Amended in Assembly April 15, 2015

Amended in Assembly March 12, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 272


Introduced by Assembly Member Lackey

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(Coauthors: Assembly Members Chávez, McCarty, Waldron, and Wilk)

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(Coauthor: Senator Vidak)

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February 11, 2015


An act to amend Sectionbegin delete 12926end deletebegin insert 830.6end insert of thebegin delete Governmentend deletebegin insert Penalend insert Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 272, as amended, Lackey. California Fair Employment and Housingbegin delete Act.end deletebegin insert Act: reserve peace officers.end insert

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.

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This bill would define specified reserve or auxiliary public safety officers as “employees” for purposes of these provisions.

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Under existing law, a person deputized or appointed as a reserve or auxiliary sheriff or city police officer, a reserve deputy sheriff, a reserve deputy marshal, a reserve police officer of a transit district, a reserve park ranger, a reserve harbor or port police officer, or a reserve officer of a school district, among others, by the proper authority, who is assigned specific police functions by that authority or is designated by local ordinance or resolution, and who meets specified requirements, is a peace officer.

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This bill would make a person deputized or appointed by the proper authority as a peace officer pursuant to the above provisions an employee for purposes of the California Fair Employment and Housing Act.

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The bill would also update an obsolete cross-reference.

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

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

P2    1begin insert

begin insertSECTION 1.end insert  

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begin insertSection 830.6 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

830.6.  

(a) (1) Wheneverbegin delete anyend deletebegin insert aend insert qualified person is deputized
4or appointed by the proper authority as a reserve or auxiliary sheriff
5or city police officer, a reserve deputy sheriff, a reserve deputy
6marshal, a reserve police officer of a regional park district or of a
7transit district, a reserve park ranger, a reserve harbor or port police
8officer of a county, city, or district as specified in Section 663.5
9of the Harbors and Navigation Code, a reserve deputy of the
10Department of Fish and Game, a reserve special agent of the
11Department of Justice, a reserve officer of a community service
12district which is authorized under subdivisionbegin delete (h)end deletebegin insert (i)end insert of Section
13begin delete 61600end deletebegin insert 61100end insert of the Government Code to maintain a police
14department or other police protection, a reserve officer of a school
15district police department under Section 35021.5 of the Education
16Code, a reserve officer of a community college police department
17under Section 72330begin insert of the Education Codeend insert, a reserve officer of
18a police protection district formed under Part 1 (commencing with
19Section 20000) of Division 14 of the Health and Safety Code, or
20a reserve housing authority patrol officer employed by a housing
21authority defined in subdivision (d) of Section 830.31, and is
22assigned specific police functions by that authority, the person is
23a peace officer, if the person qualifies as set forth in Section 832.6.
24The authority of a person designated as a peace officer pursuant
25to this paragraph extends only for the duration of the person’s
26specific assignment. A reserve park ranger or a transit, harbor, or
27port district reserve officer may carry firearms only if authorized
P3    1by, and under those terms and conditions as are specified by, his
2or her employing agency.

3(2) Wheneverbegin delete anyend deletebegin insert aend insert qualified person is deputized or appointed
4by the proper authority as a reserve or auxiliary sheriff or city
5police officer, a reserve deputy sheriff, a reserve deputy marshal,
6a reserve park ranger, a reserve police officer of a regional park
7district, transit district, community college district, or school
8district, a reserve harbor or port police officer of a county, city, or
9district as specified in Section 663.5 of the Harbors and Navigation
10Code, a reserve officer of a community service district that is
11authorized under subdivisionbegin delete (h)end deletebegin insert (i)end insert of Sectionbegin delete 61600end deletebegin insert 61100end insert of the
12Government Code to maintain a police department or other police
13protection, or a reserve officer of a police protection district formed
14under Part 1 (commencing with Section 20000) of Division 14 of
15the Health and Safety Code, and is so designated by local ordinance
16or, if the local agency is not authorized to act by ordinance, by
17resolution, either individually or by class, and is assigned to the
18prevention and detection of crime and the general enforcement of
19the laws of this state by that authority, the person is a peace officer,
20if the person qualifies as set forth in paragraph (1) of subdivision
21(a) of Section 832.6. The authority of a person designated as a
22peace officer pursuant to this paragraph includes the full powers
23and duties of a peace officer as provided by Section 830.1. A
24transit, harbor, or port district reserve police officer, or a city or
25county reserve peace officer who is not provided with the powers
26and duties authorized by Section 830.1, has the powers and duties
27authorized in Section 830.33, or in the case of a reserve park ranger,
28the powers and duties that are authorized in Section 830.31, or in
29the case of a reserve housing authority patrol officer, the powers
30and duties that are authorized in subdivision (d) of Section 830.31,
31and a school district reserve police officer or a community college
32district reserve police officer has the powers and duties authorized
33in Section 830.32.

