BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 2142 A
Assembly Member Keeley B
As Amended April 4, 2000
Hearing Date: August 8, 2000 2
Government Code 1
DLM:pjs 4
2
SUBJECT
Fair Employment and Housing: Gender Discrimination
DESCRIPTION
This bill would:
Clarify that for purposes of the Fair Employment and
Housing Act (FEHA) discrimination on the basis of "sex"
includes gender discrimination.
Import the existing definition of "gender" from the Penal
Code, with minor changes to reflect the civil nature of
FEHA actions (detailed below).
BACKGROUND
The Fair Employment and Housing Act (FEHA) makes illegal
employment and housing discrimination based upon race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital
status, sex, sexual orientation or age.
In 1993, AB 675 (Moore) Ch. 711, Statutes of 1993,
clarified that "harassment
because of sex" under FEHA includes, but is not limited to,
sexual harassment gender harassment, and harassment on the
basis of pregnancy. However, until last session, there was
no definition contained in the codes for "gender." With
passage of AB 1999 (Kuehl), Ch. 933, Statutes of 1999, a
definition of gender now exists in the Penal Code. AB 2142
(more)
AB 2142 (Keeley)
Page 2
would reference this existing Penal Code definition for
purposes of clarifying the entire FEHA.
Testimony was taken on this bill in this Committee on June
20, 2000. The bill was put over at the request of the
author with the stipulation that should the bill be set for
hearing again, it would be "for vote only."
CHANGES TO EXISTING LAW
1. Existing law , the FEHA, prohibits 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.
Existing law , the FEHA, prohibits harassment of an
employee, an applicant, or a person providing services
pursuant to a contract because of race, religious creed,
color, national origin, ancestry, physical disability,
mental
disability, medical condition, marital status, sex, age,
or sexual orientation. "Harassment" because of sex
includes sexual harassment, gender harassment, and
harassment based on pregnancy, childbirth, or related
medical conditions.
Existing law , Penal Code Section 422.76, defines
"gender" to mean, "the victim's actual sex or the
defendant's perception of the victim's sex, and includes
the defendant'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.
This bill would provide 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.
This bill would replace the words "victim" and
"defendant," so that the FEHA definition of gender would
be:
"the actual sex of a victim of a discriminatory act
prohibited by this part or the perception of the person
engaging in prohibited conduct of the victim's sex, and
AB 2142 (Keeley)
Page 3
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."
COMMENT
1. Stated need for legislation and support
The author offers the following in support of AB 2142,
"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. These 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.
"Gender stereotypes are harmful to all people. They
stifle individual initiative, destroy careers, and
prevent men and women from living up to their full
potential. As a society, our toleration of those
stereotypes sends a particularly destructive message to
young people, who learn to devalue and even to punish
those whose appearance or characteristics are seen as
'different' from stereotypical gender norms in some way.
Sadly, in fact, almost every family includes some family
members who have been hurt or suffered discrimination
because of gender stereotypes - whether it is a brother
or son who has been ridiculed as a 'sissy,' a sister or
mother who has been discouraged or perhaps even prevented
from pursuing a traditionally 'masculine' career, or a
daughter or granddaughter who has been denied housing or
harassed on the job because of stereotypical beliefs
about women.
"Although courts have begun to address those harms on a
case-by-case basis in the past ten years, legislators
have an equal responsibility to keep pace with changing
social realities and to ensure that our statutes provide
a sufficiently clear and adequate prohibition against
gender-based discrimination. AB 2142 meets that
AB 2142 (Keeley)
Page 4
responsibility in a principled way by amending FEHA to
codify existing case law and to be consistent with
related provisions in the California Code."
California National Organization for Women states in
support of this measure, "AB 2142 would prohibit
discrimination based on gender characteristics that have
no relevance to the person's qualifications as an
employee or tenant. For example, this bill would protect
women who are perceived to be "too masculine" because
they act aggressively, don't wear makeup, or have a
muscular build or a deep voice. It would also apply to
men who are perceived as feminine because of a soft voice
or slight stature. AB 2142 would help to ensure equal
opportunities for all Californians by protecting against
discrimination based on gender stereotyping."
Trinity Cathedral Church adds, "Given the types of
discrimination that takes place against males and females
who don't fit usual stereotypes, your bill is timely.
The Episcopal Church is on record as supporting such
legislation precisely because it protects the dignity of
every human being."
