Amended in Assembly January 4, 2016

Amended in Assembly April 14, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 488


Introduced by Assembly Member Gonzalez

February 23, 2015


An act tobegin delete add Sections 19155 and 19405 to the Welfare and Institutions Code,end deletebegin insert amend Section 12926 of the Government Code,end insert relating tobegin delete rehabilitation.end deletebegin insert employment discrimination.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 488, as amended, Gonzalez. begin deleteRehabilitation: dignity stipend. end deletebegin insertEmployment discrimination.end insert

begin insert

Existing law protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. Existing law prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. Existing law specifies requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. Existing law defines employee for these purposes and excludes from the definition any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.

end insert
begin insert

This bill would redefine employee to remove the exemption for an individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility, thereby applying employment discrimination protections to these people.

end insert
begin delete

Existing state and federal laws provide for payment of a special minimum wage for workers with disabilities that is lower than the established minimum wage rate, under specified circumstances. Existing law authorizes the Department of Rehabilitation to regulate vocational rehabilitation services, which are defined as specified services and goods to assist persons with disabilities in employment.

end delete
begin delete

This bill would define “dignity stipend” as the value provided by an employer to workers defined by the Department of Rehabilitation as eligible individuals with an intellectual or developmental disability severe enough to result in a substantial impediment to employment when the employer pays a special minimum wage to those workers, operates a community rehabilitation program certified by the Department of Rehabilitation that provides services to those workers, and the hourly wage plus the hourly cost of providing those services exceeds 125% of the California minimum wage rate for those workers. The bill would require the department to determine whether an employer that operates a community rehabilitation program provides a dignity stipend, when certifying the program.

end delete

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

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 12926 of the end insertbegin insertGovernment Codeend insertbegin insert is
2amended to read:end insert

3

12926.  

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

6(a) “Affirmative relief” or “prospective relief” includes the
7authority to order reinstatement of an employee, awards of backpay,
8reimbursement of out-of-pocket expenses, hiring, transfers,
9reassignments, grants of tenure, promotions, cease and desist
10orders, posting of notices, training of personnel, testing, expunging
P3    1of records, reporting of records, and any other similar relief that
2is intended to correct unlawful practices under this part.

3(b) “Age” refers to the chronological age of any individual who
4has reached his or her 40th birthday.

5(c) “Employee” does not include any individual employed by
6his or her parents, spouse, orbegin delete child, or any individual employed
7under a special license in a nonprofit sheltered workshop or
8rehabilitation facility.end delete
begin insert child.end insert

9(d) “Employer” includes any person regularly employing five
10or more persons, or any person acting as an agent of an employer,
11directly or indirectly, the state or any political or civil subdivision
12of the state, and cities, except as follows:

13“Employer” does not include a religious association or
14corporation not organized for private profit.

15(e) “Employment agency” includes any person undertaking for
16compensation to procure employees or opportunities to work.

17(f) “Essential functions” means the fundamental job duties of
18the employment position the individual with a disability holds or
19desires. “Essential functions” does not include the marginal
20functions of the position.

21(1) A job function may be considered essential for any of several
22reasons, including, but not limited to, any one or more of the
23following:

24(A) The function may be essential because the reason the
25position exists is to perform that function.

26(B) The function may be essential because of the limited number
27of employees available among whom the performance of that job
28function can be distributed.

29(C) The function may be highly specialized, so that the
30incumbent in the position is hired for his or her expertise or ability
31to perform the particular function.

32(2) Evidence of whether a particular function is essential
33includes, but is not limited to, the following:

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

35(B) Written job descriptions prepared before advertising or
36interviewing applicants for the job.

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

38(D) The consequences of not requiring the incumbent to perform
39the function.

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

P4    1(F) The work experiences of past incumbents in the job.

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

3(g) (1) “Genetic information” means, with respect to any
4individual, information about any of the following:

5(A) The individual’s genetic tests.

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

7(C) The manifestation of a disease or disorder in family members
8of the individual.

9(2) “Genetic information” includes any request for, or receipt
10of, genetic services, or participation in clinical research that
11 includes genetic services, by an individual or any family member
12of the individual.

13(3) “Genetic information” does not include information about
14the sex or age of any individual.

15(h) “Labor organization” includes any organization that exists
16and is constituted for the purpose, in whole or in part, of collective
17bargaining or of dealing with employers concerning grievances,
18terms or conditions of employment, or of other mutual aid or
19protection.

