BILL ANALYSIS
AB 196
Page A
Date of Hearing: March 19, 2003
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Paul Koretz, Chair
AB 196 (Leno) - As Introduced: January 27, 2003
SUBJECT : Discrimination.
SUMMARY : Expands the definition of sex to include gender,
actual or perceived, for purposes of defining unlawful
employment discrimination. Specifically, this bill :
1)Broadens the scope of sex discrimination prohibited under the
Fair Employment and Housing Act (FEHA) to include the
employee's gender. Gender is defined as the employee's actual
sex, or the employer's perception of the employee's identity,
appearance, or behavior, even if these characteristics differ
from those traditionally associated with the employee's sex at
birth.
2)Provides explicitly that it does not affect the ability of
employers to adopt reasonable workplace appearance, grooming
and dress standards, provided that an employer must allow an
employee to appear or dress consistently with the employee's
gender.
EXISTING LAW prohibits, under FEHA, employment and housing
discrimination based upon race, religious creed, color, national
origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, or sexual orientation.
Employers with four or fewer employees and non-profit religious
organizations are generally exempt from the discrimination
provisions of FEHA.
FEHA defines "sex" as including, but not limited to, pregnancy,
childbirth, or medical conditions relating to pregnancy or
childbirth. "Sexual orientation" is defined as heterosexuality,
homosexuality, and bisexuality.
FISCAL EFFECT : Unknown
COMMENTS : The author states that "Gender-based discrimination
in housing and employment is a serious and widespread problem
that forces people to be evicted, destroys careers, and prevents
employees and businesses from functioning at their highest
AB 196
Page B
levels."
According to a recent survey by the Transgender Law Center,
nearly one in every two respondents had experienced
discrimination in employment. Other figures from the survey
reveal that 64% of respondents make less than $25,000 a year and
a full 79% of respondents make less than $50,000. Additionally,
43% lack health insurance and almost 20% do not have stable
housing.
A 1999 study by the San Francisco Department of Public Health
states that most transgender people have experienced various
types of employment discrimination and are disproportionately
driven into poverty. The study further reveals that the
unemployment rate for transgender people in San Francisco is
70%.
This bill is intended to offer protection to transgender
individuals. It would also benefit any person who does not
possess traits or project conduct stereotypically associated
with his or her sex. These traits may include a person's
personality, clothing, hairstyle, speech, mannerisms, or
demeanor. They may also include secondary sex characteristics
such as vocal pitch, facial hair,
or the size or shape of a person's body. For example, this bill
would protect a female employee from being told that she must
dress in a more "feminine" manner and a man from gender-based
harassment on the job because he has a soft voice or a slight
build.
Supporters point to two U.S. Supreme Court decisions
interpreting federal Title VII anti-discrimination prohibitions
as including discrimination based on sex-role stereotyping, and
urge that California follow this lead in FEHA. Doing so would
provide a clear standard, avoiding inconsistent case-by-case
results in individual courts.
Opponents raise several points, including that the bill, which
uses the definition of gender in the hate-crimes portion of the
Penal Code, is unclear as to precisely what conduct would
constitute unlawful discrimination. The Chamber of Commerce
believes that "using a criminal definition designed for the
prosecution of hate crimes is inappropriate due to the differing
thresholds of evidence in the Penal code versus the state
Government code." Opponents, in general, also argue that this
AB 196
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bill creates a new basis for lawsuits against business during
times of economic uncertainty.
A nearly identical bill, AB 1649 (Goldberg), was passed in the
Assembly, but died on the Senate inactive file last year.
REGISTERED SUPPORT / OPPOSITION :
Support
Alice B. Toklas LGBT Democratic Club
American Civil Liberties Union (ACLU)
American Federation of State, County and Municipal Employees
Association (AFSCME)
Billy DeFrank LGBT Community Center
California Apartment Association
California Labor Federation
California National Organization for Women
California School Employees Association
California State Employees Association
California Women's Law Center
Charles Zukow Associates
Chinese for Affirmative Actions
Commission on the Status of Women
Donordigital Online Marketing
East Bay Community Law Center
Eleanor Roosevelt Democratic Club of Orange County
Eviction Defense Collaborative
Gay-Straight Alliance Network
Golden Gate Business Association
Golden Gate University Women's Employment Rights Center
Greater San Diego Business Association
Harvey Milk Lesbian Gay Bisexual Transgender Democratic Club
Housing Rights Committee, San Francisco
Human Rights Campaign
Human Rights/Fair Housing Commission of Sacramento
Lambda Legal
Lambda Letters Project
Los Angeles Gay and Lesbian Center
Mossinger Consulting
National Association of Social Workers
National Center for Lesbian Rights
National Gay and Lesbian Task Force
National Transgender Advocacy Coalition
Orange County Transgender Task Force
AB 196
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Parents and Friends of Lesbians and Gays, Encino
SAF-T Corporation
San Francisco Tenants Union
Senior Housing Action Collaborative
Service Employees International Union (SEIU)
Spectrum Magazine
Stonewall Democratic Club of Sacramento
The California Alliance for Pride and Equality (CAPE)
The Center, San Diego
Transgender Law Center
Woodenship Strategic Communications Company
Opposition
California Chamber of Commerce
California Employment Law Council
California Manufacturers & Technology Association
Campaign for California Families
Committee on Moral Concerns
Irvine Chamber of Commerce
Analysis Prepared by : Nick Louizos / L. & E. / (916) 319-2091