At Williams-Sonoma, Inc., we have
committed to provide reasonable accommodations such as
changing a telephone extension, implementing a workplace
safety plan, or offering shift changes to survivors of
domestic violence, sexual assault and stalking. We also
ensure that victims are not discriminated against based on the
abuse they have suffered, and we do our best to maintain the
confidentiality of any associate who identifies as a victim
and seeks assistance or accommodation.
We believe by implementing these policies we have improved the
safety of all our associates, strengthened our ability to
prevent violence in the workplace, affirmed our commitment to
maintain an environment where all working parents can thrive,
and advanced our mission to enhance our customers' and our
associates' lives at home.
Existing law, the Fair Employment and Housing Act (FEHA),
prohibits an employer from discriminating against employees or
job applicants with disabilities and requires an employer to
engage in an interactive process with a qualified individual to
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explore reasonable accommodations that would allow the employee
or applicant to perform the essential functions of his or her
job. (Gov. Code Sec. 19240.) FEHA also provides that an
employer is not required to make an accommodation that is
demonstrated by the employer to produce undue hardship to its
operation. (Gov. Code Sec. 12940(m).)
An "undue hardship" is defined as an action requiring
significant difficulty or expense, when considered in light of
the following factors:
the nature and cost of the accommodation needed;
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;
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;
the type of operations, including the composition, structure,
and functions of the workforce of the entity; and
the geographic separateness, administrative, or fiscal
relationship of the facility or facilities. (Gov. Code Sec.
12926(t).)
Notably, this bill would not require an employer to undertake an
action that would constitute an undue hardship on the employer's
business operations. This bill would use the definition above
to define "undue hardship," which has been the standard used by
employees, employers, and courts for interpreting "reasonable
accommodation" for over 20 years. Accordingly, this bill would
maintain an appropriate balance between protecting employees who
are victims of domestic violence, sexual assault, and stalking
and protecting an employer from litigation resulting from
unreasonable accommodation demands.
4. New civil action and remedies
Existing law provides an administrative complaint process for
employees who are victims of domestic violence or sexual assault
who have been discriminated or retaliated against for seeking
judicial relief. (Lab. Code Sec. 230(f).) This bill would
authorize an employee to also file a civil action against the
employer who discriminates or retaliates against or fails to
provide a reasonable accommodation to an employee who has taken
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leave from work to seek judicial relief or who is known to the
employer to be a victim of domestic violence, sexual assault, or
stalking. This bill would also authorize a victim employee, who
is discriminated or retaliated against for requesting a safety
accommodation, to file a civil action and, in addition to
existing remedies of reinstatement, back wages, would authorize
an award of attorney's fees to the prevailing employee.
Further, existing law provides discrimination and retaliation
protections for employees who are victims of domestic violence
or sexual assault and take time off work to seek medical
attention, obtain various counseling services, and relocate.
(Lab. Code Sec. 230.1.) This bill would authorize an award of
equitable relief and attorney's fees to the prevailing employee
in any action alleging a violation of that provision.
The author argues that these provisions are necessary to ensure
that employees who are victims of domestic abuse, sexual
assault, and stalking are able to maintain their jobs while
staying safe. The author asserts that "[f]iring an employee who
discloses that she/he is a victim of domestic or sexual violence
or stalking undermines the economic independence and safety of
survivors, and discourages the reporting of safety concerns in
the workplace for fear of retribution."
Arguably, an employer who is aware of a safety danger to the
victim employee will be able to better protect other employees
from harm. Further, the Legislature, by enacting the existing
prohibitions on victim discrimination and retaliation, has
already recognized that providing these victims with statutory
protections is an important public policy. This bill, by
authorizing the employee to file a civil action, enhanced
remedies, and an award of attorney's fees to the prevailing
plaintiff, would provide additional deterrents to employer
discrimination and retaliation.
