BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 1670 A
Assembly Judiciary Committee B
As Amended June 1, 1999
Hearing Date: August 17, 1999 1
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SUBJECT
Civil Rights: Employment and Housing
DESCRIPTION
This is an omnibus bill which would make several changes to
the California Fair Employment and Housing Act (FEHA) and
Civil Code relating to employment and housing
discrimination. Specifically, the key provisions of this
bill would:
Increase the amount of damages and administrative fines
that may be awarded by the Fair Employment and Housing
Commission in employment discrimination cases from
$50,000 to $150,000, and permit a court to award expert
witness fees to a prevailing party in FEHA cases.
Extend harassment protections under FEHA to contract
workers.
Require employers to provide reasonable accommodations to
pregnant employees.
Clarify that genetic testing of employees is prohibited.
Expand the class of employers subject to FEHA's
prohibition against discrimination on the basis of mental
disability from those with 15 or more employees to those
with 5 or more employees.
Clarify that protections against housing and employment
(more)
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discrimination cover discrimination based upon a victim's
perceived membership in a protected class.
Define "supervisor" under the FEHA as it is currently
defined in the California Agricultural Labor Relations
Act.
BACKGROUND
Last session a coalition of housing, labor, disability,
civil rights, and employment law organizations brought
forward AB 310 (Kuehl), of 1998, a bill similar to AB 1670.
Many of the proposals were taken from existing federal
law or regulations in the areas of housing and employment.
The stated goal of supporters was to give California
employers clear guidance, and provide harmony between
federal and state employment laws in these areas, in order
to facilitate the "vigorous enforcement" of our
anti-discrimination laws to which then-Governor Wilson
committed to our state. Despite this commitment,
then-Governor Wilson vetoed AB 310 because, "This bill
would give protection against discrimination to
non-employees who are independent contractors engaged in
independently established businesses with, among other
things, the right to control how and when their work is
performed."
This year AB 1670 is co-sponsored by the same coalition for
civil rights, joined now by the Office of the Attorney
General and the Fair Employment and Housing Commission as
co-sponsors.
CHANGES TO EXISTING LAW
1. Existing law prohibits business establishments from
discriminating against,
boycotting or blacklisting, or refusing to buy from, sell
to, or trade with, any person because of the race, creed,
religion, color, national origin, sex, or disability of
that person or the person's partners, members,
stockholders, directors, officers, managers,
superintendents, agents, employees, business associates,
suppliers, or customers. (Civil Code Section 51.5, the
Unruh Civil Rights Act.)
This bill would add:
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Protection for persons perceived to have any of
those characteristics, and;
"Refusal to contract " as a prohibited act.
2. Existing law prohibits employment and housing
discrimination on the basis of race, religious creed,
color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex
or age. (Government Code Section 12940 et. Seq., the Fair
Employment and Housing Act.)
This bill would add discrimination based upon:
The perception of a person violating this section that
the victim belongs to
a protected category, and;
Association with persons in a protected category.
3. Existing law provides that the combined amount of
damages and administrative fines that may be awarded by
the Fair Employment and Housing Commission in employment
discrimination cases is capped at $50,000. (Section
12970 (a)(3).) However there is no cap at all on the
amount of damages that may be awarded by the Commission
in housing discrimination cases. (Section 12987(a).)
This bill would increase the amount of damages and
administrative fines that
may be awarded by the Fair Employment and Housing
Commission in employment discrimination cases from
$50,000 to $150,000.
4. Existing law provides that the Department of Fair
Employment and Housing
shall respond to complaints of discriminatory practices
by employers and owners of housing accommodations.
This bill would:
Declare that the opportunity to seek, obtain, and
hold housing without discrimination on any basis
protected under Civil Code Section 51 is a civil
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right.
Declare that it is an unlawful housing practice to
harass a tenant or prospective tenant, buyer or
prospective buyer on any of the bases protected under
FEHA.
5. Existing law authorizes the court in actions brought
under FEHA to grant
any relief normally available to courts in civil
actions. In addition, the court may order any other
relief in FEHA cases that, "in the judgment of the court,
will effectuate" the purpose of the Act. (Section 12965
(c)(3).)
This bill would:
Permit a court to award expert witness fees to a
prevailing party in FEHA cases.
