AB 488: Employment discrimination.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-09-27
Existing law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act excludes from the definition of employee, any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.
This bill would authorize an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility to bring an action under the act for any form of harassment or discrimination prohibited by the act. The bill would provide an employer against whom the individual brings this action with an affirmative defense by proving, by a preponderance of evidence, that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities under a special license. The bill would exempt an employers obtaining a special license, or hiring or employing a qualified individual at a wage less than the minimum wage in conformity with a special license, from the acts provisions prohibiting discrimination based on disability. The bill would provide that the definition of employee was not intended to permit the harassment of, or discrimination against, an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility.
Existing law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act excludes from the definition of employee, any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.
This bill would authorize an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility to bring an action under the act for any form of harassment or discrimination prohibited by the act. The bill would provide an employer against whom the individual brings this action with an affirmative defense by proving, by a preponderance of evidence, that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities under a special license. The bill would exempt an employers obtaining a special license, or hiring or employing a qualified individual at a wage less than the minimum wage in conformity with a special license, from the acts provisions prohibiting discrimination based on disability. The bill would provide that the definition of employee was not intended to permit the harassment of, or discrimination against, an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility.
Existing law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act excludes from the definition of employee, any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.
This bill would redefine employee to no longer exclude any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility, thereby applying employment discrimination protections to these individuals. This bill would authorize an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility to bring an action under the act for any form of harrassment or discrimination prohibited by the act. The bill would provide an employer against whom the individual brings this action with an affirmative defense by proving, by a preponderance of evidence, that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities under a special license. The bill would exempt an employer who obtains employers obtaining a special license, or hires or employs hiring or employing a qualified individual at a wage less than the minimum wage in conformity with a special license, from the acts provisions prohibiting discrimination based on disability. The bill would provide that the definition of employee was not intended to permit the harassment of, or discrimination against, an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility.
Existing law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act defines employee for these purposes and excludes from the definition of employee, any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.
This bill would redefine employee to include an individual paid no longer exclude any individual employed under a special license in a nonprofit sheltered workshop, workshop or rehabilitation facility, or day program, thereby applying employment discrimination protections to these people. individuals. This bill would exempt an employer who obtains a special license, or hires or employs a qualified individual at a wage less than the minimum wage in conformity with a special license, from the acts provisions prohibiting discrimination based on disability.
Existing law protects law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. Existing law The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. Existing law specifies The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. Existing law The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act defines employee employee for these purposes and excludes from the definition any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.
This bill would redefine employee employee to remove the exemption for include an individual employed paid under a special license in a nonprofit sheltered workshop or workshop, rehabilitation facility, or day program, thereby applying employment discrimination protections to these people. This bill would exempt an employer who obtains a special license, or hires or employs a qualified individual at a wage less than the minimum wage in conformity with a special license, from the acts provisions prohibiting discrimination based on disability.
Existing law protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. Existing law prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. Existing law specifies requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. Existing law defines employee for these purposes and excludes from the definition any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.
This bill would redefine employee to remove the exemption for an individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility, thereby applying employment discrimination protections to these people.
Existing state and federal laws provide for payment of a special minimum wage for workers with disabilities that is lower than the established minimum wage rate, under specified circumstances. Existing law authorizes the Department of Rehabilitation to regulate vocational rehabilitation services, which are defined as specified services and goods to assist persons with disabilities in employment.
This bill would define dignity stipend as the value provided by an employer to workers defined by the Department of Rehabilitation as eligible individuals with an intellectual or developmental disability severe enough to result in a substantial impediment to employment when the employer pays a special minimum wage to those workers, operates a community rehabilitation program certified by the Department of Rehabilitation that provides services to those workers, and the hourly wage plus the hourly cost of providing those services exceeds 125% of the California minimum wage rate for those workers. The bill would require the department to determine whether an employer that operates a community rehabilitation program provides a dignity stipend, when certifying the program.
Existing state and federal laws provide for payment of a special minimum wage for workers with disabilities that is lower than the established minimum wage rate, under specified circumstances. Existing law authorizes the Department of Rehabilitation to regulate vocational rehabilitation services, which are defined as specified services and goods to assist persons with disabilities in employment.
This bill would define dignity stipend as the value provided by an employer to workers defined by the Department of Rehabilitation as eligible individuals with mental disabilities an intellectual or developmental disability severe enough to result in a substantial impediment to employment when the employer pays a special minimum wage to those workers, operates a community rehabilitation program certified by the Department of Rehabilitation that provides services to those workers, and the hourly wage plus the hourly cost of providing those services exceeds 125% of the California minimum wage rate for those workers. The bill would require the department to determine whether an employer that operates a community rehabilitation program provides a dignity stipend, when certifying the program.
Existing state and federal laws provide for payment of a special minimum wage for workers with disabilities that is lower than the established minimum wage rate, under specified circumstances. Existing law authorizes the Department of Rehabilitation to regulate vocational rehabilitation services, which are defined as specified services and goods to assist persons with disabilities in employment.
This bill would define dignity stipend as the value provided by an employer to workers defined by the Department of Rehabilitation as eligible individuals with mental disabilities when the employer pays a special minimum wage to those workers, operates a community rehabilitation program certified by the Department of Rehabilitation that provides services to those workers, and the hourly wage plus the hourly cost of providing those services exceeds 125% of the California minimum wage rate for those workers. The bill would require the department to determine whether an employer that operates a community rehabilitation program provides a dignity stipend, when certifying the program.
Existing law establishes the Medi-Cal program, which is administered by the State Department of Health Care Services, and under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Existing law requires the department to develop and implement a program to provide a community-living support benefit to eligible Medi-Cal beneficiaries. Existing law requires the community-living support benefit to include reimbursement for an array of health-related and psychological services provided or coordinated at community-based housing sites, and access to community-living support services provided or coordinated at the community-based housing site.
This bill would make technical, nonsubstantive changes to this provision.
Existing law establishes the Medi-Cal program, which is administered by the State Department of Health Care Services, and under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Existing law requires the department to develop and implement a program to provide a community-living support benefit to eligible Medi-Cal beneficiaries. Existing law requires the community-living support benefit to include reimbursement for an array of health-related and psychological services provided or coordinated at community-based housing sites, and access to community-living support services provided or coordinated at the community-based housing site.
This bill would make technical, nonsubstantive changes to this provision.
As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a)Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b)Age refers to the chronological age of any individual who has reached his or her 40th birthday.
(c)Except as provided by Section 12926.05, employee does not include any individual employed by his or her parents, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
(d)Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
Employer does not include a religious association or corporation not organized for private profit.
(e)Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.
(f)Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.
(1)A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A)The function may be essential because the reason the position exists is to perform that function.
(B)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C)The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2)Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A)The employers judgment as to which functions are essential.
(B)Written job descriptions prepared before advertising or interviewing applicants for the job.
(C)The amount of time spent on the job performing the function.
(D)The consequences of not requiring the incumbent to perform the function.
(E)The terms of a collective bargaining agreement.
(F)The work experiences of past incumbents in the job.
(G)The current work experience of incumbents in similar jobs.
(g)(1)Genetic information means, with respect to any individual, information about any of the following:
(A)The individuals genetic tests.
(B)The genetic tests of family members of the individual.
(C)The manifestation of a disease or disorder in family members of the individual.
(2)Genetic information includes 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.
(3)Genetic information does not include information about the sex or age of any individual.
(h)Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i)Medical condition means either of the following:
(1)Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2)Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:
(A)Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B)Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j)Mental disability includes, but is not limited to, all of the following:
(1)Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A)Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B)A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C)Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.
(2)Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k)Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l)On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m)Physical disability includes, but is not limited to, all of the following:
(1)Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A)Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B)Limits a major life activity. For purposes of this section:
(i)Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii)A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii)Major life activities shall be broadly construed and includes physical, mental, and social activities and working.
(2)Any other health impairment not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6)Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n)Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o)Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p)Reasonable accommodation may include either of the following:
(1)Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2)Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q)Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.
(r)(1)Sex includes, but is not limited to, the following:
(A)Pregnancy or medical conditions related to pregnancy.
(B)Childbirth or medical conditions related to childbirth.
(C)Breastfeeding or medical conditions related to breastfeeding.
(2)Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.
(s)Sexual orientation means heterosexuality, homosexuality, and bisexuality.
(t)Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u)Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1)The nature and cost of the accommodation needed.
(2)The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3)The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4)The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5)The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v)National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.
SEC. 2.Section 12926.05 is added to the Government Code, to read:12926.05.(a)An individual employed under a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility may bring an action under this part for any form of harassment or discrimination prohibited by this part.
(b)If an individual specified in subdivision (a) brings an action against an employer for any form of harassment or discrimination prohibited by this part, the employer has an affirmative defense to the action by proving, by a preponderance of evidence, both of the following:
(1)The challenged activity was permitted by statute or regulation.
(2)The challenged activity was necessary to serve employees with disabilities under a special license pursuant to Section 1191 or 1191.5 of the Labor Code.
(c)Nothing in this part relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a license pursuant to Section 1191.5 of the Labor Code or paying an individual with a physical or mental disability less than minimum wage pursuant to either Section 1191 or Section 1191.5 of the Labor Code.
(d)The Legislature finds and declares that the definition of employee in subdivision (c) of Section 12926 was not intended to permit the harassment of, or discrimination against, an individual employed under a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility.
As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a)Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b)Age refers to the chronological age of any individual who has reached his or her 40th birthday.
(c)Except as provided by Section 12926.05, employee does not include any individual employed by his or her parents, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
(d)Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
Employer does not include a religious association or corporation not organized for private profit.
(e)Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.
(f)Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.
(1)A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A)The function may be essential because the reason the position exists is to perform that function.
(B)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C)The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2)Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A)The employers judgment as to which functions are essential.
(B)Written job descriptions prepared before advertising or interviewing applicants for the job.
(C)The amount of time spent on the job performing the function.
(D)The consequences of not requiring the incumbent to perform the function.
(E)The terms of a collective bargaining agreement.
(F)The work experiences of past incumbents in the job.
(G)The current work experience of incumbents in similar jobs.
(g)(1)Genetic information means, with respect to any individual, information about any of the following:
(A)The individuals genetic tests.
(B)The genetic tests of family members of the individual.
(C)The manifestation of a disease or disorder in family members of the individual.
(2)Genetic information includes 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.
(3)Genetic information does not include information about the sex or age of any individual.
(h)Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i)Medical condition means either of the following:
(1)Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2)Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:
(A)Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B)Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j)Mental disability includes, but is not limited to, all of the following:
(1)Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A)Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B)A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C)Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.
(2)Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k)Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l)On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m)Physical disability includes, but is not limited to, all of the following:
(1)Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A)Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B)Limits a major life activity. For purposes of this section:
(i)Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii)A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii)Major life activities shall be broadly construed and includes physical, mental, and social activities and working.
(2)Any other health impairment not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6)Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n)Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o)Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p)Reasonable accommodation may include either of the following:
(1)Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2)Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q)Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.
(r)(1)Sex includes, but is not limited to, the following:
(A)Pregnancy or medical conditions related to pregnancy.
(B)Childbirth or medical conditions related to childbirth.
(C)Breastfeeding or medical conditions related to breastfeeding.
(2)Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.
(s)Sexual orientation means heterosexuality, homosexuality, and bisexuality.
