Bill Text: CA AB1740 | 2011-2012 | Regular Session | Amended
Bill Title: Employment protections: victims of domestic violence,
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-05-25 - In committee: Set, second hearing. Held under submission. [AB1740 Detail]
Download: California-2011-AB1740-Amended.html
BILL NUMBER: AB 1740 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2012
INTRODUCED BY Assembly Member V. Manuel Pérez
FEBRUARY 17, 2012
An act to amend Section 32228 of the Education Code, to
amend Section 354.5 of the Elections Code, to amend Sections 11135,
12920, 12921, 12926, 12926.1, 12926.2, 12928, 12931, 12940, 12944,
and 12951 of, and to add Section 12945.6 to, the Government Code, to
amend Section 98.6 of the Labor Code, to amend Section 868.8 of the
Penal Code, and to amend Section 4900 of the Welfare and Institutions
Code Sections 230 and 230.1 of the Labor Code ,
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1740, as amended, V. Manuel Pérez. Employment
discrimination protections : victims of domestic
violence, sexual assault, or stalking.
(1) Existing law, the California Fair Employment and Housing Act
(FEHA), protects and safeguards the right and opportunity of all
persons to seek, obtain, and hold employment without discrimination
or abridgment on account of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, gender, gender identity, age, or
sexual orientation.
This bill would include status as a victim of domestic violence,
sexual assault, or stalking as an additional basis upon which the
right to seek, obtain, and hold employment cannot be denied under
FEHA. By expanding the bases upon which discrimination is prohibited
under FEHA, this bill would also expand the bases upon which
discrimination is prohibited under other antidiscrimination
provisions that prohibit discrimination on the same bases as provided
for in FEHA. Other antidiscrimination provisions include provisions
that make willful discrimination in a recruitment or apprenticeship
program on those bases a misdemeanor. By adding unemployment status
to the list of characteristics listed in FEHA, this bill would expand
the bases upon which this crime applies, thereby imposing a
state-mandated local program.
The bill would also provide for specific protections under FEHA
applicable to victims of actual or threatened domestic violence,
sexual assault, or stalking.
(1) Existing law provides protections to victims of domestic
violence and sexual assault and prohibits employers from taking
adverse employment action against victims of domestic violence and
sexual assault who take time off from work to attend to issues
arising as a result of the domestic violence or sexual assault, as
long as the employee complies with certain conditions. Existing law
provides that employers who violate these provisions are guilty of a
misdemeanor.
This bill would extend these protections to victims of stalking.
The bill would also prohibit an employer from discharging or in any
manner discriminating or retaliating against an employee because of
the employee's known status as a victim of domestic violence, sexual
assault, or stalking, and require the employer to provide reasonable
accommodations for such a victim. Because a violation of the bill's
requirements under certain circumstances would be a crime, the bill
would impose a state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 32228 of the Education Code
is amended to read:
32228. (a) It is the intent of the Legislature that public
schools serving pupils in any of grades 8 to 12, inclusive, have
access to supplemental resources to establish programs and strategies
that promote school safety and emphasize violence prevention among
children and youth in the public schools.
(b) It is also the intent of the Legislature that public schools
have access to supplemental resources to combat bias on the basis of
race, color, religion, ancestry, national origin, disability, gender,
gender identity, gender expression, or sexual orientation, as
defined in Section 12926 of the Government Code, and to prevent and
respond to acts of hate violence and bias-related incidents. Sexual
orientation shall not include pedophilia.
(c) It is further the intent of the Legislature that schoolsites
receiving funds pursuant to this article accomplish all of the
following goals:
(1) Teach pupils techniques for resolving conflicts without
violence.
(2) Train school staff and administrators to support and promote
conflict resolution and mediation techniques for resolving conflicts
between and among pupils.
(3) Reduce incidents of violence at the schoolsite with an
emphasis on prevention and early detection.
(4) Provide age-appropriate instruction in domestic violence
prevention, dating violence prevention, and interpersonal violence
prevention.