Add that the FEHA may be enforced by private
parties against agencies which receive public funds
through civil actions for equitable relief.
Authorize a court in an employment action under
FEHA to require employers to conduct employee and
supervisor training on the requirements of FEHA and
the rights and remedies available for violation.
6. Existing law makes it an unlawful employment practice
under FEHA for an employer to refuse to transfer a
pregnant female employee, upon her request, to a less
strenuous or hazardous position for the duration of her
pregnancy.
This bill would require employers to provide
reasonable accommodations to
pregnant employees.
7. Existing law declares that it is an unlawful
employment practice for employers, including employer
agents, among others, to harass an employee
or applicant on the basis of various protected
characteristics. However, independent contractors are
not protected from harassment.
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This bill would add a person providing services
pursuant to a contract, which the bill would define as:
The person has the right to control the performance
of the contract for services and discretion as to the
manner of performance.
The person is customarily engaged in an
independently established business.
The person has control over the time and place the
work is performed, and performs work that requires a
particular skill not ordinarily used in the employer's
work.
8. Existing law, FEHA, prohibits employment
discrimination against individuals with physical
disabilities, mental disabilities, or medical conditions.
The FEHA applies to private employers of 15 or more
employees for discrimination on the basis of mental
disability, and private employers of 5 or more employees
for discrimination on the basis of physical disability.
This bill would apply FEHA to private employers of five
or more employees for discrimination on the basis of
mental disability.
9. Existing law prohibits employment discrimination on
the basis of genetic characteristics.
This bill would clarify that genetic testing of
employees is also prohibited.
10. Existing law does not contain a definition of
"supervisor" in the FEHA.
Existing law defines "supervisor" under the California
Agricultural Labor Relations Act (CALRA) as any
individual having the authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward, or discipline other
employees, or the responsibility to direct them, or to
adjust their grievances, or effectively to recommend
that action, if in connection with the foregoing, the
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exercise of that authority is not of a merely routine
or clerical nature, but requires the use of independent
judgment.
This bill would apply the CALRA definition of
supervisor to FEHA.
COMMENT
1. Stated need for legislation
The author states in support of this measure, "Like
AB 310, this bill seeks to strengthen and clarify a host
of key civil rights protections contained in FEHA and
other civil rights statutes. The proposed changes
continue to incorporate recommendations made by a broad
coalition of the state's housing, labor, disability,
civil rights, and employment law experts and
organizations. Many of the proposals are taken from
existing federal law or regulations in the areas of
housing and employment, and many have already been
approved by the Legislature in prior sessions.
"It is the Committee's goal with this legislation to
provide California employers with clearer guidance about
the Legislature's intent regarding particular provisions
of state discrimination laws. It also seeks to better
harmonize federal and state employment laws in these
areas to facilitate the 'vigorous enforcement' of our
anti-discrimination laws to which the Legislature has
long been committed."
2. Discussion of provisions which have drawn opposition
a) Extending FEHA harassment protection to contract
employees
This bill would allow a person providing services
pursuant to a contract to sue for harassment under
FEHA. This is a limited protection for contract
workers, as AB 1670 would not extend the full
employment discrimination prohibitions contained in
FEHA to them.
The bill's supporters acknowledge that sexual
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harassment laws were originally premised on the idea
that a woman could not get away from a harasser's
advances without losing her job, or suffering some
other adverse employment action. Independent
contractors were excluded from the employment
protection statutes, as it was considered that they
could get away, not being bound as an employee to the
bad situation. However, the dynamics of employment
have changed in recent years, they say. Today
employers have substantially increased the use of
contract workers as a cost savings measure. With the
switch from employment to contract status, "the duties
remained the same, only the benefits changed."
Situations where a contract employee could be
subjected to harassment without recourse include a
self-employed specialist such as a graphic designer,
who works "in-house" on a company's newsletter; or a
long-term "independent contractor," who performs as a
traditional employee, but is never made a true
employee--thereby saving the employer from paying
taxes and benefits.