(t)Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u)Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1)The nature and cost of the accommodation needed.
(2)The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3)The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4)The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5)The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v)National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.
SEC. 2.Section 12926.05 is added to the Government Code, to read:12926.05.(a)An individual employed under a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility may bring an action under this part for any form of harassment or discrimination prohibited by this part.
(b)If an individual specified in subdivision (a) brings an action against an employer for any form of harassment or discrimination prohibited by this part, the employer has an affirmative defense to the action by proving, by a preponderance of evidence, both of the following:
(1)The challenged activity was permitted by statute or regulation.
(2)The challenged activity was necessary to serve employees with disabilities under a special license pursuant to Section 1191 or 1191.5 of the Labor Code.
(c)Nothing in this part relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a license pursuant to Section 1191.5 of the Labor Code or paying an individual with a physical or mental disability less than minimum wage pursuant to either Section 1191 or Section 1191.5 of the Labor Code.
(d)The Legislature finds and declares that the definition of employee in subdivision (c) of Section 12926 was not intended to permit the harassment of, or discrimination against, an individual employed under a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility.
As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a)Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b)Age refers to the chronological age of any individual who has reached his or her 40th birthday.
(c)Employee Except as provided by Section 12926.05, employee does not include any individual employed by his or her parents, spouse, or child. child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
(d)Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
Employer does not include a religious association or corporation not organized for private profit.
(e)Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.
(f)Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.
(1)A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A)The function may be essential because the reason the position exists is to perform that function.
(B)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C)The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2)Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A)The employers judgment as to which functions are essential.
(B)Written job descriptions prepared before advertising or interviewing applicants for the job.
(C)The amount of time spent on the job performing the function.
(D)The consequences of not requiring the incumbent to perform the function.
(E)The terms of a collective bargaining agreement.
(F)The work experiences of past incumbents in the job.
(G)The current work experience of incumbents in similar jobs.
(g)(1)Genetic information means, with respect to any individual, information about any of the following:
(A)The individuals genetic tests.
(B)The genetic tests of family members of the individual.
(C)The manifestation of a disease or disorder in family members of the individual.
(2)Genetic information includes 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.
(3)Genetic information does not include information about the sex or age of any individual.
(h)Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i)Medical condition means either of the following:
(1)Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2)Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:
(A)Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B)Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j)Mental disability includes, but is not limited to, all of the following:
(1)Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A)Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B)A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C)Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.
(2)Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k)Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l)On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m)Physical disability includes, but is not limited to, all of the following:
(1)Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A)Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B)Limits a major life activity. For purposes of this section:
(i)Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii)A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii)Major life activities shall be broadly construed and includes physical, mental, and social activities and working.
(2)Any other health impairment not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6)Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n)Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o)Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p)Reasonable accommodation may include either of the following:
(1)Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2)Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q)Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.
(r)(1)Sex includes, but is not limited to, the following:
(A)Pregnancy or medical conditions related to pregnancy.
(B)Childbirth or medical conditions related to childbirth.
(C)Breastfeeding or medical conditions related to breastfeeding.
(2)Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.
(s)Sexual orientation means heterosexuality, homosexuality, and bisexuality.
(t)Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u)Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1)The nature and cost of the accommodation needed.
(2)The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3)The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4)The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5)The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v)National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.
SEC. 2.Section 12926.05 is added to the Government Code, to read:12926.05.(a)An individual employed under a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility may bring an action under this part for any form of harrassment or discrimination prohibited by this part.
(b)If an individual specified in subdivision (a) brings an action against an employer for any form of harassment or discrimination prohibited by this part, the employer has an affirmative defense to the action by proving, by a preponderance of evidence, both of the following:
(1)The challenged activity was permitted by statute or regulation.
(2)The challenged activity was necessary to serve employees with disabilities under a special license pursuant to Section 1191 or 1191.5 of the Labor Code.
(c)Nothing in this part relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a license pursuant to Section 1191.5 of the Labor Code or paying an individual with a physical or mental disability less than minimum wage pursuant to either Section 1191 or Section 1191.5 of the Labor Code.
(d)The Legislature finds and declares that the definition of employee in subdivision (c) of Section 12926 was not intended to permit the harassment of, or discrimination against, an individual employed under a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility.
All matter omitted in this version of the bill appears in the bill as amended in the Senate, June 21, 2016. (JR11)As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a)Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b)Age refers to the chronological age of any individual who has reached his or her 40th birthday.
(c)Employee includes an individual paid under a special license in a sheltered workshop, rehabilitation facility, or day program but does not include any individual employed by his or her parents, spouse, or child.
(d)Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
Employer does not include a religious association or corporation not organized for private profit.
(e)Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.
(f)Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.
(1)A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A)The function may be essential because the reason the position exists is to perform that function.
(B)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C)The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2)Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A)The employers judgment as to which functions are essential.
(B)Written job descriptions prepared before advertising or interviewing applicants for the job.
(C)The amount of time spent on the job performing the function.
(D)The consequences of not requiring the incumbent to perform the function.
(E)The terms of a collective bargaining agreement.
(F)The work experiences of past incumbents in the job.
(G)The current work experience of incumbents in similar jobs.
(g)(1)Genetic information means, with respect to any individual, information about any of the following:
(A)The individuals genetic tests.
(B)The genetic tests of family members of the individual.
(C)The manifestation of a disease or disorder in family members of the individual.
(2)Genetic information includes 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.
(3)Genetic information does not include information about the sex or age of any individual.
(h)Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i)Medical condition means either of the following:
(1)Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2)Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:
(A)Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B)Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j)Mental disability includes, but is not limited to, all of the following:
(1)Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A)Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B)A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C)Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.
(2)Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k)Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l)On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m)Physical disability includes, but is not limited to, all of the following:
(1)Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A)Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B)Limits a major life activity. For purposes of this section:
(i)Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii)A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii)Major life activities shall be broadly construed and includes physical, mental, and social activities and working.
(2)Any other health impairment not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6)Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n)Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o)Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p)Reasonable accommodation may include either of the following:
(1)Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2)Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials, materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q)Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.
(r)(1)Sex includes, but is not limited to, the following:
(A)Pregnancy or medical conditions related to pregnancy.
(B)Childbirth or medical conditions related to childbirth.
(C)Breastfeeding or medical conditions related to breastfeeding.
(2)Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.
(s)Sexual orientation means heterosexuality, homosexuality, and bisexuality.
(t)Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u)Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1)The nature and cost of the accommodation needed.
(2)The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3)The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4)The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5)The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v)National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.
SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.
(2)Nothing in this part relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a license pursuant to Section 1191.5 of the Labor Code or paying an individual with a physical or mental disability less than minimum wage pursuant to either Section 1191 or Section 1191.5 of the Labor Code.
(3)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform his or her essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(4)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(5)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(6)(A)This part does not prohibit an employer from refusing to employ an individual because of his or her age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a)Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b)Age refers to the chronological age of any individual who has reached his or her 40th birthday.
(c)Employee includes an individual paid under a special license in a sheltered workshop, rehabilitation facility, or day program but does not include any individual employed by his or her parents, spouse, or child.
(d)Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
Employer does not include a religious association or corporation not organized for private profit.
(e)Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.
(f)Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.
(1)A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A)The function may be essential because the reason the position exists is to perform that function.
(B)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C)The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2)Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A)The employers judgment as to which functions are essential.
(B)Written job descriptions prepared before advertising or interviewing applicants for the job.
(C)The amount of time spent on the job performing the function.
(D)The consequences of not requiring the incumbent to perform the function.
(E)The terms of a collective bargaining agreement.
(F)The work experiences of past incumbents in the job.
(G)The current work experience of incumbents in similar jobs.
(g)(1)Genetic information means, with respect to any individual, information about any of the following:
(A)The individuals genetic tests.
(B)The genetic tests of family members of the individual.
(C)The manifestation of a disease or disorder in family members of the individual.
(2)Genetic information includes 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.
(3)Genetic information does not include information about the sex or age of any individual.
(h)Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i)Medical condition means either of the following:
(1)Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2)Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:
(A)Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B)Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j)Mental disability includes, but is not limited to, all of the following:
(1)Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A)Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B)A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C)Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.
(2)Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k)Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l)On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m)Physical disability includes, but is not limited to, all of the following:
(1)Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A)Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B)Limits a major life activity. For purposes of this section:
(i)Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii)A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii)Major life activities shall be broadly construed and includes physical, mental, and social activities and working.
(2)Any other health impairment not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6)Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n)Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o)Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p)Reasonable accommodation may include either of the following:
(1)Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2)Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials materials, or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q)Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.
(r)(1)Sex includes, but is not limited to, the following:
(A)Pregnancy or medical conditions related to pregnancy.
(B)Childbirth or medical conditions related to childbirth.
(C)Breastfeeding or medical conditions related to breastfeeding.
(2)Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.
(s)Sexual orientation means heterosexuality, homosexuality, and bisexuality.
(t)Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u)Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1)The nature and cost of the accommodation needed.
(2)The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3)The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4)The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5)The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v)National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.
SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.
(2)Nothing in this part relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a license pursuant to Section 1191.5 of the Labor Code or paying an individual with a physical or mental disability less than minimum wage pursuant to either Section 1191 or Section 1191.5 of the Labor Code.
(2)
(3)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform his or her essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)
(4)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)
(5)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)
(6)(A)This part does not prohibit an employer from refusing to employ an individual because of his or her age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:
(a)Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b)Age refers to the chronological age of any individual who has reached his or her 40th birthday.
(c)Employee does not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. child.
(d)Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
Employer does not include a religious association or corporation not organized for private profit.
(e)Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.
(f)Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.
(1)A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A)The function may be essential because the reason the position exists is to perform that function.
(B)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C)The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2)Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A)The employers judgment as to which functions are essential.
(B)Written job descriptions prepared before advertising or interviewing applicants for the job.
(C)The amount of time spent on the job performing the function.
(D)The consequences of not requiring the incumbent to perform the function.
(E)The terms of a collective bargaining agreement.
(F)The work experiences of past incumbents in the job.
(G)The current work experience of incumbents in similar jobs.
(g)(1)Genetic information means, with respect to any individual, information about any of the following:
(A)The individuals genetic tests.
(B)The genetic tests of family members of the individual.
(C)The manifestation of a disease or disorder in family members of the individual.
(2)Genetic information includes 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.
(3)Genetic information does not include information about the sex or age of any individual.
(h)Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i)Medical condition means either of the following:
(1)Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2)Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:
(A)Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B)Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j)Mental disability includes, but is not limited to, all of the following:
(1)Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A)Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B)A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C)Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.
(2)Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k)Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l)On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m)Physical disability includes, but is not limited to, all of the following:
(1)Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A)Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B)Limits a major life activity. For purposes of this section:
(i)Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii)A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii)Major life activities shall be broadly construed and includes physical, mental, and social activities and working.
(2)Any other health impairment not described in paragraph (1) that requires special education or related services.
(3)Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4)Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5)Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6)Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n)Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o)Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p)Reasonable accommodation may include either of the following:
(1)Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2)Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q)Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.
(r)(1)Sex includes, but is not limited to, the following:
(A)Pregnancy or medical conditions related to pregnancy.
(B)Childbirth or medical conditions related to childbirth.
(C)Breastfeeding or medical conditions related to breastfeeding.
(2)Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.
(s)Sexual orientation means heterosexuality, homosexuality, and bisexuality.
(t)Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u)Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1)The nature and cost of the accommodation needed.
