California Legislature—2015–16 Regular Session

Assembly BillNo. 1383


Introduced by Assembly Member Jones

February 27, 2015


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

LEGISLATIVE COUNSEL’S DIGEST

AB 1383, as introduced, Jones. Unlawful employment practices.

Under the California Fair Employment and Housing Act, it is an unlawful employment practice for an employer, unless based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California, 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 discharge a person from employment or a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of the 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 that person.

This bill would make nonsubstantive changes to those provisions.

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

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

P2    1

SECTION 1.  

Section 12940 of the Government Code is
2amended to read:

3

12940.  

It is an unlawful employment practice, unless based
4upon a bona fide occupational qualification, or, except where based
5upon applicable security regulations established by the United
6States or the State of California:

7(a) For an employer, because of the race, religious creed, color,
8national origin, ancestry, physical disability, mental disability,
9medical condition, genetic information, marital status, sex, gender,
10gender identity, gender expression, age, sexual orientation, or
11military and veteran status of any person, to refuse to hire or
12employ the person or to refuse to select the person for a training
13program leading to employment, or to bar or to discharge the
14person from employment or from a training program leading to
15employment, or to discriminate against the person in compensation
16or in terms, conditions, or privileges of employment.

17(1) This part does not prohibit an employer from refusing to
18hire or discharging an employee with a physical or mental
19disability, or subject an employer to any legal liability resulting
20from the refusal to employ or the discharge of an employee with
21a physical or mental disability, where the employee, because of
22his or her physical or mental disability, is unable to perform his
23or her essential duties even with reasonable accommodations, or
24cannot perform those duties in a manner that would not endanger
25his or her health or safety or the health or safety of others even
26with reasonable accommodations.

27(2) This part does not prohibit an employer from refusing to
28hire or discharging an employee who, because of the employee’s
29medical condition, is unable to perform his or her essential duties
30even with reasonable accommodations, or cannot perform those
31 duties in a manner that would not endanger the employee’s health
32or safety or the health or safety of others even with reasonable
33accommodations. Nothing in this part shall subject an employer
34to any legal liability resulting from the refusal to employ or the
35discharge of an employee who, because of the employee’s medical
36condition, is unable to perform his or her essential duties, or cannot
37perform those duties in a manner that would not endanger the
P3    1employee’s health or safety or the health or safety of others even
2with reasonable accommodations.

3(3) Nothing in this part relating to discrimination on account of
4marital status shall do either of the following:

5(A) Affect the right of an employer to reasonably regulate, for
6reasons of supervision, safety, security, or morale, the working of
7spouses in the same department, division, or facility, consistent
8with the rules and regulations adopted by the commission.

9(B) Prohibit bona fide health plans from providing additional
10or greater benefits to employees with dependents than to those
11employees without or with fewer dependents.

12(4) Nothing in this part relating to discrimination on account of
13sex shall affect the right of an employer to use veteran status as a
14factor in employee selection or to give special consideration to
15Vietnam-era veterans.

16(5) (A) This part does not prohibit an employer from refusing
17to employ an individual because of his or her age if the law
18compels or provides for that refusal. Promotions within the existing
19staff, hiring or promotion on the basis of experience and training,
20rehiring on the basis of seniority and prior service with the
21employer, or hiring under an established recruiting program from
22high schools, colleges, universities, or trade schools do not, in and
23of themselves, constitute unlawful employment practices.

24(B) The provisions of this part relating to discrimination on the
25basis of age do not prohibit an employer from providing health
26benefits or health care reimbursement plans to retired persons that
27are altered, reduced, or eliminated when the person becomes
28eligible for Medicare health benefits. This subparagraph applies
29to all retiree health benefit plans and contractual provisions or
30practices concerning retiree health benefits and health care
31reimbursement plans in effect on or after January 1, 2011.

32(b) For a labor organization, because of the race, religious creed,
33color, national origin, ancestry, physical disability, mental
34disability, medical condition, genetic information, marital status,
35sex, gender, gender identity, gender expression, age, sexual
36orientation, or military and veteran status of any person, to exclude,
37expel, or restrict from its membership the person, or to provide
38only second-class or segregated membership or to discriminate
39against any person because of the race, religious creed, color,
40national origin, ancestry, physical disability, mental disability,
P4    1medical condition, genetic information, marital status, sex, gender,
2gender identity, gender expression, age, sexual orientation, or
3military and veteran status of the person in the election of officers
4of the labor organization or in the selection of the labor
5organization’s staff or to discriminate in any way against any of
6itsbegin delete members or againstend deletebegin insert members,end insert anybegin delete employerend deletebegin insert employer,end insert orbegin delete againstend delete
7 any person employed by an employer.

