BILL ANALYSIS
AB 2142
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Date of Hearing: April 12, 2000
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Darrell Steinberg, Chair
AB 2142 (Keeley) - As Amended: April 4, 2000
SUMMARY : Provides for purposes of the anti-discrimination
provisions of the Fair Employment and Housing Act (FEHA), that
the term "sex" includes a person's gender, which is further
defined to mean a victim's actual sex or the perception of a
victim's identify, appearance, or behavior regardless of whether
different from that traditionally associated with the victim's
sex at birth. Specifically, this bill :
1)Provides that under FEHA, the term "sex" includes, but is not
limited to, a person's gender, as defined in and adapted from
Penal Code Section 422.
2)Provides that "gender" means the victim's actual sex or the
person's perception of the victim's sex, and includes the
person's perception of the victim's identity, appearance, or
behavior, whether or not that identity, appearance, or
behavior is different from that traditionally associated with
the victim's sex at birth.
Provides that "victim" means the victim of a discriminatory
act prohibited by FEHA.
Provides that "person" means the person engaging in that
prohibited conduct.
EXISTING LAW:
1)Prohibits through FEHA, employment and housing discrimination
based on sex and sexual orientation, as well as race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital
status, or age. Employers with four or fewer employees and
non-profit religious organizations are exempt from FEHA.
2)Defines, under FEHA, "sexual orientation" as "heterosexuality,
homosexuality, and sexuality."
3)The Department of Fair Employment and Housing (DFEH)
investigates and adjudicates complaints arising under FEHA.
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Complaints must be filed within one year of the alleged
incident. Remedies available for employment discrimination
include cease and desist orders, reinstatement, actual damages
up to $50,000, affirmative or prospective relief, an
administrative fine, and attorney's fees. If a complainant or
respondent is not satisfied with the administrative decision,
or if DFEH issues the complainant a "right-to-sue" letter, the
complainant can bring a civil action in court. The
complainant cannot file a civil action without first
exhausting FEHA's administrative remedies.
4)For housing discrimination, DFEH can order the landlord to
cease and desist and to sell or rent the accommodation to the
complainant, assess actual damages, and assess punitive
damages of $10,000 for a first offense, $25,000 for a second,
and $50,000 for three or more. In addition, the complainant
can choose to file a civil action in lieu of or during the
DFEH administrative process. Unlike employment discrimination
cases, there is no requirement that a complainant exhaust the
administrative remedies before filing a civil action.
FISCAL EFFECT : Unknown
COMMENTS :
1) The author indicates that this bill clarifies that gender
stereotyping is a prohibited form of sex discrimination under
FEHA. This bill protects all people in California from
discrimination on the basis of invidious gender stereotypes.
No one should be subjected to discriminatory treatment
because of gender-related characteristics that have no
relevance to his or her qualifications as an employee or
tenant.
Gender-based discrimination is rooted in discomfort or
disapproval of the way another person does or does not
exhibit the traits stereotypically associated with his or her
sex. The 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.
When a person is harassed, denied equal opportunity, or
otherwise treated differently because of any of these
personal traits, that is gender discrimination. For example,
the bill would protect a female employee who is told that she
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must dress in a more "feminine" manner or man who is
subjected to gender-based harassment on the job because he
has a soft voice or slight build.
2) In opposition, the Committee on Moral Concerns states that
existing law already covers sexual orientation. This bill
would give cross-dressers, transsexuals, opposite sex
impersonators, and comedians special protection. Everyone is
entitled to equal protection under the law. However, persons
with gender identity difficulties should not be entitled to
more than equal protection.
According to the opposition, misunderstanding something as
basic as one's own gender is as serious a mistake as a person
could make. Giving extra legal protection to gender-confused
individuals is dangerous and unwise. A person with a
chromosome defect that may cause biological gender-related
malformation is covered under the existing legal category of
disability. Gender mis-identity, as addressed by this bill,
is a serious mental confusion. These poor souls need help,
not legal affirmation.
3) Last year, the Legislature enacted AB 1001 (Villaraigosa),
Chapter 592, Statutes of 1999, which included protection
against discrimination based on sexual orientation in FEHA.
REGISTERED SUPPORT / OPPOSITION :
Support
American Association of University Women, California
American Civil Liberties Union
California Alliance for Pride and Equality
California Child, Youth & Family Coalition
California Labor Federation, AFL-CIO
California School Employees Association
California Teachers Association
Central United Methodist Church
Chalice UU Congregation
Equal Rights Advocates
Friends Committee on Legislation of California
Japanese American Citizens League (Northern California-Western
Nevada-Pacific District)
L.A. Gay & Lesbian Center
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Northern California Nevada Conference of the United Church of
Christ
Planned Parenthood Affiliates of California
The Lambda Letters Project
Trinity Cathedral Church
Ventura County Parents, Families and Friends of Lesbians and
Gays
Opposition
Committee on Moral Concerns
Analysis Prepared by : Ralph Lightstone / L. & E. /
(916)319-2091