BILL ANALYSIS
AB 196
Page 1
ASSEMBLY THIRD READING
AB 196 (Leno)
As Amended March 26, 2003
Majority vote
LABOR AND EMPLOYMENT 6-1 APPROPRIATIONS 17-8
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|Ayes:|Koretz, Mullin, Chu, |Ayes:|Steinberg, Berg, |
| |Hancock, Laird, Negrete | |Calderon, Cohn, Corbett, |
| |McLeod | |Diaz, Firebaugh, |
| | | |Goldberg, Leno, Nation, |
| | | |Negrete McLeod, Nunez, |
| | | |Pavley, Ridley-Thomas, |
| | | |Laird, Wiggins, Yee |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Houston |Nays:|Bates, Correa, Daucher, |
| | | |Haynes, Maldonado, |
| | | |Pacheco, Runner, |
| | | |Samuelian |
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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 :
1)Prohibits, under FEHA, employment and housing discrimination
based upon race, religious creed, color, national origin,
AB 196
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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.
2)Defines "sex", under FEHA, 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 : According to the Assembly Appropriations
Committee, minor, absorbable enforcement costs to the Department
of Fair Employment and Housing, which investigates and
adjudicates complaints arising under FEHA.
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
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
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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 United States 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 [C]ode versus the state
Government [C]ode." Opponents, in general, also argue that this
bill creates a new basis for lawsuits against business during
times of economic uncertainty.
A nearly identical bill, AB 1649 (Goldberg) of 2001, died on the
Senate inactive file last year.
Analysis Prepared by : Nick Louizos / L. & E. / (916) 319-2091
FN: 0000374