Amended in Assembly March 12, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 272


Introduced by Assembly Member Lackey

February 11, 2015


An act to amend Section 12926 of the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 272, as amended, Lackey. California Fair Employment and Housing Act.

Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of certain specified characteristics, including race, creed, or national origin. Existing law defines these characteristics and other terms for purposes of the act.

This bill wouldbegin delete make a nonsubstantive change to these definitions.end deletebegin insert define specified reserve or auxiliary public safety officers as “employees” for purposes of these provisions.end insert

Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: no.

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

P1    1

SECTION 1.  

Section 12926 of the Government Code is
2amended to read:

3

12926.  

As used in this part in connection with unlawful
4practices, unless a different meaning clearly appears from the
5context, the following terms have the following meanings:

P2    1(a) “Affirmative relief” or “prospective relief” includes the
2authority to order reinstatement of an employee, awards of backpay,
3reimbursement of out-of-pocket expenses, hiring, transfers,
4reassignments, grants of tenure, promotions, cease and desist
5orders, posting of notices, training of personnel, testing, expunging
6of records, reporting of records, and any other similar relief that
7is intended to correct unlawful practices under this part.

8(b) “Age” refers to the chronological age of any individual who
9has reached his or her 40th birthday.

10(c) “Employee”begin insert also includes a qualified person deputized or
11appointed by proper authority as a reserve or auxiliary sheriff or
12city police officer, a deputy sheriff, or a reserve police officer of
13a regional park district or a transit district, and is assigned specific
14police functions. end insert
begin insert“Employee”end insert does not include any individual
15employed by his or her parents, spouse, or child, or any individual
16employed under a special license in a nonprofit sheltered workshop
17or rehabilitation facility.

18(d) “Employer” includes any person regularly employing five
19or more persons, or any person acting as an agent of an employer,
20directly or indirectly, the state or any political or civil subdivision
21of the state, and cities, except as follows:

22“Employer” does not include a religious association or
23corporation not organized for private profit.

24(e) “Employment agency” includes any person undertaking for
25compensation to procure employees or opportunities to work.

26(f) “Essential functions” means the fundamental job duties of
27the employment position the individual with a disability holds or
28desires. “Essential functions” does not include the marginal
29functions of the position.

30(1) A job function may be considered essential for any of several
31reasons, including, but not limited to, any one or more of the
32following:

33(A) The function may be essential because the reason the
34position exists is to perform that function.

35(B) The function may be essential because of the limited number
36of employees available among whom the performance of that job
37function can be distributed.

38(C) The function may be highly specialized, so that the
39incumbent in the position is hired for his or her expertise or ability
40to perform the particular function.

P3    1(2) Evidence of whether a particular function is essential
2includes, but is not limited to, the following:

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

4(B) Written job descriptions prepared before advertising or
5interviewing applicants for the job.

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

7(D) The consequences of not requiring the incumbent to perform
8the function.

9(E) The terms of a collective bargaining agreement.

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

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

12(g) (1) “Genetic information” means, with respect to any
13individual, information about any of the following:

14(A) The individual’s genetic tests.

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

16(C) The manifestation of a disease or disorder in family members
17of the individual.

18(2) “Genetic information” includes any request for, or receipt
19of, genetic services, or participation in clinical research that
20 includes genetic services, by an individual or any family member
21of the individual.

22(3) “Genetic information” does not include information about
23the sex or age of any individual.

24(h) “Labor organization” includes any organization that exists
25and is constituted for the purpose, in whole or in part, of collective
26bargaining or of dealing with employers concerning grievances,
27terms or conditions of employment, or of other mutual aid or
28protection.

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

30(1) Any health impairment related to or associated with a
31diagnosis of cancer or a record or history of cancer.

32(2) Genetic characteristics. For purposes of this section, “genetic
33 characteristics” means either of the following:

34(A) Any scientifically or medically identifiable gene or
35chromosome, or combination or alteration thereof, that is known
36to be a cause of a disease or disorder in a person or his or her
37offspring, or that is determined to be associated with a statistically
38increased risk of development of a disease or disorder, and that is
39presently not associated with any symptoms of any disease or
40disorder.