5. Victim discrimination and retaliation statutes in other
states
The author notes the following statutes have already been
enacted to provide enhanced employee protections for victims of
domestic abuse, sexual assault, and stalking:
Connecticut state law prohibits an employer from firing,
penalizing or threatening an employee for attending or
participating in a court proceeding related to a civil case in
which the employee is a victim of family violence, including
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an incident resulting in physical harm, bodily injury or
assault, or an act of threatened violence that constitutes
fear of imminent physical harm, bodily injury or assault
between family or household members. Connecticut state law
also prohibits an employer from firing, penalizing or
threatening an employee because "the employee is a victim of
family violence." Connecticut state law also requires
employers to give employee victims of family violence up to
twelve days of unpaid leave during a calendar year, in
addition to other leave provided under state and federal law,
to seek medical care or psychological counseling, obtain
services from a domestic violence assistance organization,
victim relocation or participate in criminal proceedings
related to or resulting from family violence. ((Public Act
No. 10-144), amending Conn. Gen. Statute section 54-85(b).)
Hawaii's Revised Statutes (Section 378-2) include domestic or
sexual violence victim status in its anti-discrimination labor
laws and requires employers to make reasonable accommodations
for victims of domestic or sexual violence, including, but not
limited to, changing contact information such as telephone
number or email address, screening the employee's telephone
calls, changing the work location for the employee, installing
locks and other security devices and allowing the employee to
work flexible hours. Hawaii state law also allows employers
to request that the employee verify that he or she is a victim
of domestic or sexual violence by providing a written
statement from the employee, or other sources including,
police or court records.
Oregon Rev. Stat. section 659A.290 prohibits employment
discrimination against victims of domestic violence, sexual
assault, and stalking. Oregon law also requires employers to
provide leave to victims of these crimes, as well as
reasonable safety accommodations.
New York Human Rights Law section 296 prohibits employment
discrimination based on domestic violence victim status.
Illinois Compiled Statutes (Section 820, ILCS 180/15)
prohibits employer discrimination based on an employee's
status as a victim of domestic or sexual violence. Illinois
State law also entitles employed victims of domestic or sexual
violence and employees with a family or household member who
is a victim to take unpaid leave to seek medical help, legal
assistance, counseling, safety planning, and other assistance
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without penalty from their employers. The state's law also
protects employees from discharge and harassment when, in
response to actual or threatened domestic or sexual violence,
they request an adjustment to their job structure, workplace
facility, work requirement, including a transfer,
reassignment, or modified schedule, leave, a changed telephone
number or seating assignment, installation of a lock or
implementation of a safety procedure.
Further, the Sargent Shriver National Center on Poverty Law,
based in Illinois, argues in support of this bill:
In 2003 then Illinois State Senator Barack Obama partnered
with the Shriver Center to pass the Victims' Economic Security
and Safety Act, or VESSA, the most comprehensive set of
employment protections for employees coping with domestic and
sexual violence in the country. . . . The importance of
anti-discrimination and accommodation provisions is real.
Since enactment in 2003, the Illinois Department of Labor has
had a total of 174 complaints filed. The majority of
complaints (98) are related to discrimination, 31 are related
to leave, and 33 are a combination of leave and
discrimination. It has been my experience that most cases are
settled before a formal complaint is ever filed because many
of the reported problems stem from the employer's lack of
knowledge about the law rather than the resistance to the law.
While more outreach to and education for both employers and
employees would always be helpful, I can confidently state
that since its enactment, VESSA has been a valuable tool; it
has prevented employees from getting fired simply because they
are survivors, and it has afforded survivors the opportunity
to stay employed and escape violence.
6. Opposition concerns
Opponents argue that this bill would create confusion for
employers and force them into a judicial role to determine when
a crime has occurred that triggers the requirements of this bill
and raises questions about how to determine what is a reasonable
accommodation in these situations or how long the accommodation
must be provided. Opponents further argue that there is no
evidence to suggest that existing law is insufficient to help
these employees, or that the additional protections in this bill
are necessary, especially in comparison to the significant
burden and cost of litigation the bill would create for
employers.
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Opponents are also concerned that this bill would "require
employers to inquire into an employee's personal life, outside
of work, thereby placing them in a legal predicament."