SEC. 2. Section 354.5 of the Elections Code is
amended to read:
354.5. (a) "Signature" includes either of the following:
(1) A person's mark if the name of the person affixing the mark is
written near the mark by a witness over 18 years of age designated
by the person and the designee subscribes his or her own name as a
witness thereto. For purposes of this paragraph, a signature stamp
may be used as a mark, provided that the authorized user complies
with the provisions of this paragraph.
(2) An impression made by the use of a signature stamp pursuant to
the requirements specified in subdivision (c).
(b) A mark attested as provided in paragraph (1) of subdivision
(a), or an impression made by a signature stamp as provided in
paragraph (2) of subdivision (a), may serve as a signature for any
purpose specified in this code, including a sworn statement.
(c) An authorized user of a signature stamp may use it to affix a
signature to a document or writing any time that a signature is
required by this code, provided that all of the following conditions,
as applicable, are met:
(1) A signature stamp used to obtain a ballot or vote by mail
ballot in any local, state, or federal election shall be used only by
the authorized user of that signature stamp.
(2) A signature stamp shall be affixed by the authorized user in
the presence of the Secretary of State, his or her designee, the
local elections official, or his or her designee, to obtain a ballot,
in any local, state, or federal election unless the authorized user
of the signature stamp votes by vote by mail ballot. If the owner of
a signature stamp votes by vote by mail ballot, he or she shall affix
the signature stamp on the identification envelope in accordance
with Section 3019.
(d) A signature affixed with a signature stamp by an authorized
user in accordance with this section shall be treated in the same
manner as a signature made in writing.
(e) A registered voter or any person who is eligible to vote, who
qualifies as an authorized user pursuant to paragraph (1) of
subdivision (g), may use a signature stamp only after he or she first
submits his or her affidavit of registration or a new affidavit of
registration, whichever is applicable, in the presence of a county
elections official, using the signature stamp to sign the affidavit.
(f) The Secretary of State shall report to the Legislature not
later than January 1, 2009, regarding the use of signature stamps
during the 2008 elections.
(g) The following definitions apply for purposes of this section:
(1) "Authorized user" means either of the following:
(A) A person with a disability who, by reason of that disability,
is unable to write and who owns a signature stamp.
(B) A person using the signature stamp on behalf of the owner of
the stamp with the owner's express consent and in the presence of the
owner.
(2) "Disability" means a medical condition, mental disability, or
physical disability, as those terms are defined in Section 12926 of
the Government Code.
(3) "Signature stamp" means a stamp that contains the impression
of any of the following:
(A) The actual signature of a person with a disability.
(B) A mark or symbol that is adopted by the person with the
disability.
(C) A signature of the name of a person with a disability that is
made by another person and is adopted by the person with the
disability.
SEC. 3. Section 11135 of the Government Code is
amended to read:
11135. (a) No person in the State of California shall, on the
basis of race, national origin, ethnic group identification,
religion, age, sex, sexual orientation, color, genetic information,
or disability, be unlawfully denied full and equal access to the
benefits of, or be unlawfully subjected to discrimination under, any
program or activity that is conducted, operated, or administered by
the state or by any state agency, is funded directly by the state, or
receives any financial assistance from the state. Notwithstanding
Section 11000, this section applies to the California State
University.
(b) With respect to discrimination on the basis of disability,
programs and activities subject to subdivision (a) shall meet the
protections and prohibitions contained in Section 202 of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and
the federal rules and regulations adopted in implementation thereof,
except that if the laws of this state prescribe stronger protections
and prohibitions, the programs and activities subject to subdivision
(a) shall be subject to the stronger protections and prohibitions.
(c) (1) As used in this section, "disability" means any mental or
physical disability, as defined in Section 12926.
(2) The Legislature finds and declares that the amendments made to
this act are declarative of existing law. The Legislature further
finds and declares that in enacting Senate Bill 105 of the 2001-02
Regular Session (Chapter 1102 of the Statutes of 2002), it was the
intention of the Legislature to apply subdivision (d) to the
California State University in the same manner that subdivisions (a),
(b), and (c) already applied to the California State University,
notwithstanding Section 11000. In clarifying that the California
State University is subject to paragraph (2) of subdivision (d), it
is not the intention of the Legislature to increase the cost of
developing or procuring electronic and information technology. The
California State University shall, however, in determining the cost
of developing or procuring electronic or information technology,
consider whether technology that meets the standards applicable
pursuant to paragraph (2) of subdivision (d) will reduce the
long-term cost incurred by the California State University in
providing access or accommodations to future users of this technology
who are persons with disabilities, as required by existing law,
including this section, Title II of the federal Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12101 and following), and
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sec. 794).
