California Legislature—2015–16 Regular Session

Assembly BillNo. 987


Introduced by Assembly Member Levine

February 26, 2015


An act to amend Section 12940 of the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 987, as introduced, Levine. Employment discrimination, unlawful employment practices.

Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account 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.

Existing law, requires an employer or other entity covered by the act to provide reasonable accommodation of, among other things, a person’s disability and religious beliefs and prohibits discrimination against any person because the person has opposed any practices forbidden under the act or because the person has filed a complaint.

This bill would, in addition, prohibit an employer or other covered entity from retaliating or otherwise discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted. The bill would make related findings and declarations.

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

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

P2    1

SECTION 1.  

The Legislature finds and declares the following:

2(a) A request for reasonable accommodation based on religion
3or disability constitutes protected activity under Government Code
4Section 12940, such that when a person makes such a request, he
5or she is protected against retaliation for making the request.

6(b) The Legislature recognizes that federal law affords similar
7protection to a person making such a request, as articulated by the
8Equal Employment Opportunity Commission in its interpretative
9guidance of the Americans with Disability Act of 1990 (Public
10Law 101-336) and Title VII of the Civil Rights Act of 1964 (Public
11Law 88-352, as amended). The Legislature affirms that the federal
12acts provide a floor of protection and that this state’s law has
13always exceeded in the protections afforded.

14(c) The law of this state contains similar protections for a person
15making a request for reasonable accommodation under the
16Pregnancy Disability Leave Law (Section 12945 of the Government
17Code) and the California Family Rights Act (Sections 12945.2 and
1819702.3 of the Government Code). It is the intent of the Legislature
19for the protections afforded a person making a request for
20accommodation on the basis of religion or disability to be
21consistent with the provisions of the Fair Employment and Housing
22Act (Part 2.8 Commencing with Section 12900) of Division 3 of
23Title 2 of the Government Code.

24(d) Notwithstanding any interpretation of this issue in Rope v.
25Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th
26635, the Legislature intends (1) to make clear that a request for
27reasonable accommodation on the basis of religion or disability is
28a protected activity, and (2) by enacting paragraph (2) of
29subdivision (m) and paragraph (4) of subdivision (l) of Section
3012940, to provide protection against retaliation when an individual
31makes a request for reasonable accommodation under these
32sections, regardless of whether the request was granted. With the
33exception of its holding on this issue, Rope v. Auto-Chlor Sys. of
34Washington, Inc., (2013) 220 Cal. App. 4th 635 remains good law.

35

SEC. 2.  

Section 12940 of the Government Code is amended
36to read:

37

12940.  

It is an unlawful employment practice, unless based
38upon a bona fide occupational qualification, or, except where based
P3    1upon applicable security regulations established by the United
2States or the State of California:

3(a) For an employer, because of the race, religious creed, color,
4national origin, ancestry, physical disability, mental disability,
5medical condition, genetic information, marital status, sex, gender,
6gender identity, gender expression, age, sexual orientation, or
7military and veteran status of any person, to refuse to hire or
8employ the person or to refuse to select the person for a training
9program leading to employment, or to bar or to discharge the
10person from employment or from a training program leading to
11employment, or to discriminate against the person in compensation
12or in terms, conditions, or privileges of employment.

13(1) This part does not prohibit an employer from refusing to
14hire or discharging an employee with a physical or mental
15disability, or subject an employer to any legal liability resulting
16from the refusal to employ or the discharge of an employee with
17a physical or mental disability, where the employee, because of
18his or her physical or mental disability, is unable to perform his
19or her essential duties even with reasonable accommodations, or
20cannot perform those duties in a manner that would not endanger
21his or her health or safety or the health or safety of others even
22with reasonable accommodations.

23(2) This part does not prohibit an employer from refusing to
24hire or discharging an employee who, because of the employee’s
25medical condition, is unable to perform his or her essential duties
26even with reasonable accommodations, or cannot perform those
27duties in a manner that would not endanger the employee’s health
28or safety or the health or safety of others even with reasonable
29accommodations. Nothing in this part shall subject an employer
30to any legal liability resulting from the refusal to employ or the
31discharge of an employee who, because of the employee’s medical
32condition, is unable to perform his or her essential duties, or cannot
33perform those duties in a manner that would not endanger the
34employee’s health or safety or the health or safety of others even
35with reasonable accommodations.