Opponents argue that the Labor Code precludes employers from
taking any action based upon off-duty conduct, and the
California Constitution recognizes that employees have a legal
right to privacy in their personal lives and relationships.
Further, opponents argue that this bill would prohibit an
employer from discriminating against an employee of domestic
abuse, stalking, or sexual assault if the employer knows of the
employee's protected status. Opponents assert that "[c]ourts
have interpreted a 'knowledge' standard to mean not only actual
knowledge, but also constructive knowledge. . . . Accordingly,
employers will be potentially forced to choose between: (1) a
claim of discrimination under SB 400 by failing to have known or
inferred that the employee is a victim of domestic abuse, sexual
assault, or stalking; or (2) a claim for invasion of privacy and
violation of the labor code, because the employer inquired into
the employee's off-duty personal life."
In response to these concerns, the author argues that, with
respect to an employer having to play a judicial role to
determine whether a crime has been committed that triggers this
bill, the employer will still be able to request documentation
of the employee's victim status. Employers are not required to
collect their own evidence and can rely upon the documentation
provided, making the determination no more of a daunting task
than when relying upon documentation from a doctor with regards
to a physical disability. Further, in claiming discrimination
or retaliation under this bill, the employee would bear the
burden of proving the employer had knowledge of the employee's
status.
With respect to determining a reasonable accommodation, the
author asserts that this bill provides an interactive process
between the employer and employee to determine the reasonable
accommodation. Further, an employer would not be required to
provide an accommodation that creates an undue burden on the
employer. As for the extent of time the employer must provide
the accommodation, this bill would authorize the employer to
request further documentation of the employee's status every six
months.
As for the opposition's argument that existing law already
protects victims of domestic abuse, sexual assault, and
stalking, the author argues that the protections in current law
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do not protect employees from being terminated for their status
as a survivor, and do not provide for reasonable accommodations.
This bill would directly address these needs, which have been
acknowledged and addressed by several states and the federal
government.
Additionally, opponents contend that this bill puts employers in
a difficult legal predicament between respecting employee
off-duty privacy and collecting sufficient information to
determine if an employee is a victim, as classified under SB
400. The author notes that the bill language demonstrates that
the responsibility to disclose is with the survivor. This both
helps protect the employer from the concerns mentioned above and
also protects the privacy of the survivor to disclose
information regarding her status as a victim under her
discretion.
Further, the author disagrees with the contention that this will
place a "significant burden" on employers. This bill already
includes language that reasonable accommodation does not need to
be provided in cases where it would constitute an undue hardship
for the employer. The author further notes that there are a
number of resources that already exist for businesses planning
to implement programs to address domestic violence, sexual
assault or stalking and many corporations have already
proactively implemented supportive policies.
Lastly, with respect to the opponents' argument that this bill
would result in litigation costs, the author points to evidence
from the other states with existing protections indicates that
litigation is likely to be quite rare. In Illinois, only 174
employment complaints (an average of 17.4 per year) have been
filed with the Illinois Department of Labor since 2003.
Excluding the claims that only deal with leave, a protection
already provided under California law, the number of complaints
drops to 98 (or 9.8 per year). Hawaii also has a law providing
antidiscrimination and accommodations protections to victims of
domestic violence, sexual assault and stalking. Hawaii's
statute went into effect in 2012 and there were only 3
complaints of discrimination based on victim status filed with
the agency in that year. At similar rates, the author argues
that the number of cases in California would be extremely low.
7. Governor Schwarzenegger's veto of SB 1745
This bill is similar in concept to the enrolled version of SB
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1745 (Kuehl, 2006). In vetoing SB 1745, Governor Schwarzenegger
stated:
This bill would provide that it is contrary to the public
policy of the State to discriminate against a person in
employment because he or she is a victim of domestic violence,
sexual assault, or stalking. Although I support the intent to
ensure victims of these crimes have adequate protections, this
bill is too flawed to enact.
California employers are currently required to take reasonable
steps to provide a safe and secure workplace for all
employees, including a duty to adequately address the
potential for workplace violence. Because the precise
employee rights and employer obligations under this bill are
not defined, the combination of existing law and this bill
would place employers in an untenable position.
