BILL ANALYSIS �
AB 2386
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Date of Hearing: May 25, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 2386 (Allen) - As Amended: April 25, 2012
Policy Committee: Labor and
Employment Vote: 5-1
Judiciary 9-1
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill amends the definition of "sex," regarding to
discrimination in the Fair Employment and Housing Act (FEHA), to
include breastfeeding or medical conditions related to
breastfeeding.
FISCAL EFFECT
No additional fiscal impact to the Department of Fair Employment
Housing to comply with this measure.
COMMENTS
1)Purpose . In 2009, the Fair Employment Housing Commission
(Commission) determined breastfeeding fell under the
definition of "sex" for the purposes of discrimination under
FEHA. A woman working at a restaurant in Los Angeles County
alleged she was fired from her job because she breastfed at
work. The Commission ruled in favor of the woman and stated:
"breastfeeding is an activity intrinsic to the female sex.
Accordingly, termination in violation of complainant's right
to return to work from pregnancy disability leave because she
was still breastfeeding was discrimination on the basis of sex
�under state law]."
According to the author, "While California has enacted laws in
recent years to protect and promote breastfeeding, such as the
right to breastfeed in public (AB 157, 1997), and workplace
break time and facility space accommodations (AB 1025, 2002),
more needs to be done. For example, California laws do not
AB 2386
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specifically protect nursing mothers from being reassigned to
other work, required to work different shifts, requested to
take additional leave, or potentially from being terminated.
AB 2386 simply clarifies the existing statutory definition of
sex under FEHA by codifying a decision by the Commission that
held that breastfeeding is an activity intrinsic to the female
sex and discriminatory acts based on this activity constitutes
discrimination based on sex."
2)Background . FEHA prohibits discrimination in employment on
the basis of specified factors, including, race, national
origin, sex, age, disability, and sexual orientation. For
the purposes of the FEHA, current law defines "sex" as
including, but not limited to, pregnancy, childbirth, or
medical conditions related to pregnancy or childbirth.
AB 1025 (Frommer), Chapter 821, Statutes of 2001 required
every employer, including the state, to provide a reasonable
amount of break time to accommodate the employee's ability to
express breast milk for her infant child. Chapter 821 also
required the employer to make reasonable efforts to provide
the employee with the use of a room or other location, other
than a toilet stall, in close proximity to the employee's work
area, for the employee to express milk in private.
3)2010 federal health care law . The federal Patient Protection
and Affordable Care Act (the Act) mandates employers make
reasonable accommodations for women who are breastfeeding.
Specifically, the Act amended federal labor statute to require
the following:
a) A "reasonable break time" for an employee to express
breast milk at work.
b) Break time for up to one year after the birth of the
child.
c) A private place, other than a restroom, where the
employee may express milk.
FLSA requirements do not preempt state laws that provide
greater protection. Furthermore, employees exercising their
rights under federal labor law have no recourse if they face
adverse employment actions in other aspects of their jobs,
such as restricted opportunities for promotion, less flexible
scheduling, or lowed wages as the Act does not protect against
breastfeeding discrimination.
AB 2386
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Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081