Opponents object to this provision fearing it
"obliterates the distinction between employees and
independent contractors." The California
Manufacturer's Association believes, "This could
result in employers being held liable for the payment
of worker's compensation insurance, payroll taxes,
etc., plus any penalties and interest that may
accrue." The Civil Justice Association of California
adds, "creating this exception to the independent
contractor status would simply open employers to
targeting for frivolous lawsuits by persons who have
little stake in trying to solve a potentially bad
worksite situation with something less than a lawsuit.
Where a serious harassment does occur, independent
contractors have recourse to laws relating to assault
and battery."
b) Raise the cap on employment discrimination damages
AB 1670 would increase the amount of damages and
administrative fines that may be awarded by the Fair
Employment and Housing Commission (the Commission) in
employment discrimination cases from $50,000 to
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$150,000. As noted above, there is no cap on the
amount of damages that may be awarded by the
Commission in housing discrimination cases.
According to the author, "It is hoped that this
augmentation in available damages that may be awarded
by the Commission under FEHA will make resolution of
discrimination complaints via the administrative
process rather than court more attractive to
plaintiffs. By raising the cap on
damage awards in employment discrimination cases, the
Committee
hopes to encourage more plaintiffs to choose the less
cumbersome, and less expensive, option of
administrative action over the more lengthy and costly
court option."
Opponents, such as the California Chamber of Commerce
claim that "the current level of $50,000 is a
legislative compromise, which gave to the DFEH the
authority to impose capped punitive damages. If any
further increase is appropriate, the same limit
should apply in employment cases filed with the civil
courts. The Civil Justice Association of California
(CJAC) adds, "tripling the $50,000 cap to $150,000 on
damages and administrative fines assessed by the
Department of Fair Employment and Housing makes the
employer liability similar to that of civil court.
This provision removes an employer's incentive to use
administrative remedies and would needlessly add to
the already clogged California Courts."
The current $50,000 was put in place through
passage of AB 311 (Moore), Ch. 911, Stats. 1992, which
provided the Commission constitutional authority to
award compensatory damages under FEHA, capped at
$50,000. Also included in AB 311 was a requirement
that the Commission report back to the Legislature on
the adequacy of the amount available to compensate
victims of discrimination and administrative fines
permitted by AB 311 by January 1, 1995.
The 1995 Commission report provided important support
for at least raising the $50,000 cap on damages and
administrative fines by stating that "The [current]
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$50,000 ceiling may ... have the unintended effect of
encouraging complainants to file civil actions in the
courts rather than making use of the administrative
forum. A primary reason for authorizing the
Commission to award emotional distress damages and
administrative fines was to encourage FEHA litigants
to remain in the administrative forum, which is
generally more timely and less costly to parties than
court litigation. Because the $50,000 ceiling is
relatively low compared to the five-, six-, and even
seven-figure awards sometimes ordered in FEHA court
suits, complainants may be inclined to take their
cases to court rather than stay in the administrative
forum. Thus, it may be appropriate to consider
raising the ceiling."
c) Supervisor defined
FEHA prohibits harassment of an employee . . . by an
employee other than an agent or supervisor if the
entity, or its agents or supervisors, knows or should
have known of this conduct and fails to take immediate
and
appropriate corrective action. There is no
definition of supervisor in FEHA. This bill would
import into FEHA the definition of supervisor from the
CALRA.
According to the author, "This common sense
definition should help clarify for employers and
employees alike, as well as for the courts, those
individuals who are acting with supervisorial
authority for purposes of the Fair Employment and
Housing Act."
The Civil Justice Association of California opposes
the bill, in part because "This broad definition (of
supervisor) will greatly expand liability in the
workplace. Employers will be vicariously liable for
alleged harassment or discrimination of supervisors,
even if the employer is unaware of the incident."
CJAC also opposes this provision of the bill in part
because of their belief that, "This bill extends the
liability of supervisors in discrimination and
harassment cases?"
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In Fiol v. Doelstedt (App.2 Dist. 1996) 50 Cal.App.4th
1318, the court held that "The 'agent of an employer'
language in section 12940, subdivision (h)(3)(A) does
not impose personal liability on a non-harassing
supervisor?" As this legislation only defines
supervisor, and does not address the Fiol holding on
personal liability, the opposition seems unfounded on
this point.
d) Accommodation of pregnant workers
AB 1670 would require an employer to reasonably
accommodate pregnant employees. Current law prohibits
discrimination against a worker based upon her
temporary disability of being pregnant. The law also
requires employers to make reasonable accommodation
for disabled employees, and it allows pregnant women
to request a transfer to a less strenuous position as
a means of accommodation.