8(c) For any person to discriminate against any person in the
9selection, termination, training, or other terms or treatment of that
10person in any apprenticeship training program, any other training
11program leading to employment, an unpaid internship, or another
12limited duration program to provide unpaid work experience for
13that person because of the race, religious creed, color, national
14origin, ancestry, physical disability, mental disability, medical
15condition, genetic information, marital status, sex, gender, gender
16identity, gender expression, age, sexual orientation, or military
17and veteran status of the person discriminated against.

18(d) For any employer or employment agency to print or circulate
19or cause to be printed or circulated any publication, or to make
20any nonjob-related inquiry of an employee or applicant, either
21verbal or through use of an application form, that expresses,
22directly or indirectly, any limitation, specification, or discrimination
23as to race, religious creed, color, national origin, ancestry, physical
24disability, mental disability, medical condition, genetic information,
25marital status, sex, gender, gender identity, gender expression,
26age, sexual orientation, or military and veteran status, or any intent
27to make any such limitation, specification, or discrimination. This
28part does not prohibit an employer or employment agency from
29inquiring into the age of anbegin delete applicant,end deletebegin insert applicantend insert or from specifying
30age limitations, where the law compels or provides for that action.

31(e) (1) Except as provided in paragraph (2) or (3), for any
32employer or employment agency to require any medical or
33psychological examination of an applicant, to make any medical
34or psychological inquiry of an applicant, to make any inquiry
35whether an applicant has a mentalbegin delete disability orend deletebegin insert disability,end insert physical
36begin delete disabilityend deletebegin insert disability,end insert or medical condition, or to make any inquiry
37regarding the nature or severity of a physical disability, mental
38disability, or medical condition.

39(2) Notwithstanding paragraph (1), an employer or employment
40agency may inquire into the ability of an applicant to perform
P5    1job-related functions and may respond to an applicant’s request
2for reasonable accommodation.

3(3) Notwithstanding paragraph (1), an employer or employment
4agency may require a medical or psychological examination or
5make a medical or psychological inquiry of a job applicant after
6an employment offer has been made but prior to the
7commencement of employment duties, provided that the
8examination or inquiry is job related and consistent with business
9necessity and that all entering employees in the same job
10classification are subject to the same examination or inquiry.

11(f) (1) Except as provided in paragraph (2), for any employer
12or employment agency to require any medical or psychological
13examination of an employee, to make any medical or psychological
14inquiry of an employee, to make any inquiry whether an employee
15has a mental disability, physical disability, or medical condition,
16or to make any inquiry regarding the nature or severity of a physical
17disability, mental disability, or medical condition.

18(2) Notwithstanding paragraph (1), an employer or employment
19agency may require any examinations or inquiries thatbegin delete itend deletebegin insert the
20employer or employment agencyend insert
can show to be job related and
21consistent with business necessity. An employer or employment
22agency may conduct voluntary medical examinations, including
23voluntary medicalbegin delete histories, whichend deletebegin insert histories thatend insert are part of an
24employee health program available to employees at that worksite.

25(g) For any employer, labor organization, or employment agency
26to harass, discharge, expel, or otherwise discriminate against any
27person because the person has made a report pursuant to Section
2811161.8 of the Penalbegin delete Code thatend deletebegin insert Code, whichend insert prohibits retaliation
29against hospital employees who report suspected patient abuse by
30health facilities or community care facilities.

31(h) For any employer, labor organization, employment agency,
32or person to discharge, expel, or otherwise discriminate against
33any person because the person has opposed any practices forbidden
34under this part or because the person has filed a complaint, testified,
35or assisted in any proceeding under this part.

36(i) For any person to aid, abet, incite, compel, or coerce the
37doing of any of the acts forbidden under this part, or to attempt to
38do so.

39(j) (1) For an employer, labor organization, employment agency,
40apprenticeship trainingbegin delete programend deletebegin insert program,end insert or any training program
P6    1leading to employment, or any other person, because of race,
2religious creed, color, national origin, ancestry, physical disability,
3mental disability, medical condition, genetic information, marital
4status, sex, gender, gender identity, gender expression, age, sexual
5orientation, or military and veteran status, to harass an employee,
6an applicant, an unpaid intern or volunteer, or a person providing
7services pursuant to a contract. Harassment of an employee, an
8applicant, an unpaid intern or volunteer, or a person providing
9services pursuant to a contract by an employee, other than an agent
10or supervisor, shall be unlawful if the entity, or its agents or
11supervisors, knows or should have known of this conduct and fails
12to take immediate and appropriate corrective action. An employer
13may also be responsible for the acts of nonemployees, with respect
14to sexual harassment of employees, applicants, unpaid interns or
15volunteers, or persons providing services pursuant to a contract in
16the workplace, where the employer, or its agents or supervisors,
17knows or should have known of the conduct and fails to take
18immediate and appropriate corrective action. In reviewing cases
19involving the acts of nonemployees, the extent of the employer’s
20control and any other legal responsibility that the employer may
21have with respect to the conduct of those nonemployees shall be
22considered. An entity shall take all reasonable steps to prevent
23harassment from occurring. Loss of tangible job benefits shall not
24be necessary in order to establish harassment.

