Amended in Senate August 2, 2016

Amended in Senate June 21, 2016

Amended in Senate March 31, 2016

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 Bill No. 488

Introduced by Assembly Member Gonzalez

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(Coauthor: Senator Hueso)

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February 23, 2015

An act to amend begin delete Sections end delete begin insert Section end insert 12926 begin delete and 12940 of end delete begin insert of, and to add Section 12926.05 to, end insert the Government Code, relating to employment discrimination.

LEGISLATIVE COUNSEL’S DIGEST

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 would end delete begin insert authorize an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility to bring an action under the act for any form of harrassment or discrimination prohibited by the act. The bill would provide an employer against whom the individual brings this action with an affirmative defense by proving, by a preponderance of evidence, that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities under a special license. The bill would end insert exempt an begin delete employer who obtains end delete begin insert employer’s obtaining end insert a special license, or begin delete hires or employs end delete begin insert hiring or employing end insert 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. begin insert The bill would provide that the definition of employee was not intended to permit the harassment of, or discrimination against, an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility. end insert

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

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

SECTION 1.  

Section 12926 of the Government Code is
amended to read:

12926.  

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

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

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

(c)  begin delete “Employee” end delete begin insert Except as provided by Section 12926.05,
“employee” end insert does not include any individual employed by his or
her parents, spouse, or begin delete child. end delete begin insert child or any individual employed
under a special license in a nonprofit sheltered workshop or
rehabilitation facility. end insert

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

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

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

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

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

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

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

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

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

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

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

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

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

(E) The terms of a collective bargaining agreement.

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

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

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

(A) The individual’s genetic tests.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(A) Pregnancy or medical conditions related to pregnancy.

(B) Childbirth or medical conditions related to childbirth.

(C) Breastfeeding or medical conditions related to breastfeeding.

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

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

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

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

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

(2) 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.

(3) 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.

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

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

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

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 12926.05 is added to the end insert begin insert Government Code end insert begin insert ,
to read: end insert

begin insert

begin insert 12926.05. end insert   

(a) An individual employed under a special license
pursuant to Section 1191 or 1191.5 of the Labor Code in a
nonprofit sheltered workshop, day program, or rehabilitation
facility may bring an action under this part for any form of
harrassment or discrimination prohibited by this part.

(b) If an individual specified in subdivision (a) brings an action
against an employer for any form of harassment or discrimination
prohibited by this part, the employer has an affirmative defense
to the action by proving, by a preponderance of evidence, both of
the following:

(1) The challenged activity was permitted by statute or
regulation.

(2) The challenged activity was necessary to serve employees
with disabilities under a special license pursuant to Section 1191
or 1191.5 of the Labor Code.

(c) Nothing in this part relating to discrimination on account
of disability shall subject an employer to legal liability for
obtaining a license pursuant to Section 1191.5 of the Labor Code
or paying an individual with a physical or mental disability less
than minimum wage pursuant to either Section 1191 or Section
1191.5 of the Labor Code.

(d) The Legislature finds and declares that the definition of
employee in subdivision (c) of Section 12926 was not intended to
permit the harassment of, or discrimination against, an individual
employed under a special license pursuant to Section 1191 or
1191.5 of the Labor Code in a nonprofit sheltered workshop, day
program, or rehabilitation facility.

end insert

All matter omitted in this version of the bill appears in the bill as amended in the Senate, June 21, 2016. (JR11)