36(3) Nothing in this part relating to discrimination on account of
37marital status shall do either of the following:

38(A) Affect the right of an employer to reasonably regulate, for
39reasons of supervision, safety, security, or morale, the working of
P4    1spouses in the same department, division, or facility, consistent
2with the rules and regulations adopted by the commission.

3(B) Prohibit bona fide health plans from providing additional
4or greater benefits to employees with dependents than to those
5employees without or with fewer dependents.

6(4) Nothing in this part relating to discrimination on account of
7sex shall affect the right of an employer to use veteran status as a
8factor in employee selection or to give special consideration to
9Vietnam-era veterans.

10(5) (A) This part does not prohibit an employer from refusing
11to employ an individual because of his or her age if the law
12compels or provides for that refusal. Promotions within the existing
13staff, hiring or promotion on the basis of experience and training,
14rehiring on the basis of seniority and prior service with the
15employer, or hiring under an established recruiting program from
16high schools, colleges, universities, or trade schools do not, in and
17of themselves, constitute unlawful employment practices.

18(B) The provisions of this part relating to discrimination on the
19basis of age do not prohibit an employer from providing health
20benefits or health care reimbursement plans to retired persons that
21are altered, reduced, or eliminated when the person becomes
22eligible for Medicare health benefits. This subparagraph applies
23to all retiree health benefit plans and contractual provisions or
24practices concerning retiree health benefits and health care
25reimbursement plans in effect on or after January 1, 2011.

26(b) For a labor organization, because of the race, religious creed,
27color, national origin, ancestry, physical disability, mental
28disability, medical condition, genetic information, marital status,
29sex, gender, gender identity, gender expression, age, sexual
30orientation, or military and veteran status of any person, to exclude,
31expel, or restrict from its membership the person, or to provide
32only second-class or segregated membership or to discriminate
33against any person because of the race, religious creed, color,
34national origin, ancestry, physical disability, mental disability,
35medical condition, genetic information, marital status, sex, gender,
36gender identity, gender expression, age, sexual orientation, or
37military and veteran status of the person in the election of officers
38of the labor organization or in the selection of the labor
39organization’s staff or to discriminate in any way against any of
P5    1its members or against any employer or against any person
2employed by an employer.

3(c) For any person to discriminate against any person in the
4selection, termination, training, or other terms or treatment of that
5person in any apprenticeship training program, any other training
6program leading to employment, an unpaid internship, or another
7limited duration program to provide unpaid work experience for
8that person because of the race, religious creed, color, national
9origin, ancestry, physical disability, mental disability, medical
10condition, genetic information, marital status, sex, gender, gender
11identity, gender expression, age, sexual orientation, or military
12and veteran status of the person discriminated against.

13(d) For any employer or employment agency to print or circulate
14or cause to be printed or circulated any publication, or to make
15any nonjob-related inquiry of an employee or applicant, either
16verbal or through use of an application form, that expresses,
17directly or indirectly, any limitation, specification, or discrimination
18as to race, religious creed, color, national origin, ancestry, physical
19disability, mental disability, medical condition, genetic information,
20 marital status, sex, gender, gender identity, gender expression,
21age, sexual orientation, or military and veteran status, or any intent
22to make any such limitation, specification, or discrimination. This
23part does not prohibit an employer or employment agency from
24inquiring into the age of an applicant, or from specifying age
25limitations, where the law compels or provides for that action.

26(e) (1) Except as provided in paragraph (2) or (3), for any
27employer or employment agency to require any medical or
28psychological examination of an applicant, to make any medical
29or psychological inquiry of an applicant, to make any inquiry
30whether an applicant has a mental disability or physical disability
31or medical condition, or to make any inquiry regarding the nature
32or severity of a physical disability, mental disability, or medical
33condition.

34(2) Notwithstanding paragraph (1), an employer or employment
35agency may inquire into the ability of an applicant to perform
36job-related functions and may respond to an applicant’s request
37for reasonable accommodation.