34(b) Wheneverbegin delete anyend deletebegin insert aend insert person designated by a Native American
35tribe recognized by the United States Secretary of the Interior is
36deputized or appointed by the county sheriff as a reserve or
37auxiliary sheriff or a reserve deputy sheriff, and is assigned to the
38prevention and detection of crime and the general enforcement of
39the laws of this state by the county sheriff, the person is a peace
40officer, if the person qualifies as set forth in paragraph (1) of
P4    1subdivision (a) of Section 832.6. The authority of a peace officer
2pursuant to this subdivision includes the full powers and duties of
3a peace officer as provided by Section 830.1.

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4(c) A person deputized or appointed by the proper authority as
5a peace officer pursuant to subdivision (a) or (b), including, but
6not limited to, a person who is deputized or appointed by the proper
7authority as a reserve deputy sheriff or a reserve city police officer,
8is an employee of the appointing authority for purposes of the
9California Fair Employment and Housing Act (Part 2.8
10(commencing with Section 12900) of Division 3 of Title 2 of the
11Government Code).

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12(c)

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13begin insert(d)end insert Wheneverbegin delete anyend deletebegin insert aend insert person is summoned to the aid of any
14uniformed peace officer, the summoned person is vested with the
15powers of a peace officer that are expressly delegated to him or
16her by the summoning officer or that are otherwise reasonably
17necessary to properly assist the officer.

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18

SECTION 1.  

Section 12926 of the Government Code is
19amended to read:

20

12926.  

As used in this part in connection with unlawful
21practices, unless a different meaning clearly appears from the
22context, the following terms have the following meanings:

23(a) “Affirmative relief” or “prospective relief” includes the
24authority to order reinstatement of an employee, awards of backpay,
25reimbursement of out-of-pocket expenses, hiring, transfers,
26reassignments, grants of tenure, promotions, cease and desist
27orders, posting of notices, training of personnel, testing, expunging
28of records, reporting of records, and any other similar relief that
29is intended to correct unlawful practices under this part.

30(b) “Age” refers to the chronological age of any individual who
31has reached his or her 40th birthday.

32(c) “Employee” also includes a qualified person deputized or
33appointed by proper authority as a reserve or auxiliary sheriff or
34city police officer, a deputy sheriff, or a reserve police officer of
35a regional park district or a transit district, and is assigned specific
36police functions. “Employee” does not include any individual
37employed by his or her parents, spouse, or child, or any individual
38employed under a special license in a nonprofit sheltered workshop
39or rehabilitation facility.

P5    1(d) “Employer” includes any person regularly employing five
2or more persons, or any person acting as an agent of an employer,
3directly or indirectly, the state or any political or civil subdivision
4of the state, and cities, except as follows:

5“Employer” does not include a religious association or
6corporation not organized for private profit.

7(e) “Employment agency” includes any person undertaking for
8compensation to procure employees or opportunities to work.

9(f) “Essential functions” means the fundamental job duties of
10the employment position the individual with a disability holds or
11desires. “Essential functions” does not include the marginal
12functions of the position.

13(1) A job function may be considered essential for any of several
14reasons, including, but not limited to, any one or more of the
15following:

16(A) The function may be essential because the reason the
17position exists is to perform that function.

18(B) The function may be essential because of the limited number
19of employees available among whom the performance of that job
20function can be distributed.

21(C) The function may be highly specialized, so that the
22incumbent in the position is hired for his or her expertise or ability
23to perform the particular function.

24(2) Evidence of whether a particular function is essential
25includes, but is not limited to, the following:

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

27(B) Written job descriptions prepared before advertising or
28interviewing applicants for the job.

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

30(D) The consequences of not requiring the incumbent to perform
31the function.

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

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

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

35(g) (1) “Genetic information” means, with respect to any
36individual, information about any of the following:

37(A) The individual’s genetic tests.