P4    1(B) Inherited characteristics that may derive from the individual
2or family member, that are known to be a cause of a disease or
3disorder in a person or his or her offspring, or that are determined
4to be associated with a statistically increased risk of development
5of a disease or disorder, and that are presently not associated with
6any symptoms of any disease or disorder.

7(j) “Mental disability” includes, but is not limited to, all of the
8following:

9(1) Having any mental or psychological disorder or condition,
10such as intellectual disability, organic brain syndrome, emotional
11or mental illness, or specific learning disabilities, that limits a
12major life activity. For purposes of this section:

13(A) “Limits” shall be determined without regard to mitigating
14measures, such as medications, assistive devices, or reasonable
15accommodations, unless the mitigating measure itself limits a
16major life activity.

17(B) A mental or psychological disorder or condition limits a
18major life activity if it makes the achievement of the major life
19activity difficult.

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

22(2) Any other mental or psychological disorder or condition not
23described in paragraph (1) that requires special education or related
24services.

25(3) Having a record or history of a mental or psychological
26disorder or condition described in paragraph (1) or (2), which is
27known to the employer or other entity covered by this part.

28(4) Being regarded or treated by the employer or other entity
29covered by this part as having, or having had, any mental condition
30that makes achievement of a major life activity difficult.

31(5) Being regarded or treated by the employer or other entity
32covered by this part as having, or having had, a mental or
33psychological disorder or condition that has no present disabling
34effect, but that may become a mental disability as described in
35paragraph (1) or (2).

36“Mental disability” does not include sexual behavior disorders,
37compulsive gambling, kleptomania, pyromania, or psychoactive
38substance use disorders resulting from the current unlawful use of
39controlled substances or other drugs.

P5    1(k) “Military and veteran status” means a member or veteran
2of the United States Armed Forces, United States Armed Forces
3Reserve, the United States National Guard, and the California
4National Guard.

5(l) “On the bases enumerated in this part” means or refers to
6discrimination on the basis of one or more of the following: race,
7religious creed, color, national origin, ancestry, physical disability,
8mental disability, medical condition, genetic information, marital
9status, sex, age, sexual orientation, or military and veteran status.

10(m) “Physical disability” includes, but is not limited to, all of
11the following:

12(1) Having any physiological disease, disorder, condition,
13cosmetic disfigurement, or anatomical loss that does both of the
14following:

15(A) Affects one or more of the following body systems:
16neurological, immunological, musculoskeletal, special sense
17organs, respiratory, including speech organs, cardiovascular,
18reproductive, digestive, genitourinary, hemic and lymphatic, skin,
19and endocrine.

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

21(i) “Limits” shall be determined without regard to mitigating
22measures such as medications, assistive devices, prosthetics, or
23reasonable accommodations, unless the mitigating measure itself
24limits a major life activity.

25(ii) A physiological disease, disorder, condition, cosmetic
26disfigurement, or anatomical loss limits a major life activity if it
27makes the achievement of the major life activity difficult.

28(iii) “Major life activities” shall be broadly construed and
29includes physical, mental, and social activities and working.

30(2) Any other health impairment not described in paragraph (1)
31that requires special education or related services.

32(3) Having a record or history of a disease, disorder, condition,
33cosmetic disfigurement, anatomical loss, or health impairment
34described in paragraph (1) or (2), which is known to the employer
35or other entity covered by this part.

36(4) Being regarded or treated by the employer or other entity
37covered by this part as having, or having had, any physical
38condition that makes achievement of a major life activity difficult.

39(5) Being regarded or treated by the employer or other entity
40covered by this part as having, or having had, a disease, disorder,
P6    1condition, cosmetic disfigurement, anatomical loss, or health
2impairment that has no present disabling effect but may become
3a physical disability as described in paragraph (1) or (2).