(d) (1) The Legislature finds and declares that the ability to
utilize electronic or information technology is often an essential
function for successful employment in the current work world.
(2) In order to improve accessibility of existing technology, and
therefore increase the successful employment of individuals with
disabilities, particularly blind and visually impaired and deaf and
hard-of-hearing persons, state governmental entities, in developing,
procuring, maintaining, or using electronic or information
technology, either indirectly or through the use of state funds by
other entities, shall comply with the accessibility requirements of
Section 508 of the federal Rehabilitation Act of 1973, as amended (29
U.S.C. Sec. 794d), and regulations implementing that act as set
forth in Part 1194 of Title 36 of the Federal Code of Regulations.
(3) Any entity that contracts with a state or local entity subject
to this section for the provision of electronic or information
technology or for the provision of related services shall agree to
respond to, and resolve any complaint regarding accessibility of its
products or services that is brought to the attention of the entity.
(e) As used in this section, "sex" and "sexual orientation" have
the same meanings as those terms are defined in Section 12926.
(f) As used in this section, "race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color, or
disability" includes a perception that a 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.
(g) As used in this section, "genetic information" has the same
definition as in paragraph (2) of subdivision (e) of Section 51 of
the Civil Code.
SEC. 4. Section 12920 of the Government Code is
amended to read:
12920. (a) It is hereby declared as the public policy of this
state that it is necessary to protect and safeguard the right and
opportunity of all persons to seek, obtain, and hold employment
without discrimination or abridgment on account 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 status as a victim of domestic violence, sexual
assault, or stalking.
(b) It is recognized that the practice of denying employment
opportunity and discriminating in the terms of employment for the
reasons described in subdivision (a) foments domestic strife and
unrest, deprives the state of the fullest utilization of its
capacities for development and advancement, and substantially and
adversely affects the interests of employees, employers, and the
public in general.
(c) Further, the practice of discrimination because of race,
color, religion, sex, gender, gender identity, gender expression,
sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability, or genetic information
in housing accommodations is declared to be against public policy.
(d) It is the purpose of this part to provide effective remedies
that will eliminate these discriminatory practices.
(e) This part shall be deemed an exercise of the police power of
the state for the protection of the welfare, health, and peace of the
people of this state.
SEC. 5. Section 12921 of the Government Code is
amended to read:
12921. (a) The opportunity to seek, obtain, and hold employment
without discrimination 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
status as a victim of domestic violence, sexual assault, or stalking
is hereby recognized as, and declared to be, a civil right.
(b) The opportunity to seek, obtain, and hold housing without
discrimination because of race, color, religion, sex, gender, gender
identity, gender expression, sexual orientation, marital status,
national origin, ancestry, familial status, source of income,
disability, genetic information, or any other basis prohibited by
Section 51 of the Civil Code is hereby recognized as, and declared to
be, a civil right.
SEC. 6. Section 12926 of the Government Code is
amended to read:
12926. 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) "Domestic violence" means a type of abuse set forth in Section
6211 of the Family Code.
(d) "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.
(e) "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.
(f) "Employment agency" includes any person undertaking for
compensation to procure employees or opportunities to work.
(g) "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 employer's 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.
(h) (1) "Genetic information" means, with respect to any
individual, information about any of the following:
(A) The individual's 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.
(i) "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.
(j) "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.
(k) "Mental disability" includes, but is not limited to, all of
the following:
(1) Having any mental or psychological disorder or condition, such
as mental retardation, 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.
(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 status
as a victim of domestic violence, sexual assault, or stalking.
(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 (k) and (m), if the definition of
"disability" used in the federal Americans with Disabilities Act of
1990 (P.L. 101-336) would result in broader protection of the civil
rights of individuals with a mental disability or physical
disability, as defined in subdivision (k) 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 (k) 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 status
as a victim of domestic violence, sexual assault, or stalking"
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 any 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.