The California State Employees Association also supports
the bill, saying "This measure would simply clarify the
definition of "gender" for purposes of the California
Fair Employment and Housing Act to be the person's actual
sex or the perception of a person's identity. No one
should have to suffer discrimination at the workplace or
in housing. This bill would allow a relatively small
group of people one recognized legal protection, at
no-cost to the state or the private sector and with no
moral judgement."
2. "Gender" and "sex" are used interchangeably by courts
interpreting
anti-discrimination laws
In federal jurisprudence, the courts have interpreted the
prohibition against discrimination contained in 42 USC
Section 703 (a) (1) based upon "sex" to mean "gender." A
prime example is the discussion contained in Price
Waterhouse v. Hopkins, (1989) 490 U.S. 228, wherein the
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US Supreme Court stated, "Congress' intent to forbid
employers to take gender into account in making
employment decisions appears on the face of the statute.
In now-familiar language, the statute forbids an employer
to 'fail or refuse to hire or discharge any individual,
or otherwise to discriminate with respect to his
compensation, terms, conditions, or privileges of
employment,' or to 'limit, segregate, or classify his
employees or applicants for employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect
his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect
his status as an employee, because of such individual's
?sex.' (Ellipsis in original, citation omitted.) We take
these words to mean that gender must be irrelevant to
employment decisions." Price Waterhouse, supra.
The courts which have interpreted the FEHA have similarly
recognized that "sex" discrimination for purposes of the
Act includes "gender" based discrimination. For example
in Vibeke Cloud v. Casey, (1999) 76 Cal App 4th 895, the
court stated in discussing the plaintiff's sex
discrimination claim under FEHA, "(G)ender discrimination
in employment is unlawful and actionable." Id. (See
also, Shaunie Emeger Schmoll v. Chapman University,
(1999) 70 Cal. App. 4th 1434, and Thomas v. Department of
Corrections (2000) 77 Cal. App. 4th 507, which contains
judicial discussions of sex and gender discrimination,
using the terms synonymously.)
3. Opposition
The California Manufactures and Technology
Association opposes the bill based upon their concern
that, "AB 2142 would import the definition of gender from
Penal Code Section 422.76 that would make almost any
comment, look, or action between workers a potentially
prohibited act under the Government Code. However,
regulating the workplace is significantly different than
the hate statute situations under which this definition
was developed. For example, the elements of evidence
necessary to successfully prosecute under Section 422.76
of the Penal Code is significantly more stringent than
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the Government Code."
The Committee on Moral Concerns opposes the bill, and
states, "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." The Traditional Values Coalition
(TVC) adds their concern that the bill would "prohibit
businesses from applying dress codes concerning
cross-dressing," and the fear that, "the bill would
result in compromising an uncomfortable and hostile
environment situation primarily for women," because "all
employees would be forced to share their women's bathroom
with men dressed like women."
4. The FEHA requires all plaintiffs in protected classes
to prove discrimination
The opposition fears that this bill would allow an
employee to file a claim for "any behavior by a fellow
employee that they believed offended them. However, the
standard for a harassment suit under the FEHA requires
much more. The traditional analysis for a sexual
harassment claim was provided by the court in Meritor
Savings Bank v. Vinson (1986) 477 U.S. 57, 67.) "For
sexual harassment to be actionable, it must be
sufficiently severe or pervasive 'to alter the conditions
of [the victim's] employment and create an abusive
working environment.' Whether the sexual conduct
complained of is sufficiently pervasive to create a
hostile or offensive work environment must be determined
from the totality of the circumstances." Id.
This concept was further examined in Oncale v.
Sundowner Offshore Services (1998) 523 U.S. 75, wherein
the court stated, "The prohibition of harassment on the
basis of sex requires neither asexuality nor androgyny in
the workplace; it forbids only behavior so objectively
offensive as to alter the conditions of the victim's
employment?We have emphasized, moreover, that the
objective severity of harassment should be judged from
the perspective of a reasonable person in the plaintiff's
position, considering 'all of the circumstances.' In
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same-sex (as in all) harassment cases, that inquiry
requires careful consideration of the social context in
which particular behavior occurs and is experienced by
its target. A professional football player's working
environment is not severely or pervasively abusive, for
example, if the coach smacks him on the buttocks as he
heads onto the field -- even if the same behavior would
reasonably be experienced as abusive by the coach's
secretary (male or female) back at the office. The real
social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations,
and relationships which are not fully captured by a
simple recitation of the words used or the physical acts
performed. Common sense, and an appropriate sensitivity
to social context, will enable courts and juries to
distinguish between simple teasing or roughhousing among
members of the same sex, and conduct which a reasonable
person in the plaintiff's position would find severely
hostile or abusive." Oncale, supra.
