BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 488


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          488 (Gonzalez)


          As Amended  August 2, 2016


          Majority vote


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          Original Committee Reference:  L. & E.


          SUMMARY:  Authorizes individuals employed under a special  
          license in a nonprofit sheltered workshop or rehabilitation  
          facility to bring an action under the Fair Employment and  
          Housing Act (FEHA) for prohibited harassment or discrimination.


          The Senate amendments revise the bill to:  


          1)Provide that an individual employed under a special license 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.


          2)Specify that if such an individual brings an action against an  
            employer for any form of harassment or discrimination, the  
            employer has an affirmative defense to the action by proving,  








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            by a preponderance of evidence, both of the following:


             a)   The challenged activity was permitted by statute or  
               regulation.


             b)   The challenged activity was necessary to serve employees  
               with disabilities under a special license authorized the  
               Labor Code.


          3)Provide that nothing in FEHA related to disability  
            discrimination shall subject an employer to legal liability  
            for obtaining a special license under the Labor Code or paying  
            an individual with a physical or mental disability less than  
            minimum wage, as authorized under the Labor Code.


          4)Make a related legislative finding and declaration.


          EXISTING LAW:


          1)Prohibits employment discrimination and harassment on the  
            basis of 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 of the person discriminated  
            against.  (Government Code Section 12940 et seq.)


          2)Provides that "employee" for purposes of these protections  
            does not include any individual employed by his or her  
            parents, spouse, or child, "or any individual employed under a  
            special license in a nonprofit sheltered workshop or  
            rehabilitation facility."


          FISCAL EFFECT:  None.  This bill is keyed non-fiscal by  








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          Legislative Counsel.


          COMMENTS:  The California Fair Employment and Housing Act (FEHA)  
          prohibits employment discrimination and harassment of  
          individuals on the basis of specified enumerated categories -  
          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.


          FEHA defines an "employer" as any person regularly employing  
          five or more persons, but does not include a religious  
          association or corporation not organized for private profit.


          FEHA also excludes from the definition of "employee" any  
          individual employed by his or her parents, spouse or child, or  
          "any individual employed under a special license in a nonprofit  
          sheltered workshop or rehabilitation facility."


          According to the author, workers in sheltered workshops and  
          rehabilitation centers are currently excluded from the  
          protections against discrimination and sexual harassment offered  
          by FEHA.  This leaves workers with disabilities who are employed  
          in these settings no recourse for discrimination based on  
          characteristics like race, religion or gender identity by their  
          employer. 


          The author notes that AB 1443 (Skinner), Chapter 302, Statutes  
          of 2014 extended FEHA's protections to cover unpaid interns and  
          volunteers, suggesting that these workplace protections are  
          appropriate even for those making less than minimum wage or in a  
          program for a limited time to gain experience. 


          Also, the author notes that, while California has been moving  
          towards competitive and integrated job placements for  








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          individuals with disabilities, this does not take away from the  
          fact that it is important for workers in all settings to have  
          legal protections against and recourse from discrimination and  
          harassment.


          The sponsor of this bill, Disability Rights California, states  
          that it would change the Government Code so that individuals  
          with disabilities who are in sheltered work are provided the  
          same protections as other employees under FEHA.  They argue that  
          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.


          Analysis Prepared by:                                             
                          Ben Ebbink / L. & E. / (916) 319-2091  FN:  
          0003731