Amended in Senate May 4, 2016

Amended in Senate June 19, 2015

Amended in Assembly May 28, 2015

Amended in Assembly April 20, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1383


Introduced by Assembly Member Jones

(Coauthors: Assembly Members Achadjian, Brough, and Chang)

(Coauthor: Senator Vidak)

February 27, 2015


An act to amend Section 12940 of, and to add Article 3 (commencing with Section 12958) to Chapter 6 of Part 2.8 of Division 3 of Title 2 of, the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1383, as amended, Jones. Veterans preferences: voluntary policy.

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. The California Fair Employment and Housing Act provides that nothing in that act relating to discrimination on account of sex affects the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.

This bill would enact the Voluntary Veterans’ Preference Employment Policy Act to authorize a private employer to establish and maintain a written veterans’ preference employmentbegin delete policyend deletebegin insert policy, to be applied uniformly to hiring decisions,end insert to give a voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. The bill would provide that the granting of a veterans’ preference pursuant to the bill, in and of itself, shall be deemed not to violate any local or state equal employment opportunity law or regulation, including, but not limited to, the antidiscrimination provisions of the California Fair Employment and Housing Act. The bill would revise the existing veteran status provision in the California Fair Employment and Housing Act to remove references to discrimination on account of sex and to Vietnam-era veterans, and would, instead, provide that nothing in that act relating to discrimination affects the right of an employer to use veteran status as a factor in hiring decisions if the employer maintains a veterans’ preference employment policy established in accordance with the Voluntary Veterans’ Preference Employment Policy Act.

begin delete

The bill would incorporate changes to Section 12940 of the Government Code proposed by both this bill and AB 987 which would become operative only if both bills are enacted and become effective on or before January 1, 2016, and this bill is enacted last.

end delete

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

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

begin delete
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:

P3    1(a) For an employer, because of the race, religious creed, color,
2national origin, ancestry, physical disability, mental disability,
3medical condition, genetic information, marital status, sex, gender,
4gender identity, gender expression, age, sexual orientation, or
5military and veteran status of any person, to refuse to hire or
6employ the person or to refuse to select the person for a training
7program leading to employment, or to bar or to discharge the
8person from employment or from a training program leading to
9employment, or to discriminate against the person in compensation
10or in terms, conditions, or privileges of employment.

11(1) This part does not prohibit an employer from refusing to
12hire or discharging an employee with a physical or mental
13disability, or subject an employer to any legal liability resulting
14from the refusal to employ or the discharge of an employee with
15a physical or mental disability, where the employee, because of
16his or her physical or mental disability, is unable to perform his
17or her essential duties even with reasonable accommodations, or
18cannot perform those duties in a manner that would not endanger
19his or her health or safety or the health or safety of others even
20with reasonable accommodations.

21(2) This part does not prohibit an employer from refusing to
22hire or discharging an employee who, because of the employee’s
23medical condition, is unable to perform his or her essential duties
24even with reasonable accommodations, or cannot perform those
25 duties in a manner that would not endanger the employee’s health
26or safety or the health or safety of others even with reasonable
27accommodations. Nothing in this part shall subject an employer
28to any legal liability resulting from the refusal to employ or the
29discharge of an employee who, because of the employee’s medical
30condition, is unable to perform his or her essential duties, or cannot
31perform those duties in a manner that would not endanger the
32employee’s health or safety or the health or safety of others even
33with reasonable accommodations.

34(3) Nothing in this part relating to discrimination on account of
35marital status shall do either of the following:

36(A) Affect the right of an employer to reasonably regulate, for
37reasons of supervision, safety, security, or morale, the working of
38spouses in the same department, division, or facility, consistent
39with the rules and regulations adopted by the commission.

P4    1(B) Prohibit bona fide health plans from providing additional
2or greater benefits to employees with dependents than to those
3employees without or with fewer dependents.

4(4) Nothing in this part relating to discrimination shall affect
5the right of an employer to use veteran status as a factor in hiring
6decisions if the employer maintains a veterans’ preference
7employment policy established in accordance with Article 3
8(commencing with Section 12958).