(2)The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3)The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4)The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5)The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v)National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.
SECTION 1.Section 19155 is added to the Welfare and Institutions Code, to read:19155.Dignity stipend means the value provided by an employer to workers defined by the Department of Rehabilitation as eligible individuals with an intellectual or developmental disability severe enough to result in a substantial impediment to employment under the following conditions:
(a)The employer operates a community rehabilitation program certified by the Department of Rehabilitation that provides vocational rehabilitation services to the workers described in subdivision (b).
(b)The employer pays a special minimum wage to workers with disabilities pursuant to Section 214(c) of Title 29 of the United States Code or Section 1191 or 1191.5 of the Labor Code.
(c)The hourly wage described in subdivision (b) added to the employers hourly cost of providing the services described in subdivision (a) exceeds 125 percent of the California minimum wage rate for each of the workers described in subdivision (b).
SEC. 2.Section 19405 is added to the Welfare and Institutions Code, to read:19405.The department shall determine, in certifying a community rehabilitation program, whether the employer that operates the program provides a dignity stipend, as defined in Section 19155.
Dignity stipend means the value provided by an employer to workers defined by the Department of Rehabilitation as eligible individuals with mental disabilities an intellectual or developmental disability severe enough to result in a substantial impediment to employment under the following conditions:
(a)The employer operates a community rehabilitation program certified by the Department of Rehabilitation that provides vocational rehabilitation services to the workers described in subdivision (b).
(b)The employer pays a special minimum wage to workers with disabilities pursuant to Section 214(c) of Title 29 of the United States Code or Section 1191 or 1191.5 of the Labor Code.
(c)The hourly wage described in subdivision (b) added to the employers hourly cost of providing the services described in subdivision (a) exceeds 125 percent of the California minimum wage rate for each of the workers described in subdivision (b).
SEC. 2.Section 19405 is added to the Welfare and Institutions Code, to read:19405.The department shall determine, in certifying a community rehabilitation program, whether the employer that operates the program provides a dignity stipend, as defined in Section 19155.
Dignity stipend means the value provided by an employer to workers defined by the Department of Rehabilitation as eligible individuals with mental disabilities under the following conditions:
(a)The employer operates a community rehabilitation program certified by the Department of Rehabilitation that provides vocational rehabilitation services to the workers described in subdivision (b).
(b)The employer pays a special minimum wage to workers with disabilities pursuant to Section 214(c) of Title 29 of the United States Code or Section 1191 or 1191.5 of the Labor Code.
(c)The hourly wage described in subdivision (b) added to the employers hourly cost of providing the services described in subdivision (a) exceeds 125 percent of the California minimum wage rate for each of the workers described in subdivision (b).
SEC. 2.Section 19405 is added to the Welfare and Institutions Code, to read:19405.The department shall determine, in certifying a community rehabilitation program, whether the employer that operates the program provides a dignity stipend as defined in Section 19155.
SECTION 1.Section 14132.24 of the Welfare and Institutions Code is amended to read:14132.24.(a)The department shall develop and implement a program to provide a community-living support benefit to eligible Medi-Cal beneficiaries. The department shall submit any waiver application, modification of any existing waiver, or amendment to the Medicaid state plan, that is necessary to provide this benefit, and shall implement the benefit only to the extent that federal financial participation is available.
(b)The community-living support benefit shall include both of the following:
(1)(A)Reimbursement for an array of health-related and psychosocial services provided or coordinated at community-based housing sites that enable beneficiaries to remain in the least restrictive and most homelike environment while receiving the health-related services, including personal care and psychosocial services, necessary to protect their health and well-being. These community-based housing units may include, but are not limited to, the living area or unit within a facility that is specifically designed to provide ongoing assisted living services, licensed residential care facilities for the elderly, publicly funded senior and disabled housing projects, or supportive housing sites that serve chronically homeless individuals with chronic or disabling health conditions.
(B)For purposes of this section, assisted living services includes, but is not limited to, assistance with personal activities of daily living, including dressing, feeding, toileting, bathing, grooming, mobility, and associated tasks, to help provide for and maintain physical and psychological comfort.
(2)Access to community-living support services provided or coordinated at the community-based housing site, including, but not limited to, the personal care and health services specified in paragraph (8) of subdivision (a) of Section 1788 of the Health and Safety Code, and the health related support services specified in former Section 53290 of the Health and Safety Code.
(c)Services available through the community-living support benefit shall not duplicate services available through the Medi-Cal state plan, other Medi-Cal waivers, or other programs financed by the state.
(d)An individual shall be eligible for the community-living support benefit if he or she is eligible for the Medi-Cal program, is a resident of San Francisco who would otherwise be homeless, living in shelters, or institutionalized, and meets one or both of the following criteria:
(1)The department determines that he or she would benefit from supportive housing, as defined in subdivision (c) of former Section 53260 of the Health and Safety Code.
(2)The department determines that he or she is eligible for placement in a skilled nursing facility, as defined in subdivision (c) of Section 1250 of the Health and Safety Code, or an intermediate care facility, as defined in subdivision (d) of that section.
(e)The department may modify the eligibility criteria specified in subdivision (d), if needed, to qualify the community-living support benefit for federal financial participation.
(f)The department shall seek to maximize resources for community-based housing by coordinating the community-living support benefit with existing efforts to coordinate care, improve health outcomes, and reduce long-term care costs for the targeted population.
(g)This section shall be implemented only upon adoption of a resolution by the Board of Supervisors of the City and County of San Francisco providing county funds for use by the state to match federal Medicaid funds to receive federal funds for services provided under the waiver specified in this section, and for any costs associated with implementing and monitoring the waiver, to limit additional state costs.
(a)The department shall develop and implement a program to provide a community-living support benefit to eligible Medi-Cal beneficiaries. The department shall submit any waiver application, modification of any existing waiver, or amendment to the Medicaid state plan, that is necessary to provide this benefit, and shall implement the benefit only to the extent that federal financial participation is available.
(b)The community-living support benefit shall include both of the following:
(1)(A)Reimbursement for an array of health-related and psychosocial services provided or coordinated at community-based housing sites that enable beneficiaries to remain in the least restrictive and most homelike environment while receiving the health-related services, including personal care and psychosocial services, necessary to protect their health and well-being. These community-based housing units may include, but are not limited to, the living area or unit within a facility that is specifically designed to provide ongoing assisted living services, licensed residential care facilities for the elderly, publicly funded senior and disabled housing projects, or supportive housing sites that serve chronically homeless individuals with chronic or disabling health conditions.
(B)For purposes of this section, assisted living services includes, but is not limited to, assistance with personal activities of daily living, including dressing, feeding, toileting, bathing, grooming, mobility, and associated tasks, to help provide for and maintain physical and psychological comfort.
(2)Access to community-living support services provided or coordinated at the community-based housing site, including, but not limited to, the personal care and health services specified in paragraph (8) of subdivision (a) of Section 1788 of the Health and Safety Code, and the health related support services specified in former Section 53290 of the Health and Safety Code.
(c)Services available through the community-living support benefit shall not duplicate services available through the Medi-Cal state plan, other Medi-Cal waivers, or other programs financed by the state.
(d)An individual shall be eligible for the community-living support benefit if he or she is eligible for the Medi-Cal program, is a resident of San Francisco who would otherwise be homeless, living in shelters, or institutionalized, and meets one or both of the following criteria:
(1)The department determines that he or she would benefit from supportive housing, as defined in subdivision (c) of former Section 53260 of the Health and Safety Code.
(2)The department determines that he or she is eligible for placement in a skilled nursing facility, as defined in subdivision (c) of Section 1250 of the Health and Safety Code, or an intermediate care facility, as defined in subdivision (d) of that section.
(e)The department may modify the eligibility criteria specified in subdivision (d), if needed, to qualify the community-living support benefit for federal financial participation.
(f)The department shall seek to maximize resources for community-based housing by coordinating the community-living support benefit with existing efforts to coordinate care, improve health outcomes, and reduce long-term care costs for the targeted population.
(g)This section shall be implemented only upon adoption of a resolution by the Board of Supervisors of the City and County of San Francisco providing county funds for use by the state to match federal Medicaid funds to receive federal funds for services provided under the waiver specified in this section, and for any costs associated with implementing and monitoring the waiver, to limit additional state costs.
|
Date
|
Status
|
|---|---|
| Jan 15, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 69. Noes 0. Page 3427.) |
| Sep 8, 2016 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 30, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 79. Noes 0. Page 6446.). |
| Aug 30, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Aug 26, 2016 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 28 pursuant to Assembly Rule 77. |
| Aug 15, 2016 | Read third time. Passed. Ordered to the Assembly. (Ayes 26. Noes 11.). |
| Aug 15, 2016 | Read third time. Passed. Ordered to the Assembly. (Ayes 26. Noes 11. Page 4970.). |
| Aug 15, 2016 | Read third time. Passed. Ordered to the Assembly. |
| Aug 3, 2016 | Read second time. Ordered to third reading. |
| Aug 2, 2016 | Read third time and amended. Ordered to second reading. |
| Jun 21, 2016 | Read second time and amended. Ordered to third reading. |
| Jun 20, 2016 | From committee: Amend, and do pass as amended. (Ayes 5. Noes 2.) (June 14). |
| Mar 31, 2016 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| Jan 28, 2016 | Referred to Com. on JUD. |
| Feb 23, 2015 | Read first time. To print. |
| Jan 15, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Jan 7, 2016 | Read second time. Ordered to third reading. |
| Jan 6, 2016 | From committee: Do pass. (Ayes 7. Noes 0.) (January 6). |
| Jan 4, 2016 | Re-referred to Com. on L. & E. |
| Jan 4, 2016 | From committee chair, with author's amendments: Amend, and re-refer to Com. on L. & E. Read second time and amended. |
| Apr 20, 2015 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Apr 15, 2015 | Re-referred to Com. on L. & E. |
| Apr 14, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on L. & E. Read second time and amended. |
| Apr 6, 2015 | Re-referred to Com. on L. & E. |
| Mar 26, 2015 | Referred to Com. on L. & E. |
| Mar 26, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on L. & E. Read second time and amended. |
| Feb 24, 2015 | From printer. May be heard in committee March 26. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 30, 2016 | AB 488 GONZALEZ Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 15, 2016 | Assembly 3rd Reading AB488 Gonzalez By Hueso | Senate Floor |
Passed |
|
| Jun 14, 2016 | Do pass as amended | Senate Standing Committee on Judiciary |
Passed |
|
| Jan 15, 2016 | AB 488 GONZALEZ Assembly Third Reading | Assembly Floor |
Passed |
|
| Jan 6, 2016 | Do pass. | Assembly Standing Committee on Labor and Employment |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Alliance for Statewide Network of Providers | * Against Unless Amend | Jun 14, 2016 |
| California Disability Services Association | ** Against | Aug 15, 2016 |
| California Foundation For Independent Living Centers | ** Support | Aug 15, 2016 |
| California Immigrant Policy Center | * Support | Jun 14, 2016 |
| California Labor Federation, Afl-Cio | * Support | Jun 14, 2016 |
| California Teamsters Public Affairs Council | * Neutral | Jun 14, 2016 |
| CAOC | * Support | Jun 14, 2016 |
| Coalition for Humane Immigrant Legal Rights of Los Angeles (CHIRLA) | * Support | Jun 14, 2016 |
| Disabilities Services Association | * Against Unless Amend | Jun 14, 2016 |
| Disability Rights California | ** Support | Aug 15, 2016 |
| Disability Rights Education and Defense Fund | ** Support | Aug 15, 2016 |
| Dreyer Badich | * Support | Jun 14, 2016 |
| Equality California | * Support | Jun 14, 2016 |
| Mexican American Legal Defense and Educational Fund | * Support | Jun 14, 2016 |
| National Association of Social Workers - California | * Support | Jun 14, 2016 |
| Pleasantview Industries | ** Against | Aug 15, 2016 |
| San Gabriel Valley Training Center | ** Against | Aug 15, 2016 |
| SEIU California State Council | * Support | Jun 14, 2016 |
| State Council on Developmental Disabilities | ** Support | Aug 15, 2016 |
| VIP, Inc. | ** Against | Aug 15, 2016 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 488
Author:(Gonzalez)
As Amended Ver:August 2, 2016
Majority vote
ASSEMBLY: | 69-0 | (January 15, 2016) | SENATE: | 26-11 | (August 15, 2016) |
Original Committee Reference: L. & E.