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

39(C) The manifestation of a disease or disorder in family members
40of the individual.

P6    1(2) “Genetic information” includes any request for, or receipt
2of, genetic services, or participation in clinical research that
3 includes genetic services, by an individual or any family member
4of the individual.

5(3) “Genetic information” does not include information about
6the sex or age of any individual.

7(h) “Labor organization” includes any organization that exists
8and is constituted for the purpose, in whole or in part, of collective
9bargaining or of dealing with employers concerning grievances,
10terms or conditions of employment, or of other mutual aid or
11protection.

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

13(1) Any health impairment related to or associated with a
14diagnosis of cancer or a record or history of cancer.

15(2) Genetic characteristics. For purposes of this section, “genetic
16 characteristics” means either of the following:

17(A) Any scientifically or medically identifiable gene or
18chromosome, or combination or alteration thereof, that is known
19to be a cause of a disease or disorder in a person or his or her
20offspring, or that is determined to be associated with a statistically
21increased risk of development of a disease or disorder, and that is
22presently not associated with any symptoms of any disease or
23disorder.

24(B) Inherited characteristics that may derive from the individual
25or family member, that are known to be a cause of a disease or
26disorder in a person or his or her offspring, or that are determined
27to be associated with a statistically increased risk of development
28of a disease or disorder, and that are presently not associated with
29any symptoms of any disease or disorder.

30(j) “Mental disability” includes, but is not limited to, all of the
31following:

32(1) Having any mental or psychological disorder or condition,
33such as intellectual disability, organic brain syndrome, emotional
34or mental illness, or specific learning disabilities, that limits a
35major life activity. For purposes of this section:

36(A) “Limits” shall be determined without regard to mitigating
37measures, such as medications, assistive devices, or reasonable
38accommodations, unless the mitigating measure itself limits a
39major life activity.

P7    1(B) A mental or psychological disorder or condition limits a
2major life activity if it makes the achievement of the major life
3activity difficult.

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

6(2) Any other mental or psychological disorder or condition not
7described in paragraph (1) that requires special education or related
8services.

9(3) Having a record or history of a mental or psychological
10disorder or condition described in paragraph (1) or (2), which is
11known to the employer or other entity covered by this part.

12(4) Being regarded or treated by the employer or other entity
13covered by this part as having, or having had, any mental condition
14that makes achievement of a major life activity difficult.

15(5) Being regarded or treated by the employer or other entity
16covered by this part as having, or having had, a mental or
17psychological disorder or condition that has no present disabling
18effect, but that may become a mental disability as described in
19paragraph (1) or (2).

20“Mental disability” does not include sexual behavior disorders,
21compulsive gambling, kleptomania, pyromania, or psychoactive
22substance use disorders resulting from the current unlawful use of
23controlled substances or other drugs.

24(k) “Military and veteran status” means a member or veteran
25of the United States Armed Forces, United States Armed Forces
26Reserve, the United States National Guard, and the California
27National Guard.

28(l) “On the bases enumerated in this part” means or refers to
29discrimination on the basis of one or more of the following: race,
30religious creed, color, national origin, ancestry, physical disability,
31mental disability, medical condition, genetic information, marital
32status, sex, age, sexual orientation, or military and veteran status.

33(m) “Physical disability” includes, but is not limited to, all of
34the following:

35(1) Having any physiological disease, disorder, condition,
36cosmetic disfigurement, or anatomical loss that does both of the
37following:

38(A) Affects one or more of the following body systems:
39neurological, immunological, musculoskeletal, special sense
40organs, respiratory, including speech organs, cardiovascular,
P8    1reproductive, digestive, genitourinary, hemic and lymphatic, skin,
2and endocrine.

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

4(i) “Limits” shall be determined without regard to mitigating
5measures such as medications, assistive devices, prosthetics, or
6reasonable accommodations, unless the mitigating measure itself
7limits a major life activity.

8(ii) A physiological disease, disorder, condition, cosmetic
9disfigurement, or anatomical loss limits a major life activity if it
10makes the achievement of the major life activity difficult.

11(iii) “Major life activities” shall be broadly construed and
12includes physical, mental, and social activities and working.

13(2) Any other health impairment not described in paragraph (1)
14that requires special education or related services.