The author states in support of this provision, " FEHA
does not yet expressly permit less costly, and often
more desirable and appropriate, accommodations for
pregnant employees that fall short of job transfer.
The proposed amendment to FEHA regarding pregnancy is
intended to
permit employers to allow pregnant employees to remain
in their current positions for longer time periods
without the need for transfer, while assuring that
less costly and disruptive steps (such as simply
permitting more frequent restroom breaks or rest
periods) are taken for pregnant employees who do not
want or need to be transferred from their current
positions.
The California Chamber of Commerce opposes this
provision, claiming, "There is no definition of what
reasonable accommodation is and this will lead to
increased litigation." However, reasonable
accommodation is defined in existing law as, "making
existing facilities used by employees readily
accessible to, and usable by, individuals with
disabilities, or job restructuring, part-time or
modified work schedules, reassignment to a vacant
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position, acquisition or modification of equipment or
devices." Government Code Section 12926 (m).
Therefore, this objection seems overstated.
e) Allowing courts to impose discrimination awareness
training as a remedy
This bill would provide that a court may require an
employer found to be in violation of FEHA to conduct
training of its employees, supervisors, and
management regarding the requirements of the Act.
FEHA currently authorizes a court to grant any relief
normally available to courts in civil actions. In
addition, the court may order any other relief in
FEHA cases that, "in the judgment of the court, will
effectuate" the purpose of the Act.
According to the author, "This bill simply clarifies
that such relief may include "a requirement that the
employer conduct training for all employees,
supervisors, and management on the requirements of
[FEHA], the rights and remedies of those who allege a
violation of [the Act], and the employer's internal
grievance procedures."
Both the California Chamber of Commerce and
California Manufacturer's Association (CMA) oppose
this provision, with CMA saying, "While the
employment discrimination may have been an isolated
case, a judge could require training to be conducted
for thousands of employees who are not involved at a
tremendous cost to the employer for no useful
purpose."
f) Expert witness fees
This bill would permit the court to award expert
witness fees to a prevailing party. The author
points out that "the federal counterpart to FEHA is
Title VII, which expressly permits the award of
expert witness fees as part of the reimbursement of
costs available to a prevailing party. (Section
2000e-5(k) of Title VII). In addition, this approach
is also consistent with the approach FEHA already
takes regarding attorney's fees and court costs; the
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Act permits a court in any civil action brought under
FEHA to award, with certain exceptions, the
prevailing party
reasonable attorney's fees and costs."
The California Manufacturer's Association opposes
this provision of the bill because, "allowing the
court to award expert witness fees to the prevailing
party will encourage dueling experts and increase
litigation."
g) Religious concerns seem misdirected
A number of opposition letters object to AB 1670
because of the writers' beliefs that it would extend
actions under FEHA to gay persons. The Seventh-Day
Adventist Church State Council and Traditional Values
Coalition (TVC) also oppose the bill based upon this
belief, with TVC saying that, "this bill takes sexual
behavior, homosexuality and bisexuality, and grants
minority status to them. Even though the author
stated on the Assembly Floor that the bill does not
effect (sic) homosexuality, that was not true.
Section 4 of AB 1670 would amend Section 12921 (b) of
the Government Code by adding 'any other basis
prohibited by Section 51 of the Civil Code is hereby
recognized as and declared to be a civil right.'
Section 51.7 of the Civil Code includes sexual
orientation."
This conclusion seems to stem from a mistake of
statutory construction. It is axiomatic that
expressio unius est exclusio alterius, the specific
expression of one thing excludes all others. Pratt,
Legal Writing: A Systematic Approach (2d Ed. 1990) p.
341. Under this rule of statutory construction a
reference to Section 51 does not extend to cover any
other section of law. This is true unless the bill
states an intention to extend beyond the referenced
provision, as may be accomplished by inclusion of a
phrase such as et sequentes (and the following), or a
listing of the additional provisions intended to be
covered.
In this instance, the bill only references Section
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51. Without any indication in the language of the
bill, and with the author clearly stating that the
bill does not cover homosexuals, the concern that
this bill somehow extends gay rights seems misplaced.