SUMMARY: Authorizes individuals employed under a special license in a nonprofit sheltered workshop or rehabilitation facility to bring an action under the Fair Employment and Housing Act (FEHA) for prohibited harassment or discrimination.
The Senate amendments revise the bill to:
- Provide that an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility may bring an action under FEHA for any form of harassment or discrimination prohibited by FEHA.
- Specify that if such an individual brings an action against an employer for any form of harassment or discrimination, the employer has an affirmative defense to the action by proving, by a preponderance of evidence, both of the following:
- The challenged activity was permitted by statute or regulation.
- The challenged activity was necessary to serve employees with disabilities under a special license authorized the Labor Code.
- Provide that nothing in FEHA related to disability discrimination shall subject an employer to legal liability for obtaining a special license under the Labor Code or paying an individual with a physical or mental disability less than minimum wage, as authorized under the Labor Code.
- Make a related legislative finding and declaration.
EXISTING LAW:
- Prohibits employment discrimination and harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against. (Government Code Section 12940 et seq.)
- Provides that "employee" for purposes of these protections does not include any individual employed by his or her parents, spouse, or child, "or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
FISCAL EFFECT: None. This bill is keyed non-fiscal by Legislative Counsel.
COMMENTS: The California Fair Employment and Housing Act (FEHA) prohibits employment discrimination and harassment of individuals on the basis of specified enumerated categories - race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
FEHA defines an "employer" as any person regularly employing five or more persons, but does not include a religious association or corporation not organized for private profit.
FEHA also excludes from the definition of "employee" any individual employed by his or her parents, spouse or child, or "any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
According to the author, workers in sheltered workshops and rehabilitation centers are currently excluded from the protections against discrimination and sexual harassment offered by FEHA. This leaves workers with disabilities who are employed in these settings no recourse for discrimination based on characteristics like race, religion or gender identity by their employer.
The author notes that AB 1443 (Skinner), Chapter 302, Statutes of 2014 extended FEHA's protections to cover unpaid interns and volunteers, suggesting that these workplace protections are appropriate even for those making less than minimum wage or in a program for a limited time to gain experience.
Also, the author notes that, while California has been moving towards competitive and integrated job placements for individuals with disabilities, this does not take away from the fact that it is important for workers in all settings to have legal protections against and recourse from discrimination and harassment.
The sponsor of this bill, Disability Rights California, states that it would change the Government Code so that individuals with disabilities who are in sheltered work are provided the same protections as other employees under FEHA. They argue that reform is needed to strengthen rights and protections for sheltered workshop employees who work in highly-restrictive environments and currently are not afforded the same protections against discrimination as other employees.
Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0003731
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 488
:
SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
ASSEMBLY FLOOR: 69-0, 1/15/16 - See last page for vote
SOURCE: Disability Rights California
State Council on Developmental Disabilities
DIGEST: This bill adds a new provision to the Fair Employment and Housing Act (FEHA) to expressly authorize an individual employed under a special license under the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility, to bring an action under FEHA for any form or discrimination prohibited under that act. This bill also specifies that, in any such action, the employer has an affirmative defense, as specified, if the challenged activity was permitted by statute or regulation and the challenged activity was necessary to serve employees with disabilities under the specified special license. This bill also provides, however, that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to a specified license from the Industrial Welfare Commission under existing law.
Senate Floor Amendments of 8/2/16 (1) authorize individuals employed under a special license under the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility, to bring actions for any form or discrimination prohibited under FEHA; (2) provide employers with a specified affirmative defense in such actions; and (3) codify a legislative finding and declaration, as specified.
Existing law:
- Prohibits, as a matter of federal law, under Title VII of the Civil Rights Act, discrimination and harassment of employees.
- Provides, as a matter of federal law, Section 14(c) of the federal Fair Labor Standards Act, for the employment of certain individuals at wage rates below the minimum wage. Under this provision, individuals whose earnings or productive capacity is impaired by physical or mental disability for the work to be performed, including those related to age or injury, may be paid less than the federal minimum wage. Certificates issued by the Department of Labor to the employer are required for the employer to pay the special minimum wage.
- Authorizes, under Labor Code Sections 1191 and 1191.5, mentally or physically handicapped employees (and nonprofit sheltered workshops and rehabilitation facilities employing them) to be issued a license by the Industrial Welfare Commission authorizing a special subminimum wage.
- Prohibits, under FEHA, as a matter of public policy, discrimination and harassment in employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
- Provides, under FEHA, that it is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations, as specified, for an employer to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment, or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment, because of any of the above-listed protected bases.
- Provides further under FEHA, however, that such disability discrimination protections do not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.
- Prohibits, under FEHA, an employer or other entity to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee; however, an employer is not required to provide accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined.
- Provides, for purposes of FEHA, that the term “employee” does not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
This bill:
- Provides that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to specified laws, above.
- Creates a limited exception to the individuals exempted from the definition of “employee,” under FEHA, as specified, and provides that an individual employed under a special license pursuant to the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility may bring an action under FEHA for any form of harassment or discrimination prohibited by FEHA.
- Provides that if an individual, specified above, brings an action against an employer for any form of harassment or discrimination prohibited by FEHA, the employer has an affirmative defense to the action by proving, by a preponderance of the evidence, both of the following:
- The challenged activity was permitted by statute or regulation.
- The challenged activity was necessary to serve employees with disabilities under a special license pursuant to the Labor Code, as specified.
- States that the Legislature finds and declares that the definition of employee under FEHA, above, was not intended to permit the harassment of, or discrimination against, an individual employed under a special license pursuant to the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility.
Background
California law reflects a strong public policy protecting individuals against discrimination under numerous statutes, covering a variety of contexts. FEHA and the Unruh Civil Rights Act, for example, prohibit discrimination in employment, housing, public accommodation, and services provided by business establishments on the basis of specified personal characteristics, such as sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh Civil Rights Act). Others still, prohibit discrimination in public schools and in other state-funded programs or activities. (See Educational Equity at Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et seq.)
Of particular import to this bill, FEHA not only protects an employee from discrimination on protected bases, but it also entitles the employee to certain accommodations under the law based on, for example, their religious creed or physical or mental disability. Further, FEHA generally protects an employee against retaliation by the employer if the employee has opposed any of the employer’s discriminatory practices or because the employee has filed a complaint, testified, or assisted in a FEHA proceeding against the employer. That being said, under current law, FEHA exempts from its definition of “employee” any person who is employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. Thus, such individuals employed by a nonprofit sheltered workshop or rehabilitation facility, could presumably be discriminated against on the basis of their sex, religion, race, marital status, national origin, and more, without any protections under the law and without any consequence to the employer who would otherwise be held in violation of FEHA with respect to any other employees.
Accordingly, this bill seeks to ensure that any individual employed under a special license in a nonprofit sheltered workshop, daycare program, or rehabilitation facility, while generally exempted from the FEHA definition of an “employee,” nonetheless maintains a cause of action against an employer who harasses or discriminates against them in violation of FEHA, except as specified. At the same time, this bill also ensures that an employer who obtains a specified license or pays an individual less than minimum wage pursuant to a specified license from the California Industrial Welfare Commission is not legally liable for doing so under the anti-disability discrimination provisions of FEHA.
Comments
As stated by the author:
The Legislature has made great strides in expanding the protections and opportunities for most Californians under the Fair Employment and Housing Act. From extending the bases of potential discrimination to include age, gender, and religious dress, to extending the definition of employee to include unpaid interns and volunteers, previous efforts have sought to ensure that all California workers are fully protected in the workplace.
However, we have failed individuals with disabilities working in sheltered workshops and rehabilitation centers by not addressing the exemption of these employers from these laws. This has left individuals with disabilities working in these settings without the same recourse as others, should a case of discrimination or harassment arise in their workplace. While we recognize the need for certain nuances regarding the compensation paid to these individuals and hiring practices of the sheltered workshops and rehabilitation centers, it is simply unacceptable to leave this population of workers without these basic workplace protections. [ . . . ]
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
Disability Rights California (co-source)
State Council on Developmental Disabilities (co-source)
Arc and United Cerebral Palsy California Collaboration
California Foundation for Independent Living Centers
California Labor Federation
Disability Rights Education and Defense Fund
SEIU California
Special Needs Network
Pleasantview Industries
Two individuals
ARGUMENTS IN SUPPORT: Disability Rights California, co-sponsor of this bill, writes “[c]urrently, under state law, ‘employee’ does not include any individual employed by a sheltered workshop or rehabilitation facility. This leaves people with disabilities employed in these settings no recourse for discrimination by their employer. [ . . . ] Reform is needed to strengthen rights and protections for sheltered workshop employees who work in highly-restrictive environments and currently are not afforded the same protections against discrimination as other employees.”
ARGUMENTS IN OPPOSITION: Opponents to a prior version of this bill write that while they “fully support making the law clear that ALL employees are entitled to FEHA protection from discrimination and harassment,” they “object to application of provisions that would impose liability for non-discriminatory behavior that is essential to the employment arrangements for individuals covered by the bill’s provisions.”
ASSEMBLY FLOOR: 69-0, 1/15/16
AYES: Achadjian, Alejo, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Irwin, Jones, Kim, Lackey, Levine, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rendon, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Williams, Wood, Atkins
NO VOTE RECORDED: Travis Allen, Bloom, Chávez, Eduardo Garcia, Gomez, Holden, Jones-Sawyer, Linder, Ridley-Thomas, Wilk
8/4/16 10:27:16
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 488
:
SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
ASSEMBLY FLOOR: 69-0, 1/15/16 - See last page for vote
SOURCE: Disability Rights California
State Council on Developmental Disabilities
DIGEST: This bill adds a new provision to the Fair Employment and Housing Act (FEHA) to expressly authorize an individual employed under a special license under the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility, to bring an action under FEHA for any form or discrimination prohibited under that act. This bill also specifies that, in any such action, the employer has an affirmative defense, as specified, if the challenged activity was permitted by statute or regulation and the challenged activity was necessary to serve employees with disabilities under the specified special license. This bill also provides, however, that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to a specified license from the Industrial Welfare Commission under existing law.