9(5) (A) This part does not prohibit an employer from refusing
10to employ an individual because of his or her age if the law
11compels or provides for that refusal. Promotions within the existing
12staff, hiring or promotion on the basis of experience and training,
13rehiring on the basis of seniority and prior service with the
14employer, or hiring under an established recruiting program from
15high schools, colleges, universities, or trade schools do not, in and
16of themselves, constitute unlawful employment practices.

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

25(b) For a labor organization, because of the race, religious creed,
26color, national origin, ancestry, physical disability, mental
27disability, medical condition, genetic information, marital status,
28sex, gender, gender identity, gender expression, age, sexual
29orientation, or military and veteran status of any person, to exclude,
30expel, or restrict from its membership the person, or to provide
31only second-class or segregated membership or to discriminate
32against any person because of the race, religious creed, color,
33national origin, ancestry, physical disability, mental disability,
34medical condition, genetic information, marital status, sex, gender,
35gender identity, gender expression, age, sexual orientation, or
36military and veteran status of the person in the election of officers
37 of the labor organization or in the selection of the labor
38organization’s staff or to discriminate in any way against any of
39its members, any employer, or any person employed by an
40employer.

P5    1(c) For any person to discriminate against any person in the
2selection, termination, training, or other terms or treatment of that
3person in any apprenticeship training program, any other training
4program leading to employment, an unpaid internship, or another
5limited duration program to provide unpaid work experience for
6that person because of the race, religious creed, color, national
7origin, ancestry, physical disability, mental disability, medical
8condition, genetic information, marital status, sex, gender, gender
9identity, gender expression, age, sexual orientation, or military
10and veteran status of the person discriminated against.

11(d) For any employer or employment agency to print or circulate
12or cause to be printed or circulated any publication, or to make
13any nonjob-related inquiry of an employee or applicant, either
14verbal or through use of an application form, that expresses,
15directly or indirectly, any limitation, specification, or discrimination
16as to race, religious creed, color, national origin, ancestry, physical
17disability, mental disability, medical condition, genetic information,
18marital status, sex, gender, gender identity, gender expression,
19age, sexual orientation, or military and veteran status, or any intent
20to make any such limitation, specification, or discrimination. This
21part does not prohibit an employer or employment agency from
22inquiring into the age of an applicant or from specifying age
23limitations, where the law compels or provides for that action.

24(e) (1) Except as provided in paragraph (2) or (3), for any
25employer or employment agency to require any medical or
26psychological examination of an applicant, to make any medical
27or psychological inquiry of an applicant, to make any inquiry
28whether an applicant has a mental disability, physical disability,
29or medical condition, or to make any inquiry regarding the nature
30or severity of a physical disability, mental disability, or medical
31condition.

32(2) Notwithstanding paragraph (1), an employer or employment
33agency may inquire into the ability of an applicant to perform
34job-related functions and may respond to an applicant’s request
35for reasonable accommodation.

36(3) Notwithstanding paragraph (1), an employer or employment
37agency may require a medical or psychological examination or
38make a medical or psychological inquiry of a job applicant after
39an employment offer has been made but prior to the
40commencement of employment duties, provided that the
P6    1examination or inquiry is job related and consistent with business
2necessity and that all entering employees in the same job
3classification are subject to the same examination or inquiry.

4(f) (1) Except as provided in paragraph (2), for any employer
5or employment agency to require any medical or psychological
6examination of an employee, to make any medical or psychological
7inquiry of an employee, to make any inquiry whether an employee
8has a mental disability, physical disability, or medical condition,
9or to make any inquiry regarding the nature or severity of a physical
10disability, mental disability, or medical condition.

11(2) Notwithstanding paragraph (1), an employer or employment
12agency may require any examinations or inquiries that the employer
13or employment agency can show to be job related and consistent
14with business necessity. An employer or employment agency may
15conduct voluntary medical examinations, including voluntary
16medical histories that are part of an employee health program
17available to employees at that worksite.

18(g) For any employer, labor organization, or employment agency
19to harass, discharge, expel, or otherwise discriminate against any
20person because the person has made a report pursuant to Section
2111161.8 of the Penal Code, which prohibits retaliation against
22hospital employees who report suspected patient abuse by health
23facilities or community care facilities.