25(2) begin deleteThe provisions of this end deletebegin insertThis end insertsubdivisionbegin delete areend deletebegin insert isend insert declaratory of
26existing law, except for the new duties imposed on employers with
27regard to harassment.

28(3) An employee of an entity subject to this subdivision is
29personally liable for any harassment prohibited by this section that
30is perpetrated by the employee, regardless of whether the employer
31or covered entity knows or should have known of the conduct and
32fails to take immediate and appropriate corrective action.

33(4) (A) For purposes of this subdivision only, “employer” means
34any person regularly employing one or more persons or regularly
35receiving the services of one or more persons providing services
36pursuant to a contract, or any person acting as an agent of an
37employer, directly or indirectly, the state, or any political or civil
38subdivision of the state, and cities. The definition of “employer”
39in subdivision (d) of Section 12926 applies to all provisions of this
40section other than this subdivision.

P7    1(B) Notwithstanding subparagraph (A), for purposes of this
2subdivision, “employer” does not include a religious association
3or corporation not organized for private profit, except as provided
4in Section 12926.2.

5(C) For purposes of this subdivision, “harassment” because of
6sex includes sexual harassment, gender harassment, and harassment
7based on pregnancy, childbirth, or related medical conditions.
8Sexually harassing conduct need not be motivated by sexual desire.

9(5) For purposes of this subdivision, “a person providing services
10pursuant to a contract” means a person who meets all of the
11following criteria:

12(A) The person has the right to control the performance of the
13contract for services and discretion as to the manner of
14performance.

15(B) The person is customarily engaged in an independently
16established business.

17(C) The person has control over the time and place the work is
18performed, supplies the tools and instruments used in the work,
19and performs work that requires a particular skill not ordinarily
20used in the course of the employer’s work.

21(k) For an employer, labor organization, employment agency,
22apprenticeship training program, or any training program leading
23to employment, to fail to take all reasonable steps necessary to
24prevent discrimination and harassment from occurring.

25(l) (1) For an employer or other entity covered by this part to
26refuse to hire or employ a person or to refuse to select a person
27for a training program leading to employment or to bar or to
28discharge a person from employment or from a training program
29leading to employment, or to discriminate against a person in
30compensation or in terms, conditions, or privileges of employment
31because of a conflict between the person’s religious belief or
32observance and any employment requirement, unless the employer
33or other entity covered by this part demonstrates that it has explored
34any available reasonable alternative means of accommodating the
35religious belief or observance, including the possibilities of
36excusing the person from those duties that conflict with his or her
37religious belief or observance or permitting those duties to be
38performed at another time or by another person, but is unable to
39reasonably accommodate the religious belief or observance without
40undue hardship, as defined in subdivision (u) of Section 12926,
P8    1on the conduct of the business of the employer or other entity
2covered by this part. Religious belief or observance, as used in
3this section, includes, but is not limited to, observance of a Sabbath
4or other religious holy day or days, reasonable time necessary for
5travel prior and subsequent to a religious observance, and religious
6dress practice and religious grooming practice as described in
7subdivision (q) of Section 12926. This subdivision shall also apply
8to an apprenticeship training program, an unpaid internship, and
9any other program to provide unpaid experience for a person in
10the workplace or industry.

11(2) An accommodation of an individual’s religious dress practice
12or religious grooming practice is not reasonable if the
13accommodation requires segregation of the individual from other
14employees or the public.

15(3) An accommodation is not required under this subdivision
16if it would result in a violation of this part or any other law
17prohibiting discrimination or protecting civil rights, including
18subdivision (b) of Section 51 of the Civil Code and Section 11135
19of this code.

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

27(n) For an employer or other entity covered by this part to fail
28to engage in a timely, good faith, interactive process with the
29employee or applicant to determine effective reasonable
30accommodations, if any, in response to a request for reasonable
31accommodation by an employee or applicant with a known physical
32or mental disability or known medical condition.

33(o) For an employer or other entity covered by this part, to
34subject, directly or indirectly, any employee, applicant, or other
35person to a test for the presence of a genetic characteristic.

36(p) Nothing in this section shall be interpreted as preventing the
37ability of employers to identify members of the military or veterans
P9    1for purposes of awarding a veteran’s preference as permitted by
2law.



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