Senate Floor Amendments of 8/2/16 (1) authorize individuals employed under a special license under the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility, to bring actions for any form or discrimination prohibited under FEHA; (2) provide employers with a specified affirmative defense in such actions; and (3) codify a legislative finding and declaration, as specified.
Existing law:
- Prohibits, as a matter of federal law, under Title VII of the Civil Rights Act, discrimination and harassment of employees.
- Provides, as a matter of federal law, Section 14(c) of the federal Fair Labor Standards Act, for the employment of certain individuals at wage rates below the minimum wage. Under this provision, individuals whose earnings or productive capacity is impaired by physical or mental disability for the work to be performed, including those related to age or injury, may be paid less than the federal minimum wage. Certificates issued by the Department of Labor to the employer are required for the employer to pay the special minimum wage.
- Authorizes, under Labor Code Sections 1191 and 1191.5, mentally or physically handicapped employees (and nonprofit sheltered workshops and rehabilitation facilities employing them) to be issued a license by the Industrial Welfare Commission authorizing a special subminimum wage.
- Prohibits, under FEHA, as a matter of public policy, discrimination and harassment in employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
- Provides, under FEHA, that it is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations, as specified, for an employer to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment, or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment, because of any of the above-listed protected bases.
- Provides further under FEHA, however, that such disability discrimination protections do not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.
- Prohibits, under FEHA, an employer or other entity to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee; however, an employer is not required to provide accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined.
- Provides, for purposes of FEHA, that the term “employee” does not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
This bill:
- Provides that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to specified laws, above.
- Creates a limited exception to the individuals exempted from the definition of “employee,” under FEHA, as specified, and provides that an individual employed under a special license pursuant to the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility may bring an action under FEHA for any form of harassment or discrimination prohibited by FEHA.
- Provides that if an individual, specified above, brings an action against an employer for any form of harassment or discrimination prohibited by FEHA, the employer has an affirmative defense to the action by proving, by a preponderance of the evidence, both of the following:
- The challenged activity was permitted by statute or regulation.
- The challenged activity was necessary to serve employees with disabilities under a special license pursuant to the Labor Code, as specified.
- States that the Legislature finds and declares that the definition of employee under FEHA, above, was not intended to permit the harassment of, or discrimination against, an individual employed under a special license pursuant to the Labor Code, as specified, in a nonprofit sheltered workshop, day program, or rehabilitation facility.
Background
California law reflects a strong public policy protecting individuals against discrimination under numerous statutes, covering a variety of contexts. FEHA and the Unruh Civil Rights Act, for example, prohibit discrimination in employment, housing, public accommodation, and services provided by business establishments on the basis of specified personal characteristics, such as sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh Civil Rights Act). Others still, prohibit discrimination in public schools and in other state-funded programs or activities. (See Educational Equity at Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et seq.)
Of particular import to this bill, FEHA not only protects an employee from discrimination on protected bases, but it also entitles the employee to certain accommodations under the law based on, for example, their religious creed or physical or mental disability. Further, FEHA generally protects an employee against retaliation by the employer if the employee has opposed any of the employer’s discriminatory practices or because the employee has filed a complaint, testified, or assisted in a FEHA proceeding against the employer. That being said, under current law, FEHA exempts from its definition of “employee” any person who is employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. Thus, such individuals employed by a nonprofit sheltered workshop or rehabilitation facility, could presumably be discriminated against on the basis of their sex, religion, race, marital status, national origin, and more, without any protections under the law and without any consequence to the employer who would otherwise be held in violation of FEHA with respect to any other employees.
Accordingly, this bill seeks to ensure that any individual employed under a special license in a nonprofit sheltered workshop, daycare program, or rehabilitation facility, while generally exempted from the FEHA definition of an “employee,” nonetheless maintains a cause of action against an employer who harasses or discriminates against them in violation of FEHA, except as specified. At the same time, this bill also ensures that an employer who obtains a specified license or pays an individual less than minimum wage pursuant to a specified license from the California Industrial Welfare Commission is not legally liable for doing so under the anti-disability discrimination provisions of FEHA.
Comments
As stated by the author:
The Legislature has made great strides in expanding the protections and opportunities for most Californians under the Fair Employment and Housing Act. From extending the bases of potential discrimination to include age, gender, and religious dress, to extending the definition of employee to include unpaid interns and volunteers, previous efforts have sought to ensure that all California workers are fully protected in the workplace.
However, we have failed individuals with disabilities working in sheltered workshops and rehabilitation centers by not addressing the exemption of these employers from these laws. This has left individuals with disabilities working in these settings without the same recourse as others, should a case of discrimination or harassment arise in their workplace. While we recognize the need for certain nuances regarding the compensation paid to these individuals and hiring practices of the sheltered workshops and rehabilitation centers, it is simply unacceptable to leave this population of workers without these basic workplace protections. [ . . . ]
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
Disability Rights California (co-source)
State Council on Developmental Disabilities (co-source)
Arc and United Cerebral Palsy California Collaboration
California Foundation for Independent Living Centers
California Labor Federation
Disability Rights Education and Defense Fund
SEIU California
Special Needs Network
The Alliance Supporting People with Intellectual and Developmental Disabilities
Pleasantview Industries
San Gabriel Valley Training Center
Two individuals
ARGUMENTS IN SUPPORT: Disability Rights California, co-sponsor of this bill, writes “[c]urrently, under state law, ‘employee’ does not include any individual employed by a sheltered workshop or rehabilitation facility. This leaves people with disabilities employed in these settings no recourse for discrimination by their employer. [ . . . ] Reform is needed to strengthen rights and protections for sheltered workshop employees who work in highly-restrictive environments and currently are not afforded the same protections against discrimination as other employees.”
ARGUMENTS IN OPPOSITION: Several opponents to a prior version of this bill, including San Gabriel Valley Training Center, write that while they “fully support making the law clear that ALL employees are entitled to FEHA protection from discrimination and harassment,” they “object to application of provisions that would impose liability for non-discriminatory behavior that is essential to the employment arrangements for individuals covered by the bill’s provisions.”
ASSEMBLY FLOOR: 69-0, 1/15/16
AYES: Achadjian, Alejo, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Irwin, Jones, Kim, Lackey, Levine, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rendon, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Williams, Wood, Atkins
NO VOTE RECORDED: Travis Allen, Bloom, Chávez, Eduardo Garcia, Gomez, Holden, Jones-Sawyer, Linder, Ridley-Thomas, Wilk
Prepared by: Ronak Daylami / JUD. / (916) 651-4113
8/3/16 18:43:11
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 488
:
SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
ASSEMBLY FLOOR: 69-0, 1/15/16 - See last page for vote
SOURCE: Disability Rights California
State Council on Developmental Disabilities
DIGEST: This bill eliminates the current exemption for any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility from the Fair Employment and Housing Act’s (FEHA) definition of “employee,” thus protecting those individuals from any form of employment discrimination on the basis of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other things. This bill also provides, however, that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to a specified license from the Industrial Welfare Commission under existing law.
Existing law:
- Prohibits, as a matter of federal law, under Title VII of the Civil Rights Act, discrimination and harassment of employees.
- Provides, as a matter of federal law, Section 14(c) of the federal Fair Labor Standards Act (FLSA), for the employment of certain individuals at wage rates below the minimum wage. Under this provision, individuals whose earnings or productive capacity is impaired by physical or mental disability for the work to be performed, including those related to age or injury, may be paid less than the federal minimum wage. Certificates issued by the Department of Labor to the employer are required for the employer to pay the special minimum wage.
- Authorizes, under Labor Code Sections 1191 and 1191.5, mentally or physically handicapped employees (and nonprofit sheltered workshops and rehabilitation facilities employing them) to be issued a license by the Industrial Welfare Commission authorizing a special subminimum wage.
- Prohibits, under the Fair Employment and Housing Act (FEHA), as a matter of public policy, discrimination and harassment in employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
- Provides, under FEHA, that it is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations, as specified, for an employer to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment, or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment, because of any of the above-listed protected bases.
- Provides further under FEHA, however, that such disability discrimination protections do not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.
- Prohibits, under FEHA, an employer or other entity to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee; however, an employer is not required to provide accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined.
- Provides, for purposes of FEHA, that the term “employee” does not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
This bill:
- Repeals the language exempting an individual paid under a special license in a sheltered workshop or rehabilitation facility from the term “employee” under FEHA.
- Provides that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to specified laws, above.
Background
California law reflects a strong public policy protecting individuals against discrimination under numerous statutes, covering a variety of contexts. FEHA and the Unruh Civil Rights Act, for example, prohibit discrimination in employment, housing, public accommodation, and services provided by business establishments on the basis of specified personal characteristics, such as sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh Civil Rights Act). Others still, prohibit discrimination in public schools and in other state-funded programs or activities. (See Educational Equity at Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et seq.)
Of particular import to this bill, FEHA not only protects an employee from discrimination on protected bases, but it also entitles the employee to certain accommodations under the law based on, for example, their religious creed or physical or mental disability. Further, FEHA generally protects an employee against retaliation by the employer if the employee has opposed any of the employer’s discriminatory practices or because the employee has filed a complaint, testified, or assisted in a FEHA proceeding against the employer. That being said, under current law, FEHA exempts from its definition of “employee” any person who is employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. Thus, such individuals employed by a nonprofit sheltered workshop or rehabilitation facility, could presumably be discriminated against on the basis of their sex, religion, race, marital status, national origin, and more, without any protections under the law and without any consequence to the employer who would otherwise be held in violation of FEHA with respect to any other employees.
Accordingly, this bill eliminates the current exemption from the definition of employee for any “individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.” At the same time, this bill ensures that an employer who obtains a specified license or pays an individual less than minimum wage pursuant to a specified license from the California Industrial Welfare Commission is not legally liable for doing so under the anti-disability discrimination provisions of FEHA.
Comments
As stated by the author:
The Legislature has made great strides in expanding the protections and opportunities for most Californians under the Fair Employment and Housing Act. From extending the bases of potential discrimination to include age, gender, and religious dress, to extending the definition of employee to include unpaid interns and volunteers, previous efforts have sought to ensure that all California workers are fully protected in the workplace.
However, we have failed individuals with disabilities working in sheltered workshops and rehabilitation centers by not addressing the exemption of these employers from these laws. This has left individuals with disabilities working in these settings without the same recourse as others, should a case of discrimination or harassment arise in their workplace. While we recognize the need for certain nuances regarding the compensation paid to these individuals and hiring practices of the sheltered workshops and rehabilitation centers, it is simply unacceptable to leave this population of workers without these basic workplace protections. It is time to get rid of this exemption and protect all California workers as equally as possible.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
Disability Rights California (co-source)
State Council on Developmental Disabilities (co-source)
Arc and United Cerebral Palsy California Collaboration
California Foundation for Independent Living Centers
California Labor Federation
Disability Rights Education and Defense Fund
SEIU California
Special Needs Network
OPPOSITION: (Verified 6/22/16)
The Alliance Supporting People with Intellectual and Developmental Disabilities
California Disability Services Association
Pleasantview Industries
San Gabriel Valley Training Center
VIP, Inc.