24(h) For any employer, labor organization, employment agency,
25or person to discharge, expel, or otherwise discriminate against
26any person because the person has opposed any practices forbidden
27under this part or because the person has filed a complaint, testified,
28or assisted in any proceeding under this part.

29(i) For any person to aid, abet, incite, compel, or coerce the
30doing of any of the acts forbidden under this part, or to attempt to
31do so.

32(j) (1) For an employer, labor organization, employment agency,
33apprenticeship training program, or any training program leading
34to employment, or any other person, because of race, religious
35creed, color, national origin, ancestry, physical disability, mental
36disability, medical condition, genetic information, marital status,
37sex, gender, gender identity, gender expression, age, sexual
38orientation, or military and veteran status, to harass an employee,
39an applicant, an unpaid intern or volunteer, or a person providing
40services pursuant to a contract. Harassment of an employee, an
P7    1applicant, an unpaid intern or volunteer, or a person providing
2services pursuant to a contract by an employee, other than an agent
3or supervisor, shall be unlawful if the entity, or its agents or
4supervisors, knows or should have known of this conduct and fails
5to take immediate and appropriate corrective action. An employer
6may also be responsible for the acts of nonemployees, with respect
7to sexual harassment of employees, applicants, unpaid interns or
8volunteers, or persons providing services pursuant to a contract in
9the workplace, where the employer, or its agents or supervisors,
10knows or should have known of the conduct and fails to take
11immediate and appropriate corrective action. In reviewing cases
12involving the acts of nonemployees, the extent of the employer’s
13control and any other legal responsibility that the employer may
14have with respect to the conduct of those nonemployees shall be
15considered. An entity shall take all reasonable steps to prevent
16harassment from occurring. Loss of tangible job benefits shall not
17be necessary in order to establish harassment.

18(2) This subdivision is declaratory of existing law, except for
19the new duties imposed on employers with regard to harassment.

20(3) An employee of an entity subject to this subdivision is
21personally liable for any harassment prohibited by this section that
22is perpetrated by the employee, regardless of whether the employer
23or covered entity knows or should have known of the conduct and
24fails to take immediate and appropriate corrective action.

25(4) (A) For purposes of this subdivision only, “employer” means
26any person regularly employing one or more persons or regularly
27receiving the services of one or more persons providing services
28pursuant to a contract, or any person acting as an agent of an
29employer, directly or indirectly, the state, or any political or civil
30subdivision of the state, and cities. The definition of “employer”
31in subdivision (d) of Section 12926 applies to all provisions of this
32section other than this subdivision.

33(B) Notwithstanding subparagraph (A), for purposes of this
34subdivision, “employer” does not include a religious association
35or corporation not organized for private profit, except as provided
36in Section 12926.2.

37(C) For purposes of this subdivision, “harassment” because of
38sex includes sexual harassment, gender harassment, and harassment
39based on pregnancy, childbirth, or related medical conditions.
40Sexually harassing conduct need not be motivated by sexual desire.

P8    1(5) For purposes of this subdivision, “a person providing services
2pursuant to a contract” means a person who meets all of the
3following criteria:

4(A) The person has the right to control the performance of the
5contract for services and discretion as to the manner of
6performance.

7(B) The person is customarily engaged in an independently
8established business.

9(C) The person has control over the time and place the work is
10performed, supplies the tools and instruments used in the work,
11and performs work that requires a particular skill not ordinarily
12used in the course of the employer’s work.

13(k) For an employer, labor organization, employment agency,
14apprenticeship training program, or any training program leading
15to employment, to fail to take all reasonable steps necessary to
16prevent discrimination and harassment from occurring.