It should be noted that the Committee is also in
receipt of letters from churches and religious
organizations which support AB 1670. For example,
this from the Fresno Metro Ministry. "Fresno Metro
Ministry believes that all persons should be free
from harassment and discrimination in their home and
workplace and we think AB 1670 goes a long way
towards achieving that goal. In its thirty years,
Fresno Metro Ministry has seldom taken stands on
specific legislative proposals. However, in this
instance we feel compelled to do so. As a
faith-based organization, the board and members of
Fresno Metro Ministry have become increasingly
concerned about the negative tenor and tactics of
distortion and intimidation some in the
religious-political community are using?We find these
tactics to be objectionable and harmful to the
community, and not reflective of many members of the
faith community."
3. Major non-controverted provisions of the bill
a) Protection against discrimination based on
association and perceived membership in a protected
class
The bill would provide that FEHA's protections against
housing and employment discrimination, and Civil Code
Section 51.5's protections
against discrimination in boycotting, buying, selling,
and trading, also cover discrimination based upon the
perception that a victim is a member of a particular
protected class. It also amends Civil Code Section
51.5 to include the "refusal to contract with" as part
of the statute's discrimination protections.
In addition, the bill would state that FEHA's
protections against housing and employment
discrimination cover associational rights as well,
i.e., discrimination based upon perceptions about
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whom one may be associating with will now be
protected under the Act. The author offers that
discrimination involving the improper firing of an
African-American woman because she was dating a white
man, or discrimination against a prospective renter
because his friends are of a different racial
background, appropriately could be brought within
FEHA's protective umbrella.
b) Prohibition against harassment in housing
This bill would declare that it is an unlawful
housing practice for a housing owner to harass a
tenant or prospective tenant on any of the bases
protected under FEHA. According to the author, AB
1670 is intended to eliminate the current statutory
ambiguity noted by the court and adds the term
"harassment" to that part of the Act. The bill also
clarifies that the opportunity to seek, obtain, and
hold housing free from
discrimination is a civil right of equal import as
that right already expressed regarding
discrimination-free employment.
This provision is consistent with a recent state
court of appeal decision, Brown v. Smith (1997) 55
Cal.App. 4th 767, where the court held that while the
housing side of FEHA does not mention the word
"harassment," it is a variety of sex discrimination
and therefore subject to the protections of FEHA. (
Id. at 782.) In Brown, a tenant was subject to
severe instances of sexual harassment by her
landlord, who repeatedly pressured her for sexual
relations in exchange for favorable rent. The
appellate court clarified that even though FEHA does
not expressly mention harassment in its housing
discrimination proscriptions, the Act covers it as a
form of prohibited discrimination.
c) Private "equitable" remedy against entities
which receive state funds
AB 1670 would provide that the prohibition against
discrimination by agencies or entities receiving
state funds is enforceable through a civil action for
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equitable relief.
Under current law (subdivision (a) of Government Code
Section 11135),
"No person in the State of California shall, on the
basis of ethnic group identification, religion, age,
sex, color, or disability, be unlawfully denied the
benefits of, or be unlawfully subjected to
discrimination under, any program or activity that is
funded directly by the state or receives any
financial assistance from the state."
Thus, according to the author, "under this provision,
entities undertaking programs or activities that are
funded directly by the state, and entities that
receive financial assistance from the state, may not
unlawfully deny benefits or discriminate on the basis
of any of the specified protected categories.
As required by current Government Code Section
11139.5, the Secretary of the Health and Human
Services, together with the Fair Employment and
Housing Commission, have established regulations
determining what persons are protected by these
provisions and what practices are discriminatory.
(See 22 Cal. Code Reg. Section 98000 et. seq.).
Although the Commission's exclusive authority to
fashion remedies for discrimination is not limited by
these provisions, there has been some confusion in
the courts about the ability to bring a private cause
of action to enforce the prohibition against
discrimination by agencies or entities receiving
state funds. At least one California court of appeal
has held that there is no such right under Government
Code Section 11135.
Arriaga v. Loma Linda University (1992) 10 Cal.App.
