BILL ANALYSIS
AB 2142
Page 1
ASSEMBLY THIRD READING
AB 2142 (Keeley)
As Amended April 4, 2000
Majority vote
LABOR AND EMPLOYMENT 6-3 APPROPRIATIONS 14-7
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|Ayes:|Steinberg, Gallegos, Knox, |Ayes:|Migden, Alquist, Aroner, |
| |Migden, Romero, Shelley | |Cedillo, Corbett, Davis, |
| | | |Kuehl, Papan, Romero, |
| | | |Shelley, Thomson, Wesson, |
| | | |Wiggins, Wright |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Margett, McClintock, Oller|Nays:|Campbell, Ackerman, Ashburn, |
| | | |Brewer, Maldonado, Runner, |
| | | |Zettel |
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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
identity, appearance, or behavior regardless of whether different
from that traditionally associated with the victim's sex at birth.
Specifically, this bill provides that:
1)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)"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.
3)"Victim" means the victim of a discriminatory act prohibited by
FEHA.
4)"Person" means the person engaging in that prohibited conduct.
EXISTING LAW :
AB 2142
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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. 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 : According to the Assembly Appropriations Committee
analysis, minor, absorbable enforcement cost to FEHA.
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.
AB 2142
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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, this bill would protect a female employee who is told
that she 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)AB 1001 (Villaraigosa), Chapter 592, Statutes of 1999, which
included protection against discrimination based on sexual
orientation in FEHA.
Analysis Prepared by : Ralph Lightstone / L. & E. / (916) 319-2091
FN: 0004488