17(l) (1) For an employer or other entity covered by this part to
18refuse to hire or employ a person or to refuse to select a person
19for a training program leading to employment or to bar or to
20discharge a person from employment or from a training program
21leading to employment, or to discriminate against a person in
22compensation or in terms, conditions, or privileges of employment
23because of a conflict between the person’s religious belief or
24observance and any employment requirement, unless the employer
25or other entity covered by this part demonstrates that it has explored
26any available reasonable alternative means of accommodating the
27religious belief or observance, including the possibilities of
28excusing the person from those duties that conflict with his or her
29religious belief or observance or permitting those duties to be
30performed at another time or by another person, but is unable to
31reasonably accommodate the religious belief or observance without
32undue hardship, as defined in subdivision (u) of Section 12926,
33on the conduct of the business of the employer or other entity
34covered by this part. Religious belief or observance, as used in
35this section, includes, but is not limited to, observance of a Sabbath
36or other religious holy day or days, reasonable time necessary for
37travel prior and subsequent to a religious observance, and religious
38dress practice and religious grooming practice as described in
39subdivision (q) of Section 12926. This subdivision shall also apply
40to an apprenticeship training program, an unpaid internship, and
P9    1any other program to provide unpaid experience for a person in
2the workplace or industry.

3(2) An accommodation of an individual’s religious dress practice
4or religious grooming practice is not reasonable if the
5accommodation requires segregation of the individual from other
6employees or the public.

7(3) An accommodation is not required under this subdivision
8if it would result in a violation of this part or any other law
9prohibiting discrimination or protecting civil rights, including
10subdivision (b) of Section 51 of the Civil Code and Section 11135
11of this code.

12(m) For an employer or other entity covered by this part to fail
13to make reasonable accommodation for the known physical or
14mental disability of an applicant or employee. Nothing in this
15subdivision or in paragraph (1) or (2) of subdivision (a) shall be
16construed to require an accommodation that is demonstrated by
17the employer or other covered entity to produce undue hardship,
18as defined in subdivision (u) of Section 12926, to its operation.

19(n) For an employer or other entity covered by this part to fail
20to engage in a timely, good faith, interactive process with the
21employee or applicant to determine effective reasonable
22accommodations, if any, in response to a request for reasonable
23accommodation by an employee or applicant with a known physical
24or mental disability or known medical condition.

25(o) For an employer or other entity covered by this part, to
26subject, directly or indirectly, any employee, applicant, or other
27person to a test for the presence of a genetic characteristic.

28(p) Nothing in this section shall be interpreted as preventing the
29ability of employers to identify members of the military or veterans
30for purposes of awarding a veteran’s preference as permitted by
31law.

32

SEC. 1.5.  

Section 12940 of the Government Code is amended
33to read:

34

12940.  

It is an unlawful employment practice, unless based
35upon a bona fide occupational qualification, or, except where based
36upon applicable security regulations established by the United
37States or the State of California:

38(a) For an employer, because of the race, religious creed, color,
39national origin, ancestry, physical disability, mental disability,
40medical condition, genetic information, marital status, sex, gender,
P10   1gender identity, gender expression, age, sexual orientation, or
2military and veteran status of any person, to refuse to hire or
3employ the person or to refuse to select the person for a training
4program leading to employment, or to bar or to discharge the
5person from employment or from a training program leading to
6employment, or to discriminate against the person in compensation
7or in terms, conditions, or privileges of employment.

8(1) This part does not prohibit an employer from refusing to
9hire or discharging an employee with a physical or mental
10disability, or subject an employer to any legal liability resulting
11from the refusal to employ or the discharge of an employee with
12a physical or mental disability, where the employee, because of
13his or her physical or mental disability, is unable to perform his
14or her essential duties even with reasonable accommodations, or
15cannot perform those duties in a manner that would not endanger
16his or her health or safety or the health or safety of others even
17with reasonable accommodations.

18(2) This part does not prohibit an employer from refusing to
19hire or discharging an employee who, because of the employee’s
20medical condition, is unable to perform his or her essential duties
21even with reasonable accommodations, or cannot perform those
22duties in a manner that would not endanger the employee’s health
23or safety or the health or safety of others even with reasonable
24accommodations. Nothing in this part shall subject an employer
25to any legal liability resulting from the refusal to employ or the
26discharge of an employee who, because of the employee’s medical
27condition, is unable to perform his or her essential duties, or cannot
28perform those duties in a manner that would not endanger the
29employee’s health or safety or the health or safety of others even
30with reasonable accommodations.