4th 1556. However, a
panel of the Ninth Circuit Court of Appeal has held
that such a private right is available. Greater Los
Angeles Council on Deafness v. Zolin (9th Cir. 1987)
812 F.2d 1103, 1113-1114.
"The author states that, "this bill does not settle
that conflict about available enforcement remedies,
but it does clarify that the prohibition against
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discrimination by agencies or entities receiving
state funds is at least enforceable through a civil
action for equitable relief. This will permit
private individuals to seek judicial relief to force
agencies or entities receiving state funds to halt
their discriminatory practices."
4. Prior related legislation
SB 48 (Solis), of 1998, as passed by this Committee,
would have clarified that "harassment" includes creation
of a hostile work environment, and specifying that the
view point is from the reasonable person of the victim's
same gender.
These provisions were later amended out.
SB 1251 (Calderon), of 1998, as passed by this Committee,
would have allowed expert witness fees as a part of costs
awarded to a prevailing party, and removed the cap on
damages in employment discrimination under FEHA. The
bill was subsequently gutted and amended into an
educational reform bill.
SB 654 (Johnston), Ch. 99 Stats. of 1998, prohibited
discrimination under FEHA based upon genetic
characteristics.
AB 310 (Kuehl), of 1998 as passed by this Committee,
would have:
Defined employer to exclude religious corporations,
associations, educational institutions, or societies
with respect to the employment of individuals of a
particular religion to perform work connected with the
carrying on the activities of the religious group (the
current federal standard);
Defined "supervisor," and made a supervisor
individually liable if they fail to act upon claims of
harassment of an employee by another employee;
Extended the prohibition of sexual harassment to
include a person who provides services under contract;
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Allowed the Department of Fair Employment and
Housing (DFEH) to undertake independent investigations
of employment and housing discrimination;
Required that an employer reasonably accommodate a
pregnant female;
Defined "harassment" and clarify that it is viewed
from the reasonable person of the victim's same gender
standard;
Prohibited employers from engaging in genetic
testing, except where a bona fide occupational
qualification exists, and prohibited genetic trait
discrimination;
Lifted the monetary cap on the award of actual
damages for pain and suffering in employment
discrimination cases;
Allowed a court to award expert witness fees to a
prevailing party, and;
Provided that the FEHA does not prohibit a city and
county, or other political subdivision of this state
from providing or maintaining greater protections for
the classes of persons protected by the provisions
relating to housing discrimination.
Then-Governor Wilson vetoed AB 310, based upon the
independent contractor liability provision of the bill.
He stated, "this bill would, among other provisions, seek
to extend liability so as to hold employers liable for
the harassment of independent contractors. California's
discrimination laws are predicated on the traditional
employer and employee relationship, which under both the
Labor and Government Codes require certain duties and
responsibilities. This bill would give protection
against discrimination to non-employees who are
independent contractors engaged in independently
established businesses with, among other things, the
right to control how and
when their work is performed."
Support: American Federation of State, County and
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Municipal Employees; California School Employees
Association; California National Organization for
Women; Equal Rights Advocates; Legal Aid Society of
San Francisco; Lawyers Committee for Civil Rights of
the San Francisco Bay Area; California Conference
of the Amalgamated Transit Union; Engineers and
Scientists of California; Region 8 States Council of
the United Food and Commercial Workers; Hotel
Employees, Restaurant Employees International Union;
California Conference of Machinists; California
Commission On The Status Of Women; American
Association of University Women; Consumer Attorneys
of California
Opposition: California Employment Law Council; Civil
Justice Association of California; Seventh-day
Adventist Church State Council; Traditional
Values Coalition; California Manufacturers
Association; California Chamber of Commerce;
numerous individuals
HISTORY
Source: California Office of the Attorney General;
California Fair Employment and Housing Commission;
American Civil Liberties Union; California Labor
Federation AFL-CIO; California Civil Rights Coalition
Related Pending Legislation: None Known
Prior Legislation: SB 48 (Solis), of 1998, subsequently
amended to remove
relevant provisions and
vetoed; SB 1254 (Calderon)
subsequently amended into
an educational reform measure
Ch. 400, Stats. of 1998;
SB 654 (Johnston), Ch. 99 Stats. of 1998,
AB 310 (Kuehl) vetoed
Prior Vote: Assembly Judiciary Committee 9-3; Assembly
Floor 41-31
**************
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