38(3) Notwithstanding paragraph (1), an employer or employment
39agency may require a medical or psychological examination or
40make a medical or psychological inquiry of a job applicant after
P6    1an employment offer has been made but prior to the
2commencement of employment duties, provided that the
3examination or inquiry is job related and consistent with business
4necessity and that all entering employees in the same job
5classification are subject to the same examination or inquiry.

6(f) (1) Except as provided in paragraph (2), for any employer
7or employment agency to require any medical or psychological
8examination of an employee, to make any medical or psychological
9 inquiry of an employee, to make any inquiry whether an employee
10has a mental disability, physical disability, or medical condition,
11or to make any inquiry regarding the nature or severity of a physical
12disability, mental disability, or medical condition.

13(2) Notwithstanding paragraph (1), an employer or employment
14agency may require any examinations or inquiries that it can show
15to be job related and consistent with business necessity. An
16employer or employment agency may conduct voluntary medical
17examinations, including voluntary medical histories, which are
18part of an employee health program available to employees at that
19worksite.

20(g) For any employer, labor organization, or employment agency
21to harass, discharge, expel, or otherwise discriminate against any
22person because the person has made a report pursuant to Section
2311161.8 of the Penal Code that prohibits retaliation against hospital
24employees who report suspected patient abuse by health facilities
25or community care facilities.

26(h) For any employer, labor organization, employment agency,
27or person to discharge, expel, or otherwise discriminate against
28any person because the person has opposed any practices forbidden
29under this part or because the person has filed a complaint, testified,
30or assisted in any proceeding under this part.

31(i) For any person to aid, abet, incite, compel, or coerce the
32doing of any of the acts forbidden under this part, or to attempt to
33do so.

34(j) (1) For an employer, labor organization, employment agency,
35apprenticeship training program or any training program leading
36to employment, or any other person, because of race, religious
37creed, color, national origin, ancestry, physical disability, mental
38disability, medical condition, genetic information, marital status,
39sex, gender, gender identity, gender expression, age, sexual
40orientation, or military and veteran status, to harass an employee,
P7    1an applicant, an unpaid intern or volunteer, or a person providing
2services pursuant to a contract. Harassment of an employee, an
3applicant, an unpaid intern or volunteer, or a person providing
4services pursuant to a contract by an employee, other than an agent
5or supervisor, shall be unlawful if the entity, or its agents or
6supervisors, knows or should have known of this conduct and fails
7to take immediate and appropriate corrective action. An employer
8may also be responsible for the acts of nonemployees, with respect
9to sexual harassment of employees, applicants, unpaid interns or
10volunteers, or persons providing services pursuant to a contract in
11the workplace, where the employer, or its agents or supervisors,
12knows or should have known of the conduct and fails to take
13immediate and appropriate corrective action. In reviewing cases
14involving the acts of nonemployees, the extent of the employer’s
15control and any other legal responsibility that the employer may
16have with respect to the conduct of those nonemployees shall be
17considered. An entity shall take all reasonable steps to prevent
18harassment from occurring. Loss of tangible job benefits shall not
19be necessary in order to establish harassment.

20(2) The provisions of this subdivision are declaratory of existing
21law, except for the new duties imposed on employers with regard
22to harassment.

23(3) An employee of an entity subject to this subdivision is
24personally liable for any harassment prohibited by this section that
25is perpetrated by the employee, regardless of whether the employer
26or covered entity knows or should have known of the conduct and
27fails to take immediate and appropriate corrective action.

28(4) (A) For purposes of this subdivision only, “employer” means
29any person regularly employing one or more persons or regularly
30receiving the services of one or more persons providing services
31pursuant to a contract, or any person acting as an agent of an
32employer, directly or indirectly, the state, or any political or civil
33subdivision of the state, and cities. The definition of “employer”
34in subdivision (d) of Section 12926 applies to all provisions of this
35section other than this subdivision.

36(B) Notwithstanding subparagraph (A), for purposes of this
37subdivision, “employer” does not include a religious association
38or corporation not organized for private profit, except as provided
39in Section 12926.2.