31(3) Nothing in this part relating to discrimination on account of
32marital status shall do either of the following:

33(A) Affect the right of an employer to reasonably regulate, for
34reasons of supervision, safety, security, or morale, the working of
35spouses in the same department, division, or facility, consistent
36with the rules and regulations adopted by the commission.

37(B) Prohibit bona fide health plans from providing additional
38or greater benefits to employees with dependents than to those
39employees without or with fewer dependents.

P11   1(4) Nothing in this part relating to discrimination shall affect
2the right of an employer to use veteran status as a factor in hiring
3decisions if the employer maintains a veterans’ preference
4employment policy established in accordance with Article 3
5(commencing with Section 12958).

6(5) (A) This part does not prohibit an employer from refusing
7to employ an individual because of his or her age if the law
8compels or provides for that refusal. Promotions within the existing
9staff, hiring or promotion on the basis of experience and training,
10rehiring on the basis of seniority and prior service with the
11employer, or hiring under an established recruiting program from
12high schools, colleges, universities, or trade schools do not, in and
13of themselves, constitute unlawful employment practices.

14(B) The provisions of this part relating to discrimination on the
15basis of age do not prohibit an employer from providing health
16benefits or health care reimbursement plans to retired persons that
17are altered, reduced, or eliminated when the person becomes
18eligible for Medicare health benefits. This subparagraph applies
19to all retiree health benefit plans and contractual provisions or
20practices concerning retiree health benefits and health care
21reimbursement plans in effect on or after January 1, 2011.

22(b) For a labor organization, because of the race, religious creed,
23color, national origin, ancestry, physical disability, mental
24disability, medical condition, genetic information, marital status,
25sex, gender, gender identity, gender expression, age, sexual
26orientation, or military and veteran status of any person, to exclude,
27expel, or restrict from its membership the person, or to provide
28only second-class or segregated membership or to discriminate
29against any person because of the race, religious creed, color,
30national origin, ancestry, physical disability, mental disability,
31medical condition, genetic information, marital status, sex, gender,
32gender identity, gender expression, age, sexual orientation, or
33military and veteran status of the person in the election of officers
34of the labor organization or in the selection of the labor
35organization’s staff or to discriminate in any way against any of
36its members, any employer, or any person employed by an
37employer.

38(c) For any person to discriminate against any person in the
39selection, termination, training, or other terms or treatment of that
40person in any apprenticeship training program, any other training
P12   1program leading to employment, an unpaid internship, or another
2limited duration program to provide unpaid work experience for
3that person because of the race, religious creed, color, national
4origin, ancestry, physical disability, mental disability, medical
5condition, genetic information, marital status, sex, gender, gender
6identity, gender expression, age, sexual orientation, or military
7and veteran status of the person discriminated against.

8(d) For any employer or employment agency to print or circulate
9or cause to be printed or circulated any publication, or to make
10any nonjob-related inquiry of an employee or applicant, either
11verbal or through use of an application form, that expresses,
12directly or indirectly, any limitation, specification, or discrimination
13as to race, religious creed, color, national origin, ancestry, physical
14disability, mental disability, medical condition, genetic information,
15marital status, sex, gender, gender identity, gender expression,
16age, sexual orientation, or military and veteran status, or any intent
17to make any such limitation, specification, or discrimination. This
18part does not prohibit an employer or employment agency from
19inquiring into the age of an applicant or from specifying age
20limitations, where the law compels or provides for that action.

21(e) (1) Except as provided in paragraph (2) or (3), for any
22employer or employment agency to require any medical or
23psychological examination of an applicant, to make any medical
24or psychological inquiry of an applicant, to make any inquiry
25whether an applicant has a mental disability, physical disability,
26or medical condition, or to make any inquiry regarding the nature
27or severity of a physical disability, mental disability, or medical
28condition.

29(2) Notwithstanding paragraph (1), an employer or employment
30agency may inquire into the ability of an applicant to perform
31job-related functions and may respond to an applicant’s request
32for reasonable accommodation.

33(3) Notwithstanding paragraph (1), an employer or employment
34agency may require a medical or psychological examination or
35make a medical or psychological inquiry of a job applicant after
36an employment offer has been made but prior to the
37commencement of employment duties, provided that the
38examination or inquiry is job related and consistent with business
39necessity and that all entering employees in the same job
40classification are subject to the same examination or inquiry.

