BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 488|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 488
Author: Gonzalez (D), et al.
Amended: 8/2/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
ASSEMBLY FLOOR: 69-0, 1/15/16 - See last page for vote
SUBJECT: Employment discrimination
SOURCE: Disability Rights California
State Council on Developmental Disabilities
DIGEST: This bill adds a new provision to the Fair Employment
and Housing Act (FEHA) to expressly authorize an individual
employed under a special license under the Labor Code, as
specified, in a nonprofit sheltered workshop, day program, or
rehabilitation facility, to bring an action under FEHA for any
form or discrimination prohibited under that act. This bill
also specifies that, in any such action, the employer has an
affirmative defense, as specified, if the challenged activity
was permitted by statute or regulation and the challenged
activity was necessary to serve employees with disabilities
under the specified special license. This bill also provides,
however, that nothing under FEHA relating to discrimination on
account of disability shall subject an employer to legal
liability for obtaining a specified license or paying an
individual with a physical or mental disability less than
AB 488
Page 2
minimum wage pursuant to a specified license from the Industrial
Welfare Commission under existing law.
Senate Floor Amendments of 8/2/16 (1) authorize individuals
employed under a special license under the Labor Code, as
specified, in a nonprofit sheltered workshop, day program, or
rehabilitation facility, to bring actions for any form or
discrimination prohibited under FEHA; (2) provide employers with
a specified affirmative defense in such actions; and (3) codify
a legislative finding and declaration, as specified.
ANALYSIS:
Existing law:
1)Prohibits, as a matter of federal law, under Title VII of the
Civil Rights Act, discrimination and harassment of employees.
2)Provides, as a matter of federal law, Section 14(c) of the
federal Fair Labor Standards Act, for the employment of
certain individuals at wage rates below the minimum wage.
Under this provision, individuals whose earnings or productive
capacity is impaired by physical or mental disability for the
work to be performed, including those related to age or
injury, may be paid less than the federal minimum wage.
Certificates issued by the Department of Labor to the employer
are required for the employer to pay the special minimum wage.
3)Authorizes, under Labor Code Sections 1191 and 1191.5,
mentally or physically handicapped employees (and nonprofit
sheltered workshops and rehabilitation facilities employing
them) to be issued a license by the Industrial Welfare
Commission authorizing a special subminimum wage.
4)Prohibits, under FEHA, as a matter of public policy,
discrimination and harassment in employment on the basis of
AB 488
Page 3
race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or
military and veteran status.
5)Provides, under FEHA, that it is an unlawful employment
practice, unless based upon a bona fide occupational
qualification, or, except where based upon applicable security
regulations, as specified, for an employer to refuse to hire
or employ a person or to refuse to select a person for a
training program leading to employment, or to bar or to
discharge a person from employment or from a training program
leading to employment, or to discriminate against a person in
compensation or in terms, conditions, or privileges of
employment, because of any of the above-listed protected
bases.
6)Provides further under FEHA, however, that such disability
discrimination protections do not prohibit an employer from
refusing to hire or discharging an employee with a physical or
mental disability, or subject an employer to any legal
liability resulting from the refusal to employ or the
discharge of an employee with a physical or mental disability,
where the employee, because of his or her physical or mental
disability, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those
duties in a manner that would not endanger his or her health
or safety or the health or safety of others even with
reasonable accommodations.
7)Prohibits, under FEHA, an employer or other entity to fail to
make reasonable accommodation for the known physical or mental
disability of an applicant or employee; however, an employer
is not required to provide accommodation that is demonstrated
by the employer or other covered entity to produce undue
hardship, as defined.
8)Provides, for purposes of FEHA, that the term "employee" does
not include any individual employed by his or her parents,
AB 488
Page 4
spouse, or child, or any individual employed under a special
license in a nonprofit sheltered workshop or rehabilitation
facility.
This bill:
1)Provides that nothing under FEHA relating to discrimination on
account of disability shall subject an employer to legal
liability for obtaining a specified license or paying an
individual with a physical or mental disability less than
minimum wage pursuant to specified laws, above.
2)Creates a limited exception to the individuals exempted from
the definition of "employee," under FEHA, as specified, and
provides that an individual employed under a special license
pursuant to the Labor Code, as specified, in a nonprofit
sheltered workshop, day program, or rehabilitation facility
may bring an action under FEHA for any form of harassment or
discrimination prohibited by FEHA.
3)Provides that if an individual, specified above, brings an
action against an employer for any form of harassment or
discrimination prohibited by FEHA, the employer has an
affirmative defense to the action by proving, by a
preponderance of the evidence, both of the following:
The challenged activity was permitted by statute or
regulation.
The challenged activity was necessary to serve employees
with disabilities under a special license pursuant to the
Labor Code, as specified.
1)States that the Legislature finds and declares that the
definition of employee under FEHA, above, was not intended to
permit the harassment of, or discrimination against, an
individual employed under a special license pursuant to the
AB 488
Page 5
Labor Code, as specified, in a nonprofit sheltered workshop,
day program, or rehabilitation facility.