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

21(1) Any health impairment related to or associated with a
22diagnosis of cancer or a record or history of cancer.

23(2) Genetic characteristics. For purposes of this section, “genetic
24 characteristics” means either of the following:

25(A) Any scientifically or medically identifiable gene or
26chromosome, or combination or alteration thereof, that is known
27to be a cause of a disease or disorder in a person or his or her
28offspring, or that is determined to be associated with a statistically
29increased risk of development of a disease or disorder, and that is
30presently not associated with any symptoms of any disease or
31disorder.

32(B) Inherited characteristics that may derive from the individual
33or family member, that are known to be a cause of a disease or
34disorder in a person or his or her offspring, or that are determined
35to be associated with a statistically increased risk of development
36of a disease or disorder, and that are presently not associated with
37any symptoms of any disease or disorder.

38(j) “Mental disability” includes, but is not limited to, all of the
39following:

P5    1(1) Having any mental or psychological disorder or condition,
2such as intellectual disability, organic brain syndrome, emotional
3or mental illness, or specific learning disabilities, that limits a
4major life activity. For purposes of this section:

5(A) “Limits” shall be determined without regard to mitigating
6measures, such as medications, assistive devices, or reasonable
7accommodations, unless the mitigating measure itself limits a
8major life activity.

9(B) A mental or psychological disorder or condition limits a
10major life activity if it makes the achievement of the major life
11activity difficult.

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

14(2) Any other mental or psychological disorder or condition not
15described in paragraph (1) that requires special education or related
16services.

17(3) Having a record or history of a mental or psychological
18disorder or condition described in paragraph (1) or (2), which is
19known to the employer or other entity covered by this part.

20(4) Being regarded or treated by the employer or other entity
21covered by this part as having, or having had, any mental condition
22that makes achievement of a major life activity difficult.

23(5) Being regarded or treated by the employer or other entity
24covered by this part as having, or having had, a mental or
25psychological disorder or condition that has no present disabling
26effect, but that may become a mental disability as described in
27paragraph (1) or (2).

28“Mental disability” does not include sexual behavior disorders,
29compulsive gambling, kleptomania, pyromania, or psychoactive
30substance use disorders resulting from the current unlawful use of
31controlled substances or other drugs.

32(k) “Military and veteran status” means a member or veteran
33of the United States Armed Forces, United States Armed Forces
34Reserve, the United States National Guard, and the California
35National Guard.

36(l) “On the bases enumerated in this part” means or refers to
37discrimination on the basis of one or more of the following: race,
38religious creed, color, national origin, ancestry, physical disability,
39mental disability, medical condition, genetic information, marital
40status, sex, age, sexual orientation, or military and veteran status.

P6    1(m) “Physical disability” includes, but is not limited to, all of
2the following:

3(1) Having any physiological disease, disorder, condition,
4cosmetic disfigurement, or anatomical loss that does both of the
5following:

6(A) Affects one or more of the following body systems:
7neurological, immunological, musculoskeletal, special sense
8organs, respiratory, including speech organs, cardiovascular,
9reproductive, digestive, genitourinary, hemic and lymphatic, skin,
10and endocrine.

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

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

16(ii) A physiological disease, disorder, condition, cosmetic
17disfigurement, or anatomical loss limits a major life activity if it
18makes the achievement of the major life activity difficult.

19(iii) “Major life activities” shall be broadly construed and
20includes physical, mental, and social activities and working.

21(2) Any other health impairment not described in paragraph (1)
22that requires special education or related services.

23(3) Having a record or history of a disease, disorder, condition,
24cosmetic disfigurement, anatomical loss, or health impairment
25described in paragraph (1) or (2), which is known to the employer
26or other entity covered by this part.

27(4) Being regarded or treated by the employer or other entity
28covered by this part as having, or having had, any physical
29condition that makes achievement of a major life activity difficult.

30(5) Being regarded or treated by the employer or other entity
31covered by this part as having, or having had, a disease, disorder,
32condition, cosmetic disfigurement, anatomical loss, or health
33impairment that has no present disabling effect but may become
34a physical disability as described in paragraph (1) or (2).

35(6) “Physical disability” does not include sexual behavior
36disorders, compulsive gambling, kleptomania, pyromania, or
37psychoactive substance use disorders resulting from the current
38unlawful use of controlled substances or other drugs.

