AB 488, as amended, Gonzalez. Employment discrimination.
Existing law, the California Fair Employment and Housing Act, 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. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes 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. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act excludes from the definition of “employee,” 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.
This bill would
begin delete redefine “employee” to no longer
exclude any individual employed under a special license in a nonprofit sheltered workshop or
rehabilitation facility, thereby applying employment discrimination protections to these individuals. This bill wouldend delete exempt an begin delete employer who obtainsend delete
a special license, or begin delete hires or employsend delete a qualified individual at a wage less than the minimum wage in conformity with a special license, from the act’s provisions prohibiting discrimination based on disability.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 12926 of the Government Code is
2amended to read:
As used in this part in connection with unlawful
2practices, unless a different meaning clearly appears from the
4(a) “Affirmative relief” or “prospective relief” includes the
5authority to order reinstatement of an employee, awards of backpay,
6reimbursement of out-of-pocket expenses, hiring, transfers,
7reassignments, grants of tenure, promotions, cease and desist
8orders, posting of notices, training of personnel, testing, expunging
9of records, reporting of records, and any other similar relief that
10is intended to correct unlawful practices under this part.
11(b) “Age” refers to the chronological age of any individual who
12has reached his or her 40th birthday.
begin delete“Employee” end delete does not include any individual employed by his or
15her parents, spouse, or
begin delete child.end delete
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
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.
P4 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
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.
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
20includes 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
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
33characteristics” 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
P5 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
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
20(C) “Major life activities” shall be broadly construed and shall
21include 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
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.
P6 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
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
12(1) Having any physiological disease, disorder, condition,
13cosmetic disfigurement, or anatomical loss that does both of the
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,
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,
P7 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
24(p) “Reasonable accommodation” may include either of the
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
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
P8 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,
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
18 employees, or the responsibility to direct them, or to adjust their
19 grievances, 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
23(u) “Undue hardship” means an action requiring significant
24difficulty or expense, when considered in light of the following
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
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.
P9 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.
All matter omitted in this version of the bill appears in the bill as amended in the Senate, June 21, 2016. (JR11)