BILL NUMBER: SB 26	CHAPTERED  08/02/99

	CHAPTER   222
	FILED WITH SECRETARY OF STATE   AUGUST 2, 1999
	APPROVED BY GOVERNOR   AUGUST 2, 1999
	PASSED THE SENATE   JULY 15, 1999
	PASSED THE ASSEMBLY   JULY 12, 1999
	AMENDED IN ASSEMBLY   JUNE 9, 1999
	AMENDED IN SENATE   MARCH 15, 1999

INTRODUCED BY   Senator Escutia
   (Principal coauthors:  Senators Schiff and Vasconcellos)
   (Coauthors:  Senators Alpert, Dunn, O'Connell, Perata, Polanco,
and Speier)
   (Coauthors:  Assembly Members Alquist, Aroner, Gallegos, Honda,
Jackson, Knox, Kuehl, Lempert, Mazzoni, Scott, Shelley, Washington,
Wayne, and Wildman)

                        DECEMBER 7, 1998

   An act to add Section 12941.1 to the Government Code, relating to
employment.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 26, Escutia.  Employment:  age discrimination.
   Existing law makes it an unlawful employment practice for an
employer to refuse to hire or employ, or to discharge, dismiss,
reduce, suspend, or demote, any individual over the age of 40 on the
ground of age, under specified circumstances.  In Marks v. Loral
Corp. (1997) 57 Cal.App.4th 30, the court held that existing law
permits an employer to choose employees with lower salaries, even
though this may result in choosing younger employees.
   This bill would declare the Legislature's rejection of the opinion
in Marks v. Loral Corp., supra, and state that the opinion does not
affect existing law in any way, including, but not limited to, the
law pertaining to disparate treatment.  The bill would also declare
the intent of the Legislature that, among other things, the use of
salary as the basis for differentiating between employees when
terminating employment may be found to constitute age discrimination
if use of this criterion disproportionately affects older workers as
a group.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature hereby finds and declares its support
of the following pronouncements made by the California Supreme Court
in Stevenson v. Superior Court (1997) 16 Cal.4th 880:
   (a) "... the practice of age discrimination, like other invidious
forms of discrimination, "foments domestic strife and unrest' in the
workplace ...  making for a more stressful and ultimately less
productive work environment ... ."
   (b) "(T)here can be little doubt that the FEHA's express policy
condemning employment discrimination against older workers is one
that benefits the public at large.  Because average life expectancy
has risen to more than 80 years, most California residents either are
now or will become over-40 employees, thus creating an
extraordinarily broad class of potential victims of age
discrimination in employment ... ."
   (c) "(T)he pernicious effects of age discrimination in employment
are not confined to employees who are its immediate targets.  As the
Legislature has recognized in Unemployment Insurance Code section
2070, discrimination against older workers violates the public policy
that "(an employee's skills and potential) should be used to (their)
fullest extent,' thereby depriving society at large of the benefit
of valuable human resources ... ."
   (d) "(T)he FEHA's policy against age discrimination in employment
is ... similar in important ways to the policies against race and sex
discrimination ... .  Like race and sex discrimination, age
discrimination violates the basic principle that each person should
be judged on the basis of individual merit, rather than by reference
to group stereotypes ... ."
   (e) "Age, like race and sex, is the product of the workings of
nature rather than the individual's free choice; once acquired, the
status of being over 40 is as permanent and immutable as race or sex.
  Age discrimination attacks the individual's sense of self-worth in
much the same fashion as race or sex discrimination.  Indeed, age
discrimination (or "ageism,' as it is sometimes called) has been
defined as "a systematic stereotyping of and discrimination against
people because they are old, just as racism and sexism accomplish
this with skin color and gender ... .'"
  SEC. 2.  Section 12941.1 is added to the Government Code, to read:

   12941.1.  The Legislature hereby declares its rejection of the
court of appeal opinion in Marks v. Loral Corp. (1997) 57 Cal.App.4th
30, and states that the opinion does not affect existing law in any
way, including, but not limited to, the law pertaining to disparate
treatment.  The Legislature declares its intent that the use of
salary as the basis for differentiating between employees when
terminating employment may be found to constitute age discrimination
if use of that criterion adversely impacts older workers as a group,
and further declares its intent that the disparate impact theory of
proof may be used in claims of age discrimination.  The Legislature
further reaffirms and declares its intent that the courts interpret
the state's statutes prohibiting age discrimination in employment
broadly and vigorously, in a manner comparable to prohibitions
against sex and race discrimination, and with the goal of not only
protecting older workers as individuals, but also of protecting older
workers as a group, since they face unique obstacles in the later
phases of their careers.  Nothing in this section shall limit the
affirmative defenses traditionally available in employment
discrimination cases including, but not limited to, those set forth
in Section 7286.7 of Title 2 of the California Code of Regulations.