15(3) Having a record or history of a disease, disorder, condition,
16cosmetic disfigurement, anatomical loss, or health impairment
17described in paragraph (1) or (2), which is known to the employer
18or other entity covered by this part.

19(4) Being regarded or treated by the employer or other entity
20covered by this part as having, or having had, any physical
21condition that makes achievement of a major life activity difficult.

22(5) Being regarded or treated by the employer or other entity
23covered by this part as having, or having had, a disease, disorder,
24condition, cosmetic disfigurement, anatomical loss, or health
25impairment that has no present disabling effect but may become
26a physical disability as described in paragraph (1) or (2).

27(6) “Physical disability” does not include sexual behavior
28disorders, compulsive gambling, kleptomania, pyromania, or
29psychoactive substance use disorders resulting from the current
30unlawful use of controlled substances or other drugs.

31(n) Notwithstanding subdivisions (j) and (m), if the definition
32of “disability” used in the federal Americans with Disabilities Act
33of 1990 (Public Law 101-336) would result in broader protection
34of the civil rights of individuals with a mental disability or physical
35disability, as defined in subdivision (j) or (m), or would include
36any medical condition not included within those definitions, then
37that broader protection or coverage shall be deemed incorporated
38by reference into, and shall prevail over conflicting provisions of,
39the definitions in subdivisions (j) and (m).

P9    1(o) “Race, religious creed, color, national origin, ancestry,
2physical disability, mental disability, medical condition, genetic
3information, marital status, sex, age, sexual orientation, or military
4and veteran status” includes a perception that the person has any
5of those characteristics or that the person is associated with a
6person who has, or is perceived to have, any of those
7 characteristics.

8(p) “Reasonable accommodation” may include either of the
9following:

10(1) Making existing facilities used by employees readily
11accessible to, and usable by, individuals with disabilities.

12(2) Job restructuring, part-time or modified work schedules,
13reassignment to a vacant position, acquisition or modification of
14equipment or devices, adjustment or modifications of examinations,
15training materials or policies, the provision of qualified readers or
16interpreters, and other similar accommodations for individuals
17with disabilities.

18(q) “Religious creed,” “religion,” “religious observance,”
19“religious belief,” and “creed” include all aspects of religious
20belief, observance, and practice, including religious dress and
21grooming practices. “Religious dress practice” shall be construed
22broadly to include the wearing or carrying of religious clothing,
23head or face coverings, jewelry, artifacts, and any other item that
24is part of the observance by an individual of his or her religious
25creed. “Religious grooming practice” shall be construed broadly
26to include all forms of head, facial, and body hair that are part of
27the observance by an individual of his or her religious creed.

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

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

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

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

32(2) “Sex” also includes, but is not limited to, a person’s gender.
33“Gender” means sex, and includes a person’s gender identity and
34gender expression. “Gender expression” means a person’s
35gender-related appearance and behavior whether or not
36stereotypically associated with the person’s assigned sex at birth.

37(s) “Sexual orientation” means heterosexuality, homosexuality,
38and bisexuality.

39(t) “Supervisor” means any individual having the authority, in
40the interest of the employer, to hire, transfer, suspend, lay off,
P10   1recall, promote, discharge, assign, reward, or discipline other
2employees, or the responsibility to direct them, or to adjust their
3grievances, or effectively to recommend that action, if, in
4connection with the foregoing, the exercise of that authority is not
5of a merely routine or clerical nature, but requires the use of
6independent judgment.

7(u) “Undue hardship” means an action requiring significant
8difficulty or expense, when considered in light of the following
9factors:

10(1) The nature and cost of the accommodation needed.

11(2) The overall financial resources of the facilities involved in
12the provision of the reasonable accommodations, the number of
13persons employed at the facility, and the effect on expenses and
14resources or the impact otherwise of these accommodations upon
15the operation of the facility.

16(3) The overall financial resources of the covered entity, the
17overall size of the business of a covered entity with respect to the
18number of employees, and the number, type, and location of its
19facilities.

20(4) The type of operations, including the composition, structure,
21and functions of the workforce of the entity.

22(5) The geographic separateness or administrative or fiscal
23relationship of the facility or facilities.

24(v) “National origin” discrimination includes, but is not limited
25to, discrimination on the basis of possessing a driver’s license
26granted under Section 12801.9 of the Vehicle Code.

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