BILL ANALYSIS �
SB 559
Page 1
SENATE THIRD READING
SB 559 (Padilla)
As Amended August 15, 2011
Majority vote
SENATE VOTE :25-13
JUDICIARY 7-3 APPROPRIATIONS 11-5
-----------------------------------------------------------------
|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 |
| | | | |
-----------------------------------------------------------------
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
SB 559
Page 2
prevalent 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.
5)Contains chaptering out language with AB 887 (Atkins).
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.
SB 559
Page 3
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
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
SB 559
Page 4
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 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
SB 559
Page 5
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;
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) 319-2334
FN: 0001777