39(n) Notwithstanding subdivisions (j) and (m), if the definition
40of “disability” used in the federal Americans with Disabilities Act
P7    1of 1990 (Public Law 101-336) would result in broader protection
2of the civil rights of individuals with a mental disability or physical
3disability, as defined in subdivision (j) or (m), or would include
4any medical condition not included within those definitions, then
5that broader protection or coverage shall be deemed incorporated
6by reference into, and shall prevail over conflicting provisions of,
7the definitions in subdivisions (j) and (m).

8(o) “Race, religious creed, color, national origin, ancestry,
9physical disability, mental disability, medical condition, genetic
10information, marital status, sex, age, sexual orientation, or military
11and veteran status” includes a perception that the person has any
12of those characteristics or that the person is associated with a
13person who has, or is perceived to have, any of those
14 characteristics.

15(p) “Reasonable accommodation” may include either of the
16following:

17(1) Making existing facilities used by employees readily
18accessible to, and usable by, individuals with disabilities.

19(2) Job restructuring, part-time or modified work schedules,
20reassignment to a vacant position, acquisition or modification of
21equipment or devices, adjustment or modifications of examinations,
22training materials or policies, the provision of qualified readers or
23interpreters, and other similar accommodations for individuals
24with disabilities.

25(q) “Religious creed,” “religion,” “religious observance,”
26“religious belief,” and “creed” include all aspects of religious
27belief, observance, and practice, including religious dress and
28grooming practices. “Religious dress practice” shall be construed
29broadly to include the wearing or carrying of religious clothing,
30head or face coverings, jewelry, artifacts, and any other item that
31is part of the observance by an individual of his or her religious
32creed. “Religious grooming practice” shall be construed broadly
33to include all forms of head, facial, and body hair that are part of
34the observance by an individual of his or her religious creed.

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

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

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

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

39(2) “Sex” also includes, but is not limited to, a person’s gender.
40“Gender” means sex, and includes a person’s gender identity and
P8    1gender expression. “Gender expression” means a person’s
2gender-related appearance and behavior whether or not
3stereotypically associated with the person’s assigned sex at birth.

4(s) “Sexual orientation” means heterosexuality, homosexuality,
5and bisexuality.

6(t) “Supervisor” means any individual having the authority, in
7the interest of the employer, to hire, transfer, suspend, lay off,
8recall, promote, discharge, assign, reward, or discipline other
9employees, or the responsibility to direct them, or to adjust their
10grievances, or effectively to recommend that action, if, in
11connection with the foregoing, the exercise of that authority is not
12of a merely routine or clerical nature, but requires the use of
13independent judgment.

14(u) “Undue hardship” means an action requiring significant
15difficulty or expense, when considered in light of the following
16factors:

17(1) The nature and cost of the accommodation needed.

18(2) The overall financial resources of the facilities involved in
19the provision of the reasonable accommodations, the number of
20persons employed at the facility, and the effect on expenses and
21resources or the impact otherwise of these accommodations upon
22the operation of the facility.

23(3) The overall financial resources of the covered entity, the
24overall size of the business of a covered entity with respect to the
25number of employees, and the number, type, and location of its
26facilities.

27(4) The type of operations, including the composition, structure,
28and functions of the workforce of the entity.

29(5) The geographic separateness or administrative or fiscal
30relationship of the facility or facilities.

31(v) “National origin” discrimination includes, but is not limited
32to, discrimination on the basis of possessing a driver’s license
33granted under Section 12801.9 of the Vehicle Code.

begin delete
34

SECTION 1.  

Section 19155 is added to the Welfare and
35Institutions Code
, to read:

36

19155.  

“Dignity stipend” means the value provided by an
37employer to workers defined by the Department of Rehabilitation
38as eligible individuals with an intellectual or developmental
39disability severe enough to result in a substantial impediment to
40employment under the following conditions:

P9    1(a) The employer operates a community rehabilitation program
2certified by the Department of Rehabilitation that provides
3vocational rehabilitation services to the workers described in
4subdivision (b).

5(b) The employer pays a special minimum wage to workers
6with disabilities pursuant to Section 214(c) of Title 29 of the United
7States Code or Section 1191 or 1191.5 of the Labor Code.

8(c) The hourly wage described in subdivision (b) added to the
9 employer’s hourly cost of providing the services described in
10subdivision (a) exceeds 125 percent of the California minimum
11wage rate for each of the workers described in subdivision (b).

12

SEC. 2.  

Section 19405 is added to the Welfare and Institutions
13Code
, to read:

14

19405.  

The department shall determine, in certifying a
15community rehabilitation program, whether the employer that
16operates the program provides a dignity stipend, as defined in
17Section 19155.

end delete


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