Background
California law reflects a strong public policy protecting
individuals against discrimination under numerous statutes,
covering a variety of contexts. FEHA and the Unruh Civil Rights
Act, for example, prohibit discrimination in employment,
housing, public accommodation, and services provided by business
establishments on the basis of specified personal
characteristics, such as sex, race, color, religion, ancestry,
national origin, age, disability, medical condition, genetic
information, marital status, or sexual orientation. (See Gov.
Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh
Civil Rights Act). Others still, prohibit discrimination in
public schools and in other state-funded programs or activities.
(See Educational Equity at Ed. Code Sec. 200 et seq. and Equity
in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also
Gov. Code Section 11135 et seq.)
Of particular import to this bill, FEHA not only protects an
employee from discrimination on protected bases, but it also
entitles the employee to certain accommodations under the law
based on, for example, their religious creed or physical or
mental disability. Further, FEHA generally protects an employee
against retaliation by the employer if the employee has opposed
any of the employer's discriminatory practices or because the
employee has filed a complaint, testified, or assisted in a FEHA
proceeding against the employer. That being said, under current
law, FEHA exempts from its definition of "employee" any person
who is employed under a special license in a nonprofit sheltered
workshop or rehabilitation facility. Thus, such individuals
employed by a nonprofit sheltered workshop or rehabilitation
facility, could presumably be discriminated against on the basis
of their sex, religion, race, marital status, national origin,
and more, without any protections under the law and without any
consequence to the employer who would otherwise be held in
violation of FEHA with respect to any other employees.
AB 488
Page 6
Accordingly, this bill seeks to ensure that any individual
employed under a special license in a nonprofit sheltered
workshop, daycare program, or rehabilitation facility, while
generally exempted from the FEHA definition of an "employee,"
nonetheless maintains a cause of action against an employer who
harasses or discriminates against them in violation of FEHA,
except as specified. At the same time, this bill also ensures
that an employer who obtains a specified license or pays an
individual less than minimum wage pursuant to a specified
license from the California Industrial Welfare Commission is not
legally liable for doing so under the anti-disability
discrimination provisions of FEHA.
Comments
As stated by the author:
The Legislature has made great strides in expanding the
protections and opportunities for most Californians under the
Fair Employment and Housing Act. From extending the bases of
potential discrimination to include age, gender, and religious
dress, to extending the definition of employee to include
unpaid interns and volunteers, previous efforts have sought to
ensure that all California workers are fully protected in the
workplace.
However, we have failed individuals with disabilities working
in sheltered workshops and rehabilitation centers by not
addressing the exemption of these employers from these laws.
This has left individuals with disabilities working in these
settings without the same recourse as others, should a case of
discrimination or harassment arise in their workplace. While
we recognize the need for certain nuances regarding the
compensation paid to these individuals and hiring practices of
the sheltered workshops and rehabilitation centers, it is
simply unacceptable to leave this population of workers
without these basic workplace protections. [ . . . ]
FISCAL EFFECT: Appropriation: No Fiscal
AB 488
Page 7
Com.:NoLocal: No
SUPPORT: (Verified8/2/16)
Disability Rights California (co-source)
State Council on Developmental Disabilities (co-source)
Arc and United Cerebral Palsy California Collaboration
California Foundation for Independent Living Centers
California Labor Federation
Disability Rights Education and Defense Fund
SEIU California
Special Needs Network
OPPOSITION: (Verified8/2/16)
The Alliance Supporting People with Intellectual and
Developmental Disabilities
Pleasantview Industries
San Gabriel Valley Training Center
Two individuals
ARGUMENTS IN SUPPORT: Disability Rights California,
co-sponsor of this bill, writes "[c]urrently, under state law,
'employee' does not include any individual employed by a
sheltered workshop or rehabilitation facility. This leaves
people with disabilities employed in these settings no recourse
for discrimination by their employer. [ . . . ] Reform is
needed to strengthen rights and protections for sheltered
workshop employees who work in highly-restrictive environments
and currently are not afforded the same protections against
discrimination as other employees."
ARGUMENTS IN OPPOSITION: Several opponents to a prior
version of this bill, including San Gabriel Valley Training
Center, write that while they "fully support making the law
clear that ALL employees are entitled to FEHA protection from
discrimination and harassment," they "object to application of
provisions that would impose liability for non-discriminatory
AB 488
Page 8
behavior that is essential to the employment arrangements for
individuals covered by the bill's provisions."
ASSEMBLY FLOOR: 69-0, 1/15/16
AYES: Achadjian, Alejo, Baker, Bigelow, Bonilla, Bonta, Brough,
Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu,
Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,
Beth Gaines, Gallagher, Cristina Garcia, Gatto, Gipson,
Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger
Hernández, Irwin, Jones, Kim, Lackey, Levine, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk,
Rendon, Rodriguez, Salas, Santiago, Steinorth, Mark Stone,
Thurmond, Ting, Wagner, Waldron, Weber, Williams, Wood, Atkins
NO VOTE RECORDED: Travis Allen, Bloom, Chávez, Eduardo Garcia,
Gomez, Holden, Jones-Sawyer, Linder, Ridley-Thomas, Wilk
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
8/3/16 18:43:11
**** END ****