(3) With regard to victims of domestic violence, sexual assault,
or stalking, the implementation of safety measures, including a
transfer, reassignment, modified schedule, changed work telephone,
changed work station, installed lock, assistance in documenting
domestic violence, sexual assault, or stalking that occurs in the
workplace, an implemented safety procedure, or another adjustment to
a job structure, workplace facility, or
work requirement in response to actual or threatened
domestic violence, sexual assault, or stalking.
(q) "Religious creed," "religion," "religious observance,"
"religious belief," and "creed" include all aspects of religious
belief, observance, and practice.
(r) "Sex" includes, but is not limited to, pregnancy, childbirth,
or medical conditions related to pregnancy or childbirth. "Sex" also
includes, but is not limited to, a person's gender. "Gender" means
sex, and includes a person's gender identity and gender expression.
"Gender expression" means a person's gender-related appearance and
behavior whether or not stereotypically associated with the person's
assigned sex at birth.
(s) "Sexual assault" means a crime set forth in Section 261,
261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 267, 269, 273.4, 285,
286, 288, 288a, 289, or 311.4 of the Penal Code.
(t) "Sexual orientation" means heterosexuality, homosexuality, and
bisexuality.
(u) "Stalking" means a crime set forth in Section 646.9 of the
Penal Code and Section 1708.7 of the Civil Code.
(v) "Supervisor" means any individual having the authority, in the
interest of the employer, to hire, transfer, suspend, layoff,
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.
(w) "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, administrative, or fiscal
relationship of the facility or facilities.
SEC. 7. Section 12926.1 of the Government Code
is amended to read:
12926.1. The Legislature finds and declares as follows:
(a) The law of this state in the area of disabilities provides
protections independent from those in the federal Americans with
Disabilities Act of 1990 (P.L. 101-336). Although the federal act
provides a floor of protection, this state's law has always, even
prior to passage of the federal act, afforded additional protections.
(b) The law of this state contains broad definitions of physical
disability, mental disability, and medical condition. It is the
intent of the Legislature that the definitions of physical disability
and mental disability be construed so that applicants and employees
are protected from discrimination due to an actual or perceived
physical or mental impairment that is disabling, potentially
disabling, or perceived as disabling or potentially disabling.
(c) Physical and mental disabilities include, but are not limited
to, chronic or episodic conditions such as HIV/AIDS, hepatitis,
epilepsy, seizure disorder, diabetes, clinical depression, bipolar
disorder, multiple sclerosis, and heart disease. In addition, the
Legislature has determined that the definitions of "physical
disability" and "mental disability" under the law of this state
require a "limitation" upon a major life activity, but do not
require, as does the federal Americans with Disabilities Act of 1990,
a "substantial limitation." This distinction is intended to result
in broader coverage under the law of this state than under that
federal act. Under the law of this state, whether a condition limits
a major life activity shall be determined without respect to any
mitigating measures, unless the mitigating measure itself limits a
major life activity, regardless of federal law under the Americans
with Disabilities Act of 1990. Further, under the law of this state,
"working" is a major life activity, regardless of whether the actual
or perceived working limitation implicates a particular employment or
a class or broad range of employments.
(d) Notwithstanding any interpretation of law in Cassista v.
Community Foods (1993) 5 Cal.4th 1050, the Legislature intends (1)
for state law to be independent of the federal Americans with
Disabilities Act of 1990, (2) to require a "limitation" rather than a
"substantial limitation" of a major life activity, and (3) Section
12926 to provide protection when an individual is erroneously or
mistakenly believed to have any physical or mental condition that
limits a major life activity.
(e) The Legislature affirms the importance of the interactive
process between the applicant or employee and the employer in
determining a reasonable accommodation, as this requirement has been
articulated by the Equal Employment Opportunity Commission in its
interpretive guidance of the federal Americans with Disabilities Act
of 1990.