P13   1(f) (1) Except as provided in paragraph (2), for any employer
2or employment agency to require any medical or psychological
3examination of an employee, to make any medical or psychological
4inquiry of an employee, to make any inquiry whether an employee
5has a mental disability, physical disability, or medical condition,
6or to make any inquiry regarding the nature or severity of a physical
7disability, mental disability, or medical condition.

8(2) Notwithstanding paragraph (1), an employer or employment
9agency may require any examinations or inquiries that the employer
10or employment agency can show to be job related and consistent
11with business necessity. An employer or employment agency may
12conduct voluntary medical examinations, including voluntary
13medical histories that are part of an employee health program
14available to employees at that worksite.

15(g) For any employer, labor organization, or employment agency
16to harass, discharge, expel, or otherwise discriminate against any
17person because the person has made a report pursuant to Section
1811161.8 of the Penal Code, which prohibits retaliation against
19 hospital employees who report suspected patient abuse by health
20facilities or community care facilities.

21(h) For any employer, labor organization, employment agency,
22or person to discharge, expel, or otherwise discriminate against
23any person because the person has opposed any practices forbidden
24under this part or because the person has filed a complaint, testified,
25or assisted in any proceeding under this part.

26(i) For any person to aid, abet, incite, compel, or coerce the
27doing of any of the acts forbidden under this part, or to attempt to
28do so.

29(j) (1) For an employer, labor organization, employment agency,
30apprenticeship training program, or any training program leading
31to employment, or any other person, because of race, religious
32creed, color, national origin, ancestry, physical disability, mental
33disability, medical condition, genetic information, marital status,
34sex, gender, gender identity, gender expression, age, sexual
35orientation, or military and veteran status, to harass an employee,
36an applicant, an unpaid intern or volunteer, or a person providing
37services pursuant to a contract. Harassment of an employee, an
38applicant, an unpaid intern or volunteer, or a person providing
39services pursuant to a contract by an employee, other than an agent
40or supervisor, shall be unlawful if the entity, or its agents or
P14   1supervisors, knows or should have known of this conduct and fails
2to take immediate and appropriate corrective action. An employer
3may also be responsible for the acts of nonemployees, with respect
4to sexual harassment of employees, applicants, unpaid interns or
5volunteers, or persons providing services pursuant to a contract in
6the workplace, where the employer, or its agents or supervisors,
7knows or should have known of the conduct and fails to take
8immediate and appropriate corrective action. In reviewing cases
9involving the acts of nonemployees, the extent of the employer’s
10control and any other legal responsibility that the employer may
11have with respect to the conduct of those nonemployees shall be
12considered. An entity shall take all reasonable steps to prevent
13harassment from occurring. Loss of tangible job benefits shall not
14be necessary in order to establish harassment.

15(2) This subdivision is declaratory of existing law, except for
16the new duties imposed on employers with regard to harassment.

17(3) An employee of an entity subject to this subdivision is
18personally liable for any harassment prohibited by this section that
19is perpetrated by the employee, regardless of whether the employer
20or covered entity knows or should have known of the conduct and
21fails to take immediate and appropriate corrective action.

22(4) (A) For purposes of this subdivision only, “employer” means
23any person regularly employing one or more persons or regularly
24receiving the services of one or more persons providing services
25pursuant to a contract, or any person acting as an agent of an
26employer, directly or indirectly, the state, or any political or civil
27subdivision of the state, and cities. The definition of “employer”
28in subdivision (d) of Section 12926 applies to all provisions of this
29section other than this subdivision.

30(B) Notwithstanding subparagraph (A), for purposes of this
31subdivision, “employer” does not include a religious association
32or corporation not organized for private profit, except as provided
33in Section 12926.2.

34(C) For purposes of this subdivision, “harassment” because of
35sex includes sexual harassment, gender harassment, and harassment
36based on pregnancy, childbirth, or related medical conditions.
37Sexually harassing conduct need not be motivated by sexual desire.