Two individuals
ARGUMENTS IN SUPPORT: Disability Rights California, co-sponsor of this bill, writes “[c]urrently, under state law, ‘employee’ does not include any individual employed by a sheltered workshop or rehabilitation facility. This leaves people with disabilities employed in these settings no recourse for discrimination by their employer. [ . . . This ] bill would change the Government Code so that individuals with disabilities who are in sheltered work are considered ‘employees’ and are provided the same protections as other employees under California’s Federal Employment and Housing Act (FEHA). Reform is needed to strengthen rights and protections for sheltered workshop employees who work in highly-restrictive environments and currently are not afforded the same protections against discrimination as other employees.”
ARGUMENTS IN OPPOSITION: California Disability Services Association (CDSA) writes an oppose unless amended letter with respect to several issues, stating that “[b]ecause of some of the most basic requirements of FEHA, the process for placement and oversight of individuals in sheltered workshops, rehab facilities and day programs would be severely compromised” under the current version of the bill. While CDSA supports “making the law clear that ALL employees are entitled to FEHA protection from discrimination and harassment” they believe the bill imposes liability for non-discriminatory behavior that is essential to the employment arrangements for individuals covered by the bill. CDSA highlights specific areas of concern that demonstrate several “fundamental problems with the current version of the bill” as follows:
- FEHA prohibits employers from making any inquiry, either pre-employment or subsequent to hiring, as to whether an applicant or employee has a disability, or the nature or severity of that disability. It’s impossible for a workshop, facility, or program to function if it cannot even inquire as to the disability of an employee, or to utilize that information during the course of employment to make necessary adjustments to the employment arrangements.
- FEHA requires employers to engage in a timely, good faith, interactive process with an employee or applicant to determine reasonable accommodations. This bill fails to allow any inquiry into an employee’s disability, does not clarify which party is the “employer,” and does not contemplate the process by which an individual who cannot express their needs can be accommodated. One of the most important aspects of these placements is the role of the service provider responsible for the individual serves in working with outside entities to create employment opportunities for the individuals being placed. [On] its face, FEHA’s “interactive” requirements seem to prevent the service provider from serving that role.
- Since “day programs are not addressed in existing labor laws, their express addition to FEHA can be read to create an employer-employee relationship where one does not currently exist. [ . . . ] In addition, since FEHA makes individuals with various levels of disability personally liable for acts of harassment, converting the day program setting into an employment setting will inevitably promote litigation between day program participants. These program participants do have causes of action now for these types of incidents, but most are resolved by the day program providers by working with the individuals and families. [ . . . ]
CDSA urges the author to consider amending the bill “to clarify that individuals in these settings are protected from discrimination and harassment, while allowing for a comprehensive review of the potential unintended consequences” (by stakeholders convened by the Director of the Department of Fair Employment and Housing).
ASSEMBLY FLOOR: 69-0, 1/15/16
AYES: Achadjian, Alejo, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Irwin, Jones, Kim, Lackey, Levine, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rendon, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Williams, Wood, Atkins
NO VOTE RECORDED: Travis Allen, Bloom, Chávez, Eduardo Garcia, Gomez, Holden, Jones-Sawyer, Linder, Ridley-Thomas, Wilk
6/22/16 15:14:50
**** END ****
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
Bill No: AB 488 (Author:Gonzalez)
Version: March 31, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
Consultant: RD
SUBJECT
Employment discrimination
DESCRIPTION
This bill would eliminate the current exemption for any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility from the Fair Employment and Housing Act’s (FEHA) definition of “employee,” thus protecting those individuals from any form of employment discrimination on the basis of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other things. This bill would also provide, however, that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to a specified license from the Industrial Welfare Commission under existing law.
BACKGROUND
California law reflects a strong public policy protecting individuals against discrimination under numerous statutes, covering a variety of contexts. The Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act, for example, prohibit discrimination in employment, housing, public accommodation, and services provided by business establishments on the basis of specified personal characteristics, such as sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh Civil Rights Act). Others still, prohibit discrimination in public schools and in other state-funded programs or activities. (See Educational Equity at Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et seq.)
Of particular import to this bill, FEHA not only protects an employee from discrimination on protected bases, but it also entitles the employee to certain accommodations under the law based on, for example, their religious creed or physical or mental disability. Further, FEHA generally protects an employee against retaliation by the employer if the employee has opposed any of the employer’s discriminatory practices or because the employee has filed a complaint, testified, or assisted in a FEHA proceeding against the employer. That being said, under current law, FEHA exempts from its definition of “employee” any person who is employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. Thus, such individuals employed by a nonprofit sheltered workshop or rehabilitation facility, could presumably be discriminated against on the basis of their sex, religion, race, marital status, national origin, and more, without any protections under the law and without any consequence to the employer who would otherwise be held in violation of FEHA with respect to any other employees.
Accordingly, this bill would eliminate the current exemption from the definition of employee for any “individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.” Instead, this bill would expressly define “employee” to include an individual paid under a special license in a sheltered workshop (regardless of whether it is a nonprofit or for-profit workshop), rehabilitation facility, or day program, thus affording such individuals protections and rights under FEHA. At the same time, this bill would ensure that an employer who obtains a specified license or pays an individual less than minimum wage pursuant to a specified license from the California Industrial Welfare Commission is not legally liable for doing so under the anti-disability discrimination provisions of FEHA.
CHANGES TO EXISTING LAW
Existing federal law, Title VII of the Civil Rights Act, prohibits discrimination and harassment of employees. (42 U.S.C. Sec. 2000e et seq.)
Existing federal law, Section 14(c) of the federal Fair Labor Standards Act (FLSA), provides for the employment of certain individuals at wage rates below the minimum wage. Under this provision, individuals whose earnings or productive capacity is impaired by physical or mental disability for the work to be performed, including those related to age or injury, may be paid less than the federal minimum wage. Certificates issued by the Department of Labor to the employer are required for the employer to pay the special minimum wage. (29 U.S.C. Sec. 214(c).)
Existing law authorizes mentally or physically handicapped employees (and nonprofit sheltered workshops and rehabilitation facilities employing them) to be issued a license by the Industrial Welfare Commission authorizing a special subminimum wage. (Lab. Code Secs. 1191, 1191.5.)
Existing law, the Fair Employment and Housing Act (FEHA), prohibits, as a matter of public policy, discrimination and harassment in employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Gov. Code Sec. 12920, 12940 et seq.)
Existing law, FEHA, provides that it is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations, as specified, for an employer to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment, or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment, because of any of the above-listed protected bases. (Gov. Code Sec. 12940(a).)
Existing law, FEHA, further provides, however, that such disability discrimination protections do not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations. (Gov. Code Sec. 12940(a)(1).)
Existing law, FEHA, prohibits an employer or other entity to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee; however, an employer is not required to provide accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined. (Gov. Code Sec. 12940(m).)
Existing law, FEHA, provides that the term “employee” does not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. (Gov. Code Sec. 12926(c).)
This bill would, instead, provide that the term “employee” under FEHA includes an individual paid under a special license in a sheltered workshop, rehabilitation facility, or day program, but does not include any individual employed by his or her parents, spouse, or child.
This bill would provide that nothing under FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a specified license or paying an individual with a physical or mental disability less than minimum wage pursuant to specified laws, above.
COMMENT
1. Stated need for the bill
According to the author:
The Legislature has made great strides in expanding the protections and opportunities for most Californians under the Fair Employment and Housing Act. From extending the bases of potential discrimination to include age, gender, and religious dress, to extending the definition of employee to include unpaid interns and volunteers, previous efforts have sought to ensure that all California workers are fully protected in the workplace.
However, we have failed individuals with disabilities working in sheltered workshops and rehabilitation centers by not addressing the exemption of these employers from these laws. This has left individuals with disabilities working in these settings without the same recourse as others, should a case of discrimination or harassment arise in their workplace. While we recognize the need for certain nuances regarding the compensation paid to these individuals and hiring practices of the sheltered workshops and rehabilitation centers, it is simply unacceptable to leave this population of workers without these basic workplace protections. It is time to get rid of this exemption and protect all California workers as equally as possible.
Disability Rights California, co-sponsor of this bill, writes “[c]urrently, under state law, ‘employee’ does not include any individual employed by a sheltered workshop or rehabilitation facility. This leaves people with disabilities employed in these settings no recourse for discrimination by their employer. [ . . . This ] bill would change the Government Code so that individuals with disabilities who are in sheltered work are considered ‘employees’ and are provided the same protections as other employees under California’s Federal Employment and Housing Act (FEHA). Reform is needed to strengthen rights and protections for sheltered workshop employees who work in highly-restrictive environments and currently are not afforded the same protections against discrimination as other employees.”
2. Sheltered workshops
The term “sheltered workshop,” which is central to this bill, refers to a supervised workplace for physically or mentally disabled or handicapped adults. These are organizations or environments that employ people with disabilities at subminimum wages. State law specifically recognizes the use of sheltered workshops and programs that pay less than minimum wage, as long as the employee or the workshop is licensed by the State. According to the Department of Industrial Relations, sheltered workshop licenses can be issued for programs operated by nonprofit organizations. (See Lab. Code Sec. 1191.5) A license authorizing payment of a special minimum wage to a disabled worker can also be issued to for-profit business establishments and disabled individuals. Any special minimum wage paid to disabled workers must be commensurate with their productivity and wage compared with those of experienced workers who are not disabled but perform essentially the same type, quality, and quantity of work in the same vicinity as the disabled worker. The license has a specific duration and minimum wage that must be paid to those employed in each program. (See Lab. Code Sec. 1191.) Likewise, federal law, Section 14c of the Fair Labor Standards Act (FLSA), provides for the employment of certain disabled individuals at wage rates below the minimum wage as well. These programs and the authorization of subminimum wage within such certificated programs are not without controversy, even within the disability community. “Some believe this program may keep disabled employees in isolated workshop environments and often allows them to be paid less than the federal minimum wage. Others believe that some form of financial support is essential to creating and maintaining jobs for people with disabilities.”
Indeed, in recent years, there has been a push to move away from isolated programs employing primarily disabled individuals, and towards “integrated employment,” where disabled individuals work in integrated settings and can earn a livable wage.[1] In 2014, President Obama signed the Workforce Innovation and Opportunity Act (WIOA), placing a number of limitations on placements at sheltered workshops. Under WIOA, youth with disabilities (under the age of 24) will no longer be allowed to work for less than the federal minimum wage unless they are provided pre-employment transition services and attempt vocational rehabilitation services first. WIOA also requires state vocational rehabilitation agencies to allocate at least 15 percent of their federal funds towards such transition services. (U.S. Department of Labor, WIOA Overview <https://www.doleta.gov/WIOA/Overview.cfm> [as of May 29, 2016].)
