BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 987|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 987
Author: Levine (D), et al.
Amended: 5/27/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/9/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 76-0, 4/27/15 - See last page for vote
SUBJECT: Employment discrimination: unlawful employment
practices
SOURCE: California Employment Lawyers Association
DIGEST: This bill makes it an unlawful employment practice
under the Fair Employment and Housing Act (FEHA) or an employer
or other covered entity to retaliate or otherwise discriminate
against a person who requests an accommodation for the person's
religious belief or observance or for the person's known
physical or mental disability, regardless of whether the request
was granted.
ANALYSIS:
Existing law:
1)Prohibits, under Title VII of the Civil Rights Act,
discrimination and harassment of employees.
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2)Prohibits, under FEHA, as a matter of public policy,
discrimination and harassment in employment 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.
3)Prohibits, unless based upon a bona fide occupational
qualification, or, except where based upon applicable security
regulations, as specified, an employer from refusing to hire
or employ a person or refusing to select a person for a
training program leading to employment or barring or
discharging a person from employment or from a training
program leading to employment, or discriminating against a
person in compensation or in terms, conditions, or privileges
of employment because of a conflict between the person's
religious belief or observance and any employment requirement.
4)Defines religious belief or observance to include observance
of a Sabbath or other religious holy day or days, reasonable
time necessary for travel prior and subsequent to a religious
observance, and religious dress practice and religious
grooming practice.
5)Provides that an accommodation of an individual's religious
dress practice or religious grooming practice is not
reasonable if the accommodation requires segregation of the
individual from other employees or the public, and an
accommodation is not required if it would result in a
violation of FEHA or any other law prohibiting discrimination
or protective civil rights.
6)Prohibits an employer or other entity from failing 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.
This bill:
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1)Prohibits an employer or other entity from retaliating or
otherwise discriminating against a person for requesting
accommodation for a person's religious belief or observance or
for a person's known physical or mental disability, regardless
of whether the request was granted.
2)Makes various related legislative findings and declarations.
Background
Various statutes, such as FEHA and the Unruh Civil Rights Act,
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, national origin, religion, and disability. Over
time, these statutes have been amended to include other
characteristics such as medical conditions, marital status, and
sexual orientation. Also over time, other statutes were amended
to reflect the state's public policy against discrimination in
all forms.
Under FEHA, an employee is protected from 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. Although courts construe protected activity
broadly, to include complaints made to employers, courts require
that the employee communicate to the employer sufficiently to
convey the employee's reasonable concerns that the employer is
acting in an unlawful discriminatory manner. (See Pratt v.
Delta Air Lines Inc. et al. (2015) U.S. Dist. LEXIS 60101, p.
40, citing Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1047.) However, courts have held that a mere request for
accommodation is not an activity protected from employer
retaliation. (See Kelley v. Corrections Corp. of America (2010)
750 F.Supp.2d 1132, 1144; Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 652.)
To address that issue, this bill seeks to provide employees with
protection from retaliation for requesting accommodation related
to the person's religious belief or observance or physical or
medical disability.
Comments
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The author writes:
Federal and state laws make it illegal to discriminate against
a job applicant or an employee because of the person's race,
color, religion, sex, national origin, age, disability
(including pregnancy), or genetic information. Existing law
also requires an employer to provide reasonable accommodations
because of a person's disability and[/]or religious beliefs.
Existing law prohibits discrimination against any person
because the person has opposed any practices forbidden under
[FEHA] or because the person has filed a complaint.
Federal law under the Americans with Disabilities Act (ADA)
protects employees' rights to request reasonable
accommodations. A person making a request without "opposing"
discrimination or "participating" in the administrative or
judicial complaint process is protected against retaliation
for making the request.
In October of 2013, the appellate court in Rope v. Auto-Chlor
held that an employee request for reasonable accommodation is
not protected from employer retaliation. The court held that
the FEHA retaliation provision only makes it unlawful: "For
any employer, labor organization, employment agency, or person
to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden
under this part or because the person has filed a complaint,
testified, or assisted in any proceeding under this part."
(Government Code Section 12940(h) ? [emphasis added][.)]
Because of this decision, courts are now dismissing cases
where an employee was fired or discriminated against for
making a request for reasonable accommodation. The court's
interpretation is not in line with existing law.
This bill amends the FEHA under the religious and disability
protections to clarify that an employer is prohibited from
retaliating or discriminating against an employee for
requesting a reasonable accommodation, regardless of whether
the accommodation was granted. This protects employees who
request an accommodation and are granted the request, but are
subsequently retaliated against because of that request.
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Related/Prior Legislation
AB 1383 (Jones, 2015) establishes the "Voluntary Veterans'
Preference Employment Policy Act," and, among other things,
provides, under FEHA, that an employer may use veteran status as
a factor in hiring decisions if the employer maintains a
veterans' preference employment policy, as specified. AB 1383
is currently in the Senate Judiciary Committee.
AB 1964 (Yamada, Chapter 287, Statutes of 2012) expanded the
definition of "religious creed" in FEHA to include religious
dress or grooming practices, as defined.
AB 1286 (Vasconcellos, Chapter 912, Statutes of 1992) changed
the term "physical handicap" to "physical disability" as a
protected class under FEHA.
AB 1077 (Bronzan, et al., Chapter 913, Statutes of 1992),
enacted with AB 1286, substituted "physical disability, mental
disability" for "physical handicap, medical condition".
AB 1180 (Hayden, Chapter 1151, Statutes of 1985) made it an
unlawful employment practice for an employer to discriminate
against an applicant or employee because of his or her religious
observance unless the employer demonstrates that it has explored
all available means of accommodating the religious observance
without causing undue hardship on the conduct of business.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified6/22/15)
California Employment Lawyers Association (source)
Agudath Israel of California
American Civil Liberties Union
Association of Regional Center Agencies
California Rural Legal Assistance Foundation
California Teachers Association
Church State Council
Consumer Attorneys of California
Disability Rights California
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Disability Rights Education and Defense Fund
Glendale City Employees Association
Legal Aid Society - Employment Law Center
National Association of Social Workers, California Chapter
Organization of SMUD Employees
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Luis Obispo County Employees Association
Service Employees International Union
The Arc and United Cerebral Palsy California Collaboration
OPPOSITION: (Verified6/22/15)
None received
ASSEMBLY FLOOR: 76-0, 4/27/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brown, Burke, Calderon, Chang, Chau, Chávez,
Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,
Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia,
Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley,
Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer,
Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell,
Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,
Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Brough, Campos, Beth Gaines, Obernolte
Prepared by:Tara Welch / JUD. / (916) 651-4113
6/23/15 10:32:28
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