38(5) For purposes of this subdivision, “a person providing services
39pursuant to a contract” means a person who meets all of the
40following criteria:

P15   1(A) The person has the right to control the performance of the
2contract for services and discretion as to the manner of
3performance.

4(B) The person is customarily engaged in an independently
5established business.

6(C) The person has control over the time and place the work is
7performed, supplies the tools and instruments used in the work,
8and performs work that requires a particular skill not ordinarily
9used in the course of the employer’s work.

10(k) For an employer, labor organization, employment agency,
11apprenticeship training program, or any training program leading
12to employment, to fail to take all reasonable steps necessary to
13prevent discrimination and harassment from occurring.

14(l) (1) For an employer or other entity covered by this part to
15refuse to hire or employ a person or to refuse to select a person
16for a training program leading to employment or to bar or to
17discharge a person from employment or from a training program
18leading to employment, or to discriminate against a person in
19compensation or in terms, conditions, or privileges of employment
20because of a conflict between the person’s religious belief or
21observance and any employment requirement, unless the employer
22or other entity covered by this part demonstrates that it has explored
23any available reasonable alternative means of accommodating the
24religious belief or observance, including the possibilities of
25excusing the person from those duties that conflict with his or her
26religious belief or observance or permitting those duties to be
27performed at another time or by another person, but is unable to
28reasonably accommodate the religious belief or observance without
29undue hardship, as defined in subdivision (u) of Section 12926,
30on the conduct of the business of the employer or other entity
31covered by this part. Religious belief or observance, as used in
32this section, includes, but is not limited to, observance of a Sabbath
33or other religious holy day or days, reasonable time necessary for
34travel prior and subsequent to a religious observance, and religious
35dress practice and religious grooming practice as described in
36subdivision (q) of Section 12926. This subdivision shall also apply
37to an apprenticeship training program, an unpaid internship, and
38any other program to provide unpaid experience for a person in
39the workplace or industry.

P16   1(2) An accommodation of an individual’s religious dress practice
2or religious grooming practice is not reasonable if the
3accommodation requires segregation of the individual from other
4employees or the public.

5(3) An accommodation is not required under this subdivision
6if it would result in a violation of this part or any other law
7prohibiting discrimination or protecting civil rights, including
8subdivision (b) of Section 51 of the Civil Code and Section 11135
9of this code.

10(4) For an employer or other entity covered by this part to, in
11addition to the employee protections provided pursuant to
12subdivision (h), retaliate or otherwise discriminate against a person
13for requesting accommodation under this subdivision, regardless
14of whether the request was granted.

15(m) (1) For an employer or other entity covered by this part to
16fail to make reasonable accommodation for the known physical
17or mental disability of an applicant or employee. Nothing in this
18subdivision or in paragraph (1) or (2) of subdivision (a) shall be
19construed to require an accommodation that is demonstrated by
20the employer or other covered entity to produce undue hardship,
21as defined in subdivision (u) of Section 12926, to its operation.

22(2) For an employer or other entity covered by this part to, in
23addition to the employee protections provided pursuant to
24subdivision (h), retaliate or otherwise discriminate against a person
25for requesting accommodation under this subdivision, regardless
26of whether the request was granted.

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
38for purposes of awarding a veteran’s preference as permitted by
39law.

end delete
P17   1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 12940 of the end insertbegin insertGovernment Codeend insertbegin insert is
2amended to read:end insert

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
31duties 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
38employee’s health or safety or the health or safety of others even
39with reasonable accommodations.

P18   1(3) Nothing in this part relating to discrimination on account of
2marital status shall do either of the following:

3(A) Affect the right of an employer to reasonably regulate, for
4reasons of supervision, safety, security, or morale, the working of
5spouses in the same department, division, or facility, consistent
6with the rules and regulations adopted by the commission.

7(B) Prohibit bona fide health plans from providing additional
8or greater benefits to employees with dependents than to those
9employees without or with fewer dependents.

10(4) Nothing in this part relating to discriminationbegin delete on account of
11sexend delete
shall affect the right of an employer to use veteran status as a
12factor inbegin delete employee selection or to give special consideration to
13Vietnam-era veterans.end delete
begin insert hiring decisions if the employer maintains
14a veterans’ preference employment policy established in
15accordance with Article 3 (commencing with Section 12958).end insert

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,
P19   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 against any employer or againstend deletebegin insert members, any
7employer, orend insert
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
P20   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
P21   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 subdivision are end deletebegin insertThis subdivision is end insert
26declaratory of existing law, except for the new duties imposed on
27employers with regard 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.