In 2013, joining over a dozen other states, California passed legislation declaring a state “Employment First” policy that opportunities for integrated, competitive employment be given the highest priority for working age individuals with developmental disabilities, regardless of the severity of their disabilities. That legislation, AB 1041 (Chesbro, Ch. 677, Stats. 2013), in part required regional centers to provide consumers aged 16 and older with information about the Employment First Policy, options for integrated competitive employment, and services and supports, including postsecondary education, that are available to enable the consumer to transition from school to work, and to obtain and keep an integrated competitive job. Since then, the California Department of Rehabilitation (DOR), the Department of Developmental Services (DDS), and Department of Education (CDE) have entered into an agreement consistent with this “Employment First” policy and other laws to make employment in an integrated setting, at a competitive wage, for individuals with intellectual disabilities and developmental disabilities (ID/DD) its highest priority. These departments, in conjunction with Disability Rights California, are to meet with stakeholders to identify and recommend changes in policies, practices, statutes, or regulations in order to improve integrated, competitive employment outcomes for these individuals. (See California Health and Human Services Agency, California Competitive Integrated Employment (CIE) Blueprint for Change <http://www.chhs.ca.gov/Pages/Competitive-Integrated-Employment-(CIE).aspx> [as of May 29, 2016].)
Of particular concern to the proponents of this bill, is that persons with disabilities working in such sheltered workshops do not have the protections of the state’s anti-employment discrimination statutes.
3. Bill would protect individuals in sheltered workforces or rehabilitation programs from discrimination on any of the protected categories under FEHA
The Fair Employment and Housing Act (FEHA) prohibits discrimination against an employee or employment applicant on the basis of, among other things, sex, national origin, ancestry, religious creed, and physical or mental disability. (Gov. Code Sec. 12940(a).) FEHA protections also extend to the right of accommodation and protection against retaliation. Specifically, FEHA requires an employer to provide reasonable religious and disability accommodations to an employee and provides retaliation protection for an employee who opposes any discriminatory practices of the employer or who files a complaint, testifies, or assists in a FEHA action. (Gov. Code Sec. 12940(l), (m); Gov. Code Sec. 12940(h).)
Currently, however, because FEHA’s definition of the term “employee” specifically excludes any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility, such protections do not extend to a person who works in a sheltered workshop or rehabilitation facility. (Gov. Code Sec. 12926(c).) Thus, currently, if an individual employed by a sheltered workshop is discriminated against on the basis of their sexual orientation or refused accommodations for their religious practices, they would have no protections or rights under FEHA. While such language was first added in 1973 (AB 1126 (Dunlap, Ch. 1189, Stats. 1973)), presumably to encourage the use of sheltered workshops and rehabilitation facilities, such an exemption is arguably outdated and inconsistent with this state’s strong public policies against discrimination in all contexts, from employment to education, and business to state-funded programs. (See Background.) Such an exemption is arguably also unnecessary, given that state law can ensure that participation by licensed employers in sheltered workshops does not constitute a violation of FEHA on the basis of disability, while still affording disabled individuals working in these workshops protection from other forms of discrimination, such as sex, sexual orientation, or religious discrimination, among others. Indeed, as amended March 31, 2016, this bill would expressly protect employers who are authorized under existing law to pay subminimum wage for these purposes from being legally liable for discrimination on the basis of disability under FEHA. (See Comment 4.)
In support of the bill, the California Labor Federation writes that “[t]he ‘sheltered workshops’ concepts dates back to the 1930s, when misinformed attitudes regarding disabled workers led to questionable and exploitative policies such as minimum wage exemptions that somehow survive to this day. In some cases, these workers earn less than a dollar an hour, and the process by which workers are declared ‘less productive’ is entirely unregulated and ripe for abuse. This FEHA exemption further harms such workers by stripping them of basic protections against discrimination and retaliation, robbing these individuals of dignity and safety on the job while their employers escape consequences for even blatant harassment. At minimum, disabled workers deserve at least the same FEHA protections as other workers. AB 488 [ . . . ] deletes the unconscionable FEHA exemption that leaves our most vulnerable workers exposed to blatant mistreatment. With this change, disabled Californians will finally win the basic right to a discrimination and harassment-free workplace.”
Staff notes that currently, the definition of employee under FEHA is defined broadly by simply listing what the definition does not include. Specifically, FEHA defines “employee” to not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. (Gov. Code Sec. 12926(c).) This bill would now define “employee” to affirmatively include an individual paid under a special license in a sheltered workshop, rehabilitation facility, or day program, but to exclude any individual employed by his or her parents, spouse, or child. If the desire is to remove the existing exemption of individuals “employed under a special license in a nonprofit sheltered workshop or rehabilitation facility,” such language should simply be removed from the definition entirely. Otherwise, this bill, as currently drafted, might be misinterpreted to mean that employee includes only individuals “paid under a special license in a sheltered workshop, rehabilitation facility, or day program.”
The following amendment would remove any reference to sheltered workshop, rehabilitation, or day program employees entirely from the definition of “employee” for FEHA, thus ensuring that they would be treated like any other employee, which hereinafter would simply be defined to exclude individuals employed by his or her parents, spouse, or child.
Suggested amendment:
On page 2, lines 15-17, strike “includes an individual paid under a special license in a sheltered workshop, rehabilitation facility, or day program but”
4. Exemption for employers paying subminimum wage pursuant to specified law
Separate from FEHA, which protects individuals, including individuals with disabilities, from discrimination on the basis of protected characteristics in employment, California law, Sections 1191 and 1191.5 of the Labor Code provide authorization for employers to pay subminimum wage to persons with disabilities upon obtaining a specified license from the Industrial Welfare Commission, which generally holds a duty to ascertain the wages paid to all employees in this state, to ascertain the hours and conditions of labor and employment in the various occupations, trades, and industries in which employees are employed in this state, and to investigate the health, safety, and welfare of those employees.
Specifically, Section 1191 provides that for “any occupation in which a minimum wage has been established, the commission may issue to an employee who is mentally or physically handicapped, or both, a special license authorizing the employment of the licensee for a period not to exceed one year from date of issue, at a wage less than the legal minimum wage. The commission shall fix a special minimum wage for the licensee. Such license may be renewed on a yearly basis.” Similarly, Section 1191.5 provides that, notwithstanding the aforementioned provision, for nonprofit sheltered workshops, “the commission may issue a special license to a nonprofit organization such as a sheltered workshop or rehabilitation facility to permit the employment of employees who have been determined by the commission to meet the requirements in Section 1191 without requiring individual licenses of such employees.” Again, this section also requires the commission to fix a special minimum wage for such employees and the special license for the nonprofit corporation must be renewed on a yearly basis, or more frequently as determined by the commission.
Under FEHA, it is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulation, as specified, for an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Gov. Code Sec. 12940(a).) By eliminating the exemption of individuals employed under a special license in a nonprofit sheltered workshop or rehabilitation facility from the definition of “employees” for purposes of FEHA, this bill could have inadvertently subjected employers who hold a valid license under Labor Code Sections 1191 or 1191.5 to liability for paying specified individuals with disabilities subminimum wage. Accordingly, the author amended the bill to also expressly specify that nothing in FEHA relating to discrimination on account of disability shall subject an employer to legal liability for obtaining a license pursuant to Section 1191.5 of the Labor Code or paying an individual with a physical or mental disability less than minimum wage pursuant to either Section 1191 or Section 1191.5 of the Labor Code.
5. Oppose unless amended
The California Disability Services Association (CDSA) writes an oppose unless amended letter with respect to several issues, stating that “[b]ecause of some of the most basic requirements of FEHA, the process for placement and oversight of individuals in sheltered workshops, rehab facilities and day programs would be severely compromised” under the current version of the bill. While CDSA supports “making the law clear that ALL employees are entitled to FEHA protection from discrimination and harassment” they believe the bill would impose liability for non-discriminatory behavior that is essential to the employment arrangements for individuals covered by the bill. CDSA highlights specific areas of concern that demonstrate several “fundamental problems with the current version of the bill” as follows:
- FEHA prohibits employers from making any inquiry, either pre-employment or subsequent to hiring, as to whether an applicant or employee has a disability, or the nature or severity of that disability. It’s impossible for a workshop, facility, or program to function if it cannot even inquire as to the disability of an employee, or to utilize that information during the course of employment to make necessary adjustments to the employment arrangements.
- FEHA requires employers to engage in a timely, good faith, interactive process with an employee or applicant to determine reasonable accommodations. This bill fails to allow any inquiry into an employee’s disability, does not clarify which party is the “employer,” and does not contemplate the process by which an individual who cannot express their needs can be accommodated. One of the most important aspects of these placements is the role of the service provider responsible for the individual serves in working with outside entities to create employment opportunities for the individuals being placed. [On] its face, FEHA’s “interactive” requirements seem to prevent the service provider from serving that role.
- Since “day programs are not addressed in existing labor laws, their express addition to FEHA can be read to create an employer-employee relationship where one does not currently exist. [ . . . ] In addition, since FEHA makes individuals with various levels of disability personally liable for acts of harassment, converting the day program setting into an employment setting will inevitably promote litigation between day program participants. These program participants do have causes of action now for these types of incidents, but most are resolved by the day program providers by working with the individuals and families. [ . . . ]
CDSA urges the author to consider amending the bill “to clarify that individuals in these settings are protected from discrimination and harassment, while allowing for a comprehensive review of the potential unintended consequences” (by stakeholders convened by the Director of the Department of Fair Employment and Housing).
Staff notes that the suggested amendment in Comment 3, above, should help address concerns specific to day programs. Additionally, in response to CDSA’s question as to who is the employer, co-sponsor Disability Rights California (DRC) writes that “in the sheltered workshop [ . . . ] setting, the provider is the employer,” stressing that there is no private business employing the client in a sheltered workshop. Moreover, as to the concern that these workshops and facilities would not be able to function and meet the needs of their employees (including for purposes of reasonable accommodations) if they cannot inquire as to the person’s disabilities, DRC responds that “State law allows for differences in treatment of people with disabilities under the requirement that employers provide reasonable accommodations to people with disabilities. Based on the law, the analysis of how to do so is individualized based on the employee’s and the employer’s needs.” DRC also argues that “[t]he provider can ask questions under FEHA pre-employment, after making a job offer, that are job related and consistent with business necessity. AB 488 could also be clarified to indicate that sheltered workshops [ . . . ] could ask disability-related questions necessary to employ clients.”
Support: Arc and United Cerebral Palsy California Collaboration; California Labor Federation; SEIU California; Special Needs Network
Opposition: California Disability Services Association
HISTORY
Source: Disability Rights California; State Council on Developmental Disabilities
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote:
Assembly Floor (Ayes 69, Noes 0)
Assembly Labor and Employment Committee (Ayes 7, Noes 0)
**************
“Integrated work” under state law, the Lanterman Developmental Disabilities Services Act, is defined as the engagement of an employee with a disability in work in a setting typically found in the community wherein the employee interacts with individuals without disabilities other than those who are providing services to those individuals, to the same extent that individuals without disabilities in comparable positions interact with other persons. (Welf. & Inst. Code Sec. 4851(o).) ↑
ASSEMBLY THIRD READING
ATR Bill Id:AB 488
Author:(Gonzalez)
As Amended Ver:January 4, 2016
Majority vote
Committee | Votes | Ayes | Noes |
Labor | 7-0 | Roger Hernández, Harper, Chu, Low, McCarty, Patterson, Thurmond |
SUMMARY: Eliminates an exemption to the Fair Employment and Housing Act (FEHA) for individuals "employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
EXISTING LAW:
- Prohibits employment discrimination and harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against. (Government Code Section 12940 et seq.)
