BILL ANALYSIS �
SB 559
Page 1
SENATE THIRD READING
SB 559 (Padilla)
As Amended June 21, 2011
Majority vote
SENATE VOTE :25-13
JUDICIARY 7-3 APPROPRIATIONS 11-5
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Fuentes, Blumenfield, |
| |Huber, Huffman, Monning, | |Bradford, Charles |
| |Wieckowski | |Calderon, Campos, Gatto, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Beth Gaines, |Nays:|Harkey, Donnelly, |
| |Jones | |Nielsen, Norby, Wagner |
| | | | |
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SUMMARY : Prohibits discrimination based on genetic information.
Specifically, this bill :
1)Prohibits discrimination under the Unruh Civil Rights Act
(Unruh) and the Fair Employment and Housing Act (FEHA) on the
basis of genetic information.
2)Prohibits discrimination in state government programs, benefits
and activities, or in programs receiving financial assistance
from the state on the basis of genetic information.
3)Defines "genetic information" as information about any of the
following: a) an individual's genetic tests; b) the genetic
tests of family members of the individual; and, c) the
manifestation of a disease or disorder in family members of the
individual. Includes in the meaning of genetic information any
request for, or receipt of, genetic services, or participation
in clinical research that includes genetic services by an
individual or any family member of the individual. Excludes
information about sex or age of an individual from the
definition of genetic information.
4)States the findings and intent of the Legislature that, among
other things: a) because some genetic traits are most prevalent
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in particular groups, members of a particular group may be
stigmatized or discriminated against as a result of that genetic
information; b) examples of genetic discrimination in the
workplace include the use of pre-employment genetic screening at
Lawrence Berkeley Laboratory; and, c) the State of California
has a compelling public interest in realizing the medical
promise of genomics, but also has a compelling public interest
in relieving the fear of discrimination and in prohibiting its
actual practice.
EXISTING LAW :
1)Prohibits, under Unruh, business establishments from
discriminating on the basis of sex, race, color, religion,
ancestry, national origin, disability, medical condition,
marital status, or sexual orientation and provides civil
remedies for violations of its provisions.
2)Prohibits, under FEHA, discrimination in housing and employment
on the basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, or sexual orientation.
3)Prohibits discrimination in state government programs, benefits
and activities, or in programs receiving financial assistance
from the state, on the basis of race, national origin, ethnic
group identification, religion, age, sex, sexual orientation,
color or disability.
4)Prohibits licensees under the Business and Professions Code from
discriminating on the basis of any characteristic set forth in
Unruh, but provides that this provision should not be
interpreted to prevent a physician or licensed health care
professional from considering those characteristics if medically
necessary to determine the appropriate diagnosis or treatment of
a patient.
5)Prevents health insurance plans from discriminating on the basis
of a person's genetic characteristics, as defined.
6)Limits how life or disability insurance plans can use a person's
genetic characteristics, as defined.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
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1)Potential minor absorbable costs to the Department of Fair
Employment and Housing to receive and investigate discrimination
claims based on the added characteristic of genetic information.
2)Minor increase in court costs and caseloads, and in the civil
case backlogs, due to additional filings related to a new cause
of action, and minor non-reimbursable costs to local governments
regarding investigation and prosecution of potential violations
of certain nondiscrimination statutes which carry a misdemeanor
penalty.
COMMENTS : Genetic testing is a sophisticated technique used to
test for genetic disorders. The technology can lead to earlier
detection of illnesses, sometimes even before symptoms have begun,
which allows individuals to take steps early on to reduce the
likelihood that they will contract a particular disease. These
rapid advances provide new opportunities for medical progress, but
may also give rise to the potential for discrimination based on
misuse of the genetic information.
The FEHA, Unruh and other statutes prohibit discrimination in
employment, housing, public accommodation, government programs and
services provided by business establishments on the basis of
specified personal characteristics such as sex, race, color,
national origin, religion, and disability. Over time, these
statutes have evolved to include other characteristics such as
medical condition, marital status and sexual orientation to
generally reflect the state's public policy against discrimination
in all forms. This bill adds genetic discrimination to the list
of the prohibited classifications for discrimination.
Based on the early science of genetics, state laws were enacted
providing for the sterilization of persons deemed to have genetic
"defects." California passed a nonconsensual sterilization law in
1909 and sterilized nearly 22,000 people from the time it was
enacted to when it was finally repealed in 1979. Individuals
subjected to sterilization had been diagnosed with, among other
things, mental retardation, mental disease, epilepsy, blindness,
and hearing loss. Most of these people were young, poor women.
Misuse of genetic information was again used as a basis for
discrimination in the 1970s when programs were implemented to
screen and identify carriers of sickle cell anemia, a disease
which predominately affects African Americans. State legislatures
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began enacting laws requiring all African Americans to be screened
for sickle cell anemia even though other ethnic backgrounds are
potential carriers of the disease. As a result, people carrying
the sickle cell anemia trait had difficulty finding employment and
health insurance even if they did not ultimately develop the
disease.
As recently as the 1990s, the Lawrence Berkeley Laboratory used
genetic screening, including screening for the sickle cell anemia
trait, under the premise of testing employees for drugs. The
employees brought suit against their employer, alleging a
violation of both federal and California privacy rights which led
to a court decision in favor of the employees. (Norman-Bloodsaw
v. Lawrence Berkeley Lab. (1998) 135 F.3d 1260.)
In 2008, Congress enacted the federal Genetic Information
Nondiscrimination Act (GINA) which prohibits discrimination in
employment and health insurance based on genetic information.
(P.L. 110-233.) The federal GINA garnered bipartisan support,
passing the United States Senate unanimously and by a 414-1 vote
in the Unites States House of Representatives and was signed into
law by President Bush in 2008. GINA prohibits health insurers or
health plan administrators from requiring genetic information
about an individual or the individual's family members, or using
it for decisions regarding coverage, rates, or preexisting
conditions. The federal law also generally prohibits employers
from using genetic information for hiring, firing, or promotion
decisions. However, GINA is not comprehensive as California law
is in protecting against discrimination in other areas. For
example, GINA's prohibition on employer discrimination only
applies to employers of 15 or more employees. This bill codifies
in state law the same protections in GINA, but also expands upon
those protections.
The Unruh Act generally prohibits business establishments from
discriminating on the basis of sex, race, color, religion,
ancestry, national origin, disability, or medical condition,
marital status, or sexual orientation. The Unruh Act is meant to
cover all arbitrary and intentional discrimination by a business
establishment on the basis of the personal characteristics listed
above.
FEHA prohibits discrimination in housing and employment on the
basis of race or color; religion; national origin or ancestry;
physical disability; mental disability or medical condition;
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marital status; sex or sexual orientation; age, with respect to
persons over the age of 40; and, pregnancy, childbirth, or related
medical conditions. Additionally, FEHA prohibits discrimination
in housing based on the person's ability to pay. The FEHA is the
principal California statute prohibiting employment and housing
discrimination covering employers, labor organizations, employment
agencies, apprenticeship programs, and any person or entity, who
aids, abets, incites, compels, or coerces the doing of a
discriminatory act.
This bill adds genetic information to the list of protected
classes to further enhance protections against discrimination.
While this bill would not have prevented Lawrence Berkeley
Laboratory from collecting its employees' genetic information, it
would have prevented the lab from using that information to
discriminate against employees. For example, if an employee was
tested and determined to have a predisposition for a genetic
disorder, this bill would prohibit the lab from using that
information to decide not to promote the employee.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334FN:
0001511