4(6) “Physical disability” does not include sexual behavior
5disorders, compulsive gambling, kleptomania, pyromania, or
6psychoactive substance use disorders resulting from the current
7unlawful use of controlled substances or other drugs.

8(n) Notwithstanding subdivisions (j) and (m), if the definition
9of “disability” used in the federal Americans with Disabilities Act
10of 1990 (Public Law 101-336) would result in broader protection
11of the civil rights of individuals with a mental disability or physical
12disability, as defined in subdivision (j) or (m), or would include
13any medical condition not included within those definitions, then
14that broader protection or coverage shall be deemed incorporated
15by reference into, and shall prevail over conflicting provisions of,
16the definitions in subdivisions (j) and (m).

17(o) “Race, religious creed, color, national origin, ancestry,
18physical disability, mental disability, medical condition, genetic
19information, marital status, sex, age, sexual orientation, or military
20and veteran status” includes a perception that the person has any
21of those characteristics or that the person is associated with a
22person who has, or is perceived to have, any of those
23 characteristics.

24(p) “Reasonable accommodation” may include either of the
25following:

26(1) Making existing facilities used by employees readily
27accessible to, and usable by, individuals with disabilities.

28(2) Job restructuring, part-time or modified work schedules,
29reassignment to a vacant position, acquisition or modification of
30equipment or devices, adjustment or modifications of examinations,
31training materials or policies, the provision of qualified readers or
32interpreters, and other similar accommodations for individuals
33with disabilities.

34(q) “Religious creed,” “religion,” “religious observance,”
35“religious belief,” and “creed” include all aspects of religious
36belief, observance, and practice, including religious dress and
37grooming practices. “Religious dress practice” shall be construed
38broadly to include the wearing or carrying of religious clothing,
39head or face coverings, jewelry, artifacts, and any other item that
40is part of the observance by an individual of his or her religious
P7    1creed. “Religious grooming practice” shall be construed broadly
2to include all forms of head, facial, and body hair that are part of
3the observance by an individual of his or her religious creed.

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

5(A) Pregnancy or medical conditions related to pregnancy.

6(B) Childbirth or medical conditions related to childbirth.

7(C) Breastfeeding or medical conditions related to breastfeeding.

8(2) “Sex” also includes, but is not limited to, a person’s gender.
9“Gender” means sex, and includes a person’s gender identity and
10gender expression. “Gender expression” means a person’s
11gender-related appearance and behavior whether or not
12stereotypically associated with the person’s assigned sex at birth.

13(s) “Sexual orientation” means heterosexuality, homosexuality,
14and bisexuality.

15(t) “Supervisor” means any individual having the authority, in
16the interest of the employer, to hire, transfer, suspend, lay off,
17recall, promote, discharge, assign, reward, or discipline other
18employees, or the responsibility to direct them, or to adjust their
19grievances, or effectively to recommend that action, if, in
20connection with the foregoing, the exercise of that authority is not
21of a merely routine or clerical nature, but requires the use of
22independent judgment.

23(u) “Undue hardship” means an action requiring significant
24difficulty or expense, when considered in light of the following
25factors:

26(1) The nature and cost of the accommodation needed.

27(2) The overall financial resources of the facilities involved in
28the provision of the reasonable accommodations, the number of
29persons employed at the facility, and the effect on expenses and
30resources or the impact otherwise of these accommodations upon
31the operation of the facility.

32(3) The overall financial resources of the covered entity, the
33overall size of the business of a covered entity with respect to the
34number of employees, and the number, type, and location of its
35facilities.

36(4) The type of operations, including the composition, structure,
37and functions of the workforce of the entity.

38(5) The geographic separateness or administrative or fiscal
39relationship of the facility or facilities.

P8    1(v) “National origin” discrimination includes, but is not limited
2to, discrimination on the basis of possessing a driver’s license
3granted under Section 12801.9 of the Vehicle Code.



O

    98