- Provides that "employee" for purposes of these protections does not include any individual employed by his or her parents, spouse, or child, "or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
FISCAL EFFECT: None. This bill is currently keyed non-fiscal by Legislative Counsel.
COMMENTS: The California Fair Employment and Housing Act (FEHA) prohibits employment discrimination and harassment of individuals on the basis of specified enumerated categories - race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
FEHA defines an "employer" as any person regularly employing five or more persons, but does not include a religious association or corporation not organized for private profit.
FEHA also excludes from the definition of "employee" any individual employed by his or her parents, spouse or child, or "any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
According to the author, workers in sheltered workshops and rehabilitation centers are currently excluded from the protections against discrimination and sexual harassment offered by California’s Fair Employment and Housing Act. This leaves workers with disabilities who are employed in these settings no recourse for discrimination based on characteristics like race, religion or gender identity by their employer.
The author notes that AB 1443 (Skinner) from 2014 extended FEHA's protections to cover unpaid interns and volunteers, suggesting that these workplace protections are appropriate even for those making less than minimum wage or in a program for a limited time to gain experience.
Also, the author notes that, while California has been moving towards competitive and integrated job placements for individuals with disabilities, this does not take away from the fact that it is important for workers in all settings to have legal protections against and recourse from discrimination and harassment.
The sponsor of this bill, Disability Rights California, states that it would change the Government Code so that individuals with disabilities who are in sheltered work are considered "employees" and are provided the same protections as other employees under FEHA. They argue that reform is needed to strengthen rights and protections for sheltered workshop employees who work in highly-restrictive environments and currently are not afforded the same protections against discrimination as other employees.
There is no opposition on file.
Analysis Prepared by: Benjamin Ebbink / L. & E. / (916) 319-2091 FN: 0002540
Date of Hearing: January 6, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
ABPCA Bill Id:AB 488 (
Author:Gonzalez) – As Amended Ver:January 4, 2016
SUBJECT: Employment discrimination
SUMMARY: Eliminates an exemption to the Fair Employment and Housing Act (FEHA) for individuals "employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
EXISTING LAW:
- Prohibits employment discrimination and harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against. (Government Code section 12940 et seq.)
- Provides that "employee" for purposes of these protections does not include any individual employed by his or her parents, spouse, or child, "or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
FISCAL EFFECT: None. This bill is currently keyed non-fiscal by Legislative Counsel.
COMMENTS: The California Fair Employment and Housing Act (FEHA) prohibits employment discrimination and harassment of individuals on the basis of specified enumerated categories - race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
FEHA defines an "employer" as any person regularly employing five or more persons, but does not include a religious association or corporation not organized for private profit.
FEHA also excludes from the definition of "employee" any individual employed by his or her parents, spouse or child, or "any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."
What is a "sheltered workshop?"
Section 14(c) of the federal Fair Labor Standards Act (FLSA) provides for the employment of certain individuals at wage rates below the minimum wage. Under this provision, individuals whose earnings or productive capacity is impaired by physical or mental disability for the work to be performed, including those related to age or injury, may be paid less than the federal minimum wage. Certificates issued by the Department of Labor to the employer are required for the employer to pay the special minimum wage.
Employers that have obtained such special certificates to pay a subminimum wage to disabled workers have traditionally been referred to as "sheltered workshops." However, the term "sheltered workshop" is seen by some as offensive and obsolete, and has become generally disfavored. Unfortunately, many statutes, including FEHA, continue to use the term "sheltered workshop."
Related Provisions of California Law
The California Labor Code contains two specific provisions related to the payment of subminimum wage to individuals with disabilities:
Labor Code Section 1191 provides as follows:
"For any occupation in which a minimum wage has been established, the commission may issue to an employee who is mentally or physically handicapped, or both, a special license authorizing the employment of the licensee for a period not to exceed one year from date of issue, at a wage less than the legal minimum wage. The commission shall fix a special minimum wage for the licensee. Such license may be renewed on a yearly basis."
Labor Code Section 1191.5 provides as follows:
"Notwithstanding the provisions of Section 1191, the commission may issue a special license to a nonprofit organization such as a sheltered workshop or rehabilitation facility to permit the employment of employees who have been determined by the commission to meet the requirements in Section 1191 without requiring individual licenses of such employees. The commission shall fix a special minimum wage for such employees. The special license for the nonprofit corporation shall be renewed on a yearly basis, or more frequently as determined by the commission."
Additional Background on Section 14(c) of the FLSA
A 2005 paper prepared[1] by the Congressional Research Service describes the history of the FLSA Section 14(c) program as follows:
"Under Section 14(c) of the Fair Labor Standards Act (FLSA), persons with various physical or mental disabilities (or persons who have vision impairment or are blind) can be employed at rates below the otherwise applicable federal minimum wage. Under certificates issued by the Secretary of Labor, their wages are set at a level commensurate with their productivity and reflective of rates found to be prevailing in the locality for essentially “the same type, quality, and quantity of work.” For these workers, under current law, there is no other statutory wage rate.
The origins of Section 14(c) treatment of persons with disabilities go back at least to the National Industrial Recovery Act (NIRA) of 1933-1935. Under the NIRA, a productivity-based sub-minimum wage, arranged through a system of certificates, was established for persons with disabilities. In competitive industry, such workers were payable at 75% of the industry minimum. In sheltered workshops, there was no wage floor. The NIRA was declared unconstitutional in 1935.
With passage of the FLSA in 1938, the certification system was reestablished under Section 14 of the Act. No statutory wage floor was set for persons with disabilities, though, administratively, minimum wages for the disabled in competitive industry came to be set at 75% of the federal/FLSA minimum. In the sheltered workshops, the floor was productivity-based with no lower limit. Under the 1966 FLSA amendments, the system was modified. The rate for persons with disabilities was set in statute at not less than 50% of the FLSA minimum, both in competitive industry and in workshops, except that in separate work activities centers where employment was largely therapeutic and its economic content inconsequential there was no statutory floor.
Charges of inequities followed — together with a rapid expansion of employment in the work activities centers. Some suggested that workers with vision impairment should not, on that basis alone, be included under the Section 14 reduced wage option. A number of studies subsequently reviewed operation of the system.
Congressional hearings on the issue were conducted repeatedly through the years.
In 1986, Section 14(c) was amended to remove the separation of workshops and work activities centers — and to eliminate any statutory wage floor for persons with disabilities in certificated employment. In theory, such workers were to be paid a wage commensurate with their productivity. In 1994, further hearings were held and it was asserted that the entire system of productivity-based sub-minimum wage rates was inequitable and unworkable. The law, however, supported by employers of workers with disabilities, was not altered."
Controversy Surrounding FLSA Section 14(c)
For many years, the special minimum wage certification program has generated heated debate on both sides of the issue. One commentator[2] described the nature of the debate as follows:
"There is disagreement among many factions of the disability community regarding the efficacy and integrity of the Section 14(c) wage certificate program of the Fair Labor Standards Act (FSLA) which allows employers to pay workers with disabilities a special minimum wage based on their productivity. Some believe this program may keep disabled employees in isolated workshop environments and often allows them to be paid less than the federal minimum wage. Others believe that some form of financial support is essential to creating and maintaining jobs for people with disabilities. The initial legislation was passed to give individuals with disabilities a chance to work when the perspective on disability was very different than it is today. As views have changed, this program seems to no longer be fully aligned with the national disability agenda. Although Section 14(c) gives individuals with disabilities the experience of working, it allows them to be paid less than prevailing wage, and in some instances isolates them and fails to integrate them fully with their non-disabled peers. Federal legislation was introduced that would repeal Section 14(c) and prohibit the payment of special minimum wages. While this legislation will potentially leave hundreds of thousands of workers without employment, opponents argue that special minimum wage certificates are antithetical to current national disability policy promoting integration and financial independence for individuals with disabilities."
Recent Movement Towards "Integrated Employment"
In light of some of the controversy associated with payment of a subminimum wage discussed above, in recent years several states have announced initiatives to transition from "sheltered workshops" to focus more on "integrated employment." This effort involves preparing people with disabilities to work in integrated settings (as opposed to isolated workshops employing primarily disabled individuals) earning a livable wage. This trend is sometimes referred to as "competitive integrated employment."
In January 2015, the California Department of Rehabilitation, the Department of Developmental Services, and Department of Education, in collaboration with Disability Rights California, announced plans to join other states in transforming its provision of employment services to people with intellectual and developmental disabilities. The agencies announced the development of a blueprint that among other things, states that employment in integrated, competitive settings is preferred for individuals with disabilities, and calls for the establishment of measurable goals and benchmarks.
In making this move, California joined several other states, including New York, Massachusetts, Pennsylvania and Rhode Island, which have announced efforts to transition from "sheltered workshops" to "integrated employment."
Change in this area is also being directed by the federal government. Specifically, the Workforce Innovation and Opportunity Act (WIOA), which was signed by President Obama in 2014, placed a number of limitations on placements at sheltered workshops. Under the law, individuals with disabilities age 24 and younger will no longer be allowed to work for less than the federal minimum wage unless they first are provided pre-employment transition services and attempt vocational rehabilitation services first. WIOA also requires state vocational rehabilitation agencies to work with education providers to provide transition services and requires the agencies to allocate at least 15 percent of their federal funds towards such transition efforts.
Change Proposed by This Bill
As discussed above, FEHA currently contains an exemption which excludes employees in "sheltered workshops" from the provisions of the law. This bill seeks to eliminate that exemption and provide that such employees are covered under the employment discrimination provisions of FEHA.
ARGUMENTS IN SUPPORT
According to the author, workers in sheltered workshops and rehabilitation centers are currently excluded from the protections against discrimination and sexual harassment offered by California’s Fair Employment and Housing Act. This leaves workers with disabilities who are employed in these settings no recourse for discrimination based on characteristics like race, religion or gender identity by their employer.
The author notes that AB 1443 (Skinner) from 2014 extended FEHA’s protections to cover unpaid interns and volunteers, suggesting that these workplace protections are appropriate even for those making less than minimum wage or in a program for a limited time to gain experience.
Also, the author notes that, while California has been moving towards competitive and integrated job placements for individuals with disabilities, this does not take away from the fact that it is important for workers in all settings to have legal protections against and recourse from discrimination and harassment.
The sponsor of this bill, Disability Rights California, states that it would change the Government Code so that individuals with disabilities who are in sheltered work are considered “employees” and are provided the same protections as other employees under FEHA. They argue that reform is needed to strengthen rights and protections for sheltered workshop employees who work in highly-restrictive environments and currently are not afforded the same protections against discrimination as other employees.
REGISTERED SUPPORT / OPPOSITION:
Support
Disability Rights California (sponsor)
State Council on Developmental Disabilities
Opposition
None on file.
Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091
Whittaker, William G. "Treatment of Workers with Disabilities Under Section 14(c) of the Fair Labor Standards Act." Congressional Research Service. (February 9, 2005). ↑
Nye, Gretchen. "The Uncertain Future of Section 14(c) of the Fair Labor Standards Act." The George Washington University School of Public Health and Health Services, Department of Health Policy. (June 2013). ↑
Discussed in Hearing
55SEC
Assembly Floor
3MIN
Senate Floor
29MIN
Senate Standing Committee on Judiciary
1MIN
Assembly Floor
Bill Author
Bill Co-Author(s):
