BILL ANALYSIS Ó
AB 488
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CONCURRENCE IN SENATE AMENDMENTS
AB
488 (Gonzalez)
As Amended August 2, 2016
Majority vote
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|ASSEMBLY: |69-0 |(January 15, |SENATE: |26-11 |(August 15, |
| | |2016) | | |2016) |
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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