For instance, if an employer determines that removing an
employee from the workplace is necessary to provide a safe
workplace and keep other employees safe, the employer may very
well be sued for violation of the public policy established by
this bill. On the other hand, if the employer determines an
employee must be allowed to continue performing duties in the
workplace in order to comply with this bill, the employer may
face litigation arising from injuries sustained by other
employees if workplace violence occurs.
I am also concerned that this bill could lead employers, in an
effort to comply with the law, to violate an employees
privacy. Because the law is unclear whether an employer must
have specific knowledge that an employee is a victim in order
for the protections of this bill to apply, an employer may
feel compelled to inquire about the personal reasons why an
employee has missed worked or taken a prolonged absence. This
is not only an [undue] burden on employers but a possible
invasion of employees privacy rights.
However well intentioned or worthy of consideration, this bill
would create conditions that can only be resolved through the
courts at great expense to employers and employees alike.
Support : A Better Balance: The Work and Family Legal Center;
Alameda County Family Justice Center; American Civil Liberties
Union of California; Asian Pacific Islander Legal Outreach;
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California Communities United Institute; California Labor
Federation, AFL-CIO; California Latinas for Reproductive
Justice; California Police Chiefs Associations, Inc.; California
Rural Legal Assistance Foundation; California Women's Law
Center; Center for Domestic Peace; Centro Legal de la Raza;
Child Abuse Listening Mediation; Community United Against
Violence; Crime Victims United of California; Domestic Violence
Solutions for Santa Barbara County; Emergency Shelter Program;
Exelligence Learning Corporation; Futures Without Violence;
Hawaii State Coalition Against Domestic Violence; Interface
Children & Family Services; Jewish Family Service of Los
Angeles; La Casa de las Madres; Legal Aid Society of San Mateo
County; Legal Momentum - The Women's Legal Defense and Education
Fund; Mountain Crisis Services; Next Door Solutions to Domestic
Violence; Organizaci�n en California de L�deres Campesinas, Inc;
Peace Officers Research Association of California; Peace Over
Violence; Sargent Shriver National Center on Poverty Law; South
Asian Network; United Automotive Workers, Local 2865; U.S.
Women's Chamber of Commerce; Violence Prevent Coalition; Walnut
Avenue Women's Center; Western Center on Law & Poverty;
Williams-Sonoma, Inc.; Women's Crisis Support - Defensa de
Mujeres; Women's Employment Rights Clinic - Golden Gate
University School of Law; Women's Foundation of California;
Worksafe
Opposition : Associated General Contractors; California
Association of Joint Powers Authority; California Chamber of
Commerce; California Employment Law Council; California Grocers
Association; California Independent Grocers Association;
California League of Food Processors; California Manufacturers
and Technology Association; California Restaurant Association;
Chambers of Commerce Alliance Ventura & Santa Barbara Counties;
Civil Justice Association of California; National Federation of
Independent Business; South Bay Association of Chambers of
Commerce; Southwest California Legislative Council; Western
Electrical Contractors Association, Inc.
HISTORY
Source : California Coalition Against Sexual Assault; California
Partnership to End Domestic Violence; Legal Aid Society -
Employment Law Center
Related Pending Legislation : SB 288 (Lieu, 2013) would provide
a list of crimes for which a victim of such crimes could take
time off work to appear in court and be protected from employer
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discrimination or retaliation. SB 288 is currently in the
Senate Committee on Labor and Industrial Relations and set for
hearing on April 24, 2013.
Prior Legislation :
AB 1740 (Perez, 2012) See Background.
SB 1745 (Kuehl, 2006) See Background.
AB 2195 (Corbett, Ch. 275, Stats. 2002) See Background.
AB 2357 (Honda, Ch. 487, Stats. 2000) See Background.
SB 56 (Solis, Ch. 340, Stats. 1999) See Background.
Prior Vote : Senate Committee on Labor and Industrial Relations
(Ayes 4, Noes 1)
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