P22   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,
P23   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(4) For an employer or other entity covered by this part to, in
21addition to the employee protections provided pursuant to
22subdivision (h), retaliate or otherwise discriminate against a person
23for requesting accommodation under this subdivision, regardless
24of whether the request was granted.

25(m) (1) For an employer or other entity covered by this part to
26fail to make reasonable accommodation for the known physical
27or mental disability of an applicant or employee. Nothing in this
28subdivision or in paragraph (1) or (2) of subdivision (a) shall be
29construed to require an accommodation that is demonstrated by
30the employer or other covered entity to produce undue hardship,
31as defined in subdivision (u) of Section 12926, to its operation.

32(2) For an employer or other entity covered by this part to, in
33 addition to the employee protections provided pursuant to
34subdivision (h), retaliate or otherwise discriminate against a person
35for requesting accommodation under this subdivision, regardless
36of whether the request was granted.

37(n) For an employer or other entity covered by this part to fail
38to engage in a timely, good faith, interactive process with the
39employee or applicant to determine effective reasonable
40accommodations, if any, in response to a request for reasonable
P24   1accommodation by an employee or applicant with a known physical
2or mental disability or known medical condition.

3(o) For an employer or other entity covered by this part, to
4subject, directly or indirectly, any employee, applicant, or other
5person to a test for the presence of a genetic characteristic.

6(p) Nothing in this section shall be interpreted as preventing the
7ability of employers to identify members of the military or veterans
8for purposes of awarding a veteran’s preference as permitted by
9law.

10

SEC. 2.  

Article 3 (commencing with Section 12958) is added
11to Chapter 6 of Part 2.8 of Division 3 of Title 2 of the Government
12Code
, to read:

13 

14Article 3.  Voluntary Veterans’ Preference Employment Policies
15

 

16

12958.  

This article shall be known, and may be cited, as the
17“Voluntary Veterans’ Preference Employment Policy Act.”

18

12958.1.  

As used in this article:

19(a) “DD 214” means United States Department of Defense Form
20214 or a similarly effective form issued by that department relating
21to separation from military service.

22(b) “Private employer” means a business entity in the private
23sector of this state with one or more employees.

24(c) “Veteran” means a person who served on active duty in the
25Armed Forces of the United States who was discharged or released
26with an honorable discharge.

27(d) “Veterans’ preference employment policy” means a private
28employer’s voluntary preference for hiring or retaining a veteran
29over another qualified applicant or employee.

30

12958.2.  

(a) Notwithstanding any other law, a private employer
31may establish and maintain a written veterans’ preference
32employmentbegin delete policy.end deletebegin insert policy, which shall be applied uniformly to
33hiring decisions.end insert

34(b) An employer with a veterans’ preference employment policy
35may require that a veteran submit a DD 214 to be eligible for the
36preference.

37(c) The granting of a veterans’ preference pursuant to this article,
38in and of itself, shall be deemed not to violate any local or state
39equal employment opportunity law or regulation, including, but
40not limited to, this chapter.

P25   1(d) The Department of Veterans Affairs shall assist any private
2employer in determining if an applicant is a veteran to the extent
3 permitted by law.

begin insert

4
(e) Nothing in this section shall be construed to authorize the
5establishment or use of a veterans’ preference employment policy
6for the purpose of discriminating against the employment applicant
7on the basis of any protected classification in subdivision (a) of
8Section 12940.

end insert
begin delete
9

SEC. 3.  

Section 1.5 of this bill incorporates amendments to
10Section 12940 of the Government Code proposed by both this bill
11and Assembly Bill 987. It shall only become operative if (1) both
12bills are enacted and become effective on or before January 1,
132016, (2) each bill amends Section 12940 of the Government Code,
14and (3) this bill is enacted after Assembly Bill 987, in which case
15Section 1 of this bill shall not become operative.

end delete


O

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