Here, it should be no less difficult for courts and
juries to ferret out the legitimate claims of victims of
gender-based discrimination from, "cross-dressers,
opposite sex impersonators, or comedians," (as one
opponent put it) seeking protections beyond those
afforded coworkers.
In point of fact, most of the opposition to this bill is
addressed to the provision in the existing Penal Code
definition of gender which references, "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."
As the TVC states in opposition, "AB 2142 is designed to
include transgendered, transvestite, cross-dressers,
drag-queens, she-males, etc?"
This opposition seems overwrought. As the Oncale court
suggests, employees may still be required to wear
appropriate attire, e.g. business, professional, or
dungaree, pursuant to the employer's dress code policy.
However, this bill will protect persons who are in the
process of changing their sexual identity, a.k.a. gender,
along with men and women facing traditional sex
discrimination and sexual harassment. The protection
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anticipated in AB 2142 is consistent with the purposes of
the existing prohibition against discrimination on the
basis of sex.
As the court in Price Waterhouse v. Hopkins (1989),
supra, stated, "we are way beyond the day when an
employer could evaluate employees by assuming or
insisting that they matched the stereotype associated
with their group, for 'in forbidding employers to
discriminate against individuals because of their sex,
Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex
stereotypes.' (Citations omitted.)" Id.
5. Bone fide occupation defense remains available
Employment discrimination based upon gender may still be
permitted when based on "a bona fide occupational
qualification (BFOQ)." While courts have narrowly
interpreted that term, see Johnson Controls, Inc. v.
California Fair Employment and Housing Comm'n (1990) 218
Cal.App.3d 517 (being male, or being a woman who is not
capable of child-bearing, was not a bona fide
occupational qualification for a position in which a
worker is exposed to levels of lead that could harm
fetuses), this provision of law nevertheless allows
employers to make gender-based employment decisions when
the employer or other covered entity [can] prove that the
practice is justified. For example, the movie role of a
mother may lawfully be reserved for a woman under the
BFOQ defense.
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6. Prior related legislation
AB 1999 (Kuehl), Ch. 933, Statutes of 1999, created the
Penal Code definition of "gender" which AB 2142 would
import into the FEHA. AB 1999 also conformed all "hate
crimes" provisions of the Penal Code to include gender,
either by adding "gender" or substituting "sex" for
"gender."
AB 519 (Aroner) Ch. 964, Statutes of 1999, updated the
Civil Code sexual harassment provisions. In relevant
part, AB 519 established liability when the defendant
engages in verbal, visual, or physical conduct of a
sexual nature or of a hostile nature based on gender,
that is unwelcome and pervasive or severe. (Emphasis
added.) AB 519 passed out of this Committee on July 7,
1999, by a vote of 6-2.
Support: American Association of University Women;
American Civil Liberties Union; American Federation
of State, County Municipal Employees; California
Alliance for Pride and Equality; California Child,
Youth & Family Coalition; California Labor
Federation, AFL-CIO; California School Employees
Association; California State Employees Association;
California Teachers Association; Central United
Methodist Church; California Women Lawyers; Chalice
UU Congregation; City of Los Angeles; Equal Rights
Advocates; Friends Committee on Legislation of
California; Fremont Evangelical Free Church;
Japanese American Citizens League (Northern
California-Western Nevada-Pacific District); L.A.
Gay & Lesbian Center; Mexican American Legal Defense
Fund; Northern California Nevada Conference of the
United Church of Christ; Planned Parenthood
Affiliates of California; Professional Engineers in
California Government; The Lambda Letters Project;
San Francisco Women Lawyers' Alliance; Trinity
Cathedral Church Ventura County Parents, Families
and Friends of Lesbians and Gays; National
Organization for Women; California Women's Law
Center; Individuals
Opposition: California Employment Law Council; California
AB 2142 (Keeley)
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Manufacturers and Technology Association;
Committee on Moral Concerns; Traditional Values
Coalition; Campaign for California Families; Good
News Fellowship
HISTORY
Source: Sacramento Human Rights and Fair Housing
Commission
Related Pending Legislation: None Known
Prior Legislation: AB 1999 (Kuehl) Ch. 933, Statutes of
1999; AB 519 (Aroner) Ch. 964, Statutes of
1999
Prior Vote: Assembly Labor and Employment Committee (6-3)
Assembly Floor (41-30)
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