P8    1(C) For purposes of this subdivision, “harassment” because of
2sex includes sexual harassment, gender harassment, and harassment
3based on pregnancy, childbirth, or related medical conditions.
4Sexually harassing conduct need not be motivated by sexual desire.

5(5) For purposes of this subdivision, “a person providing services
6pursuant to a contract” means a person who meets all of the
7following criteria:

8(A) The person has the right to control the performance of the
9contract for services and discretion as to the manner of
10performance.

11(B) The person is customarily engaged in an independently
12established business.

13(C) The person has control over the time and place the work is
14performed, supplies the tools and instruments used in the work,
15and performs work that requires a particular skill not ordinarily
16used in the course of the employer’s work.

17(k) For an employer, labor organization, employment agency,
18apprenticeship training program, or any training program leading
19to employment, to fail to take all reasonable steps necessary to
20prevent discrimination and harassment from occurring.

21(l) (1) For an employer or other entity covered by this part to
22refuse to hire or employ a person or to refuse to select a person
23for a training program leading to employment or to bar or to
24discharge a person from employment or from a training program
25leading to employment, or to discriminate against a person in
26compensation or in terms, conditions, or privileges of employment
27because of a conflict between the person’s religious belief or
28observance and any employment requirement, unless the employer
29or other entity covered by this part demonstrates that it has explored
30any available reasonable alternative means of accommodating the
31religious belief or observance, including the possibilities of
32excusing the person from those duties that conflict with his or her
33religious belief or observance or permitting those duties to be
34performed at another time or by another person, but is unable to
35reasonably accommodate the religious belief or observance without
36undue hardship, as defined in subdivision (u) of Section 12926,
37on the conduct of the business of the employer or other entity
38covered by this part. Religious belief or observance, as used in
39this section, includes, but is not limited to, observance of a Sabbath
40or other religious holy day or days, reasonable time necessary for
P9    1travel prior and subsequent to a religious observance, and religious
2dress practice and religious grooming practice as described in
3subdivision (q) of Section 12926. This subdivision shall also apply
4to an apprenticeship training program, an unpaid internship, and
5any other program to provide unpaid experience for a person in
6the workplace or industry.

7(2) An accommodation of an individual’s religious dress practice
8or religious grooming practice is not reasonable if the
9accommodation requires segregation of the individual from other
10employees or the public.

11(3) An accommodation is not required under this subdivision
12if it would result in a violation of this part or any other law
13prohibiting discrimination or protecting civil rights, including
14subdivision (b) of Section 51 of the Civil Code and Section 11135
15of this code.

begin insert

16(4) For an employer or other entity covered by this part to, in
17addition to the employee protections provided pursuant to
18subdivision (h), retaliate or otherwise discriminate against a
19person for requesting accommodation under this subdivision,
20regardless of whether the request was granted.

end insert

21(m) begin insert(1)end insertbegin insertend insert For an employer or other entity covered by this part
22to fail to make reasonable accommodation for the known physical
23or mental disability of an applicant or employee. Nothing in this
24subdivision or in paragraph (1) or (2) of subdivision (a) shall be
25construed to require an accommodation that is demonstrated by
26the employer or other covered entity to produce undue hardship,
27as defined in subdivision (u) of Section 12926, to its operation.

begin insert

28(2) For an employer or other entity covered by this part to, in
29addition to the employee protections provided pursuant to
30subdivision (h), retaliate or otherwise discriminate against a
31person for requesting accommodation under this subdivision,
32regardless of whether the request was granted.

end insert

33(n) For an employer or other entity covered by this part to fail
34to engage in a timely, good faith, interactive process with the
35employee or applicant to determine effective reasonable
36accommodations, if any, in response to a request for reasonable
37accommodation by an employee or applicant with a known physical
38or mental disability or known medical condition.

P10   1(o) For an employer or other entity covered by this part, to
2subject, directly or indirectly, any employee, applicant, or other
3person to a test for the presence of a genetic characteristic.

4(p) Nothing in this section shall be interpreted as preventing the
5ability of employers to identify members of the military or veterans
6for purposes of awarding a veteran’s preference as permitted by
7law.



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