SEC. 8. Section 12926.2 of the Government Code
is amended to read:
12926.2. As used in this part in connection with unlawful
practices, unless a different meaning clearly appears from the
context:
(a) "Religious corporation" means any corporation formed under, or
otherwise subject to, Part 4 (commencing with Section 9110) or Part
6 (commencing with Section 10000) of Division 2 of Title 1 of the
Corporations Code, and also includes a corporation that is formed
primarily or exclusively for religious purposes under the laws of any
other state to administer the affairs of an organized religious
group and that is not organized for private profit.
(b) "Religious duties" means duties of employment connected with
carrying on the religious activities of a religious corporation or
association.
(c) Notwithstanding Section 12926 and except as otherwise provided
in subdivision (d) of this section, "employer" includes a religious
corporation or association with respect to persons employed by the
religious association or corporation to perform duties, other than
religious duties, at a health care facility operated by the religious
association or corporation for the provision of health care that is
not restricted to adherents of the religion that established the
association or corporation.
(d) "Employer" does not include a religious corporation with
respect to either the employment, including promotion, of an
individual of a particular religion, or the application of the
employer's religious doctrines, tenets, or teachings, in any work
connected with the provision of health care.
(e) Notwithstanding Section 12926, "employer" does not include a
nonprofit public benefit corporation incorporated to provide health
care on behalf of a religious organization under Part 2 (commencing
with Section 5110) of Division 2 of Title 1 of the Corporations Code,
with respect to employment, including promotion, of an individual of
a particular religion in an executive or pastoral-care position
connected with the provision of health care.
(f) (1) Notwithstanding any other provision of law, a nonprofit
public benefit corporation formed by, or affiliated with, a
particular religion and that operates an educational institution as
its sole or primary activity, may restrict employment, including
promotion, in any or all employment categories to individuals of a
particular religion.
(2) Notwithstanding paragraph (1) or any other provision of law,
employers that are nonprofit public benefit corporations specified in
paragraph (1) shall be subject to the provisions of this part in all
other respects, including, but not limited to, the prohibitions
against discrimination made unlawful employment practices by this
part.
SEC. 9. Section 12928 of the Government Code is
amended to read:
12928. Notwithstanding any other provision of this part, there is
a rebuttable presumption that "employer," as defined in Section
12926, includes any person or entity identified as the employer on
the employee's Federal Form W-2 (Wage and Tax Statement).
SEC. 10. Section 12931 of the Government Code
is amended to read:
12931. (a) The department may also provide assistance to
communities and persons therein in resolving disputes, disagreements,
or difficulties relating to discriminatory practices based on race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, familial status, age, sexual orientation, or status as a
victim of domestic violence, sexual assault, or stalking that impair
the rights of persons in those communities under the Constitution or
laws of the United States or of this state. The services of the
department may be made available in cases of these disputes,
disagreements, or difficulties only when, in its judgment, peaceful
relations among the citizens of the community involved are threatened
thereby. The department's services are to be made available only
upon the request of an appropriate state or local public body, or
upon the request of any person directly affected by any such dispute,
disagreement, or difficulty.
(b) The assistance of the department pursuant to this section
shall be limited to endeavors at investigation, conference,
conciliation, and persuasion.
SEC. 11. 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
status as a victim of domestic violence, sexual assault, or stalking
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) This part does not prohibit an employer from refusing to hire
or discharging an employee who, because of the employee's 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 employee's 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 employee's medical condition, is unable to
perform his or her essential duties, or cannot perform those duties
in a manner that would not endanger the employee's health or safety
or the health or safety of others even with reasonable
accommodations.
(3) 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) 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) (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 status as a victim of domestic violence, sexual
assault, or stalking 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 status as a victim of
domestic violence, sexual assault, or stalking of the person in the
election of officers of the labor organization or in the selection of
the labor organization's 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 or training of that person in any apprenticeship training
program or any other training program leading to employment 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 status as a victim of
domestic violence, sexual assault, or stalking 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
non-job-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 status as a victim of
domestic violence, sexual assault, or stalking, 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 applicant's 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 status as a victim of domestic violence, sexual
assault, or stalking, to harass an employee, an applicant, or a
person providing services pursuant to a contract. Harassment of an
employee, an applicant, 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, 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 employer's
control and any other legal responsibility which 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 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.
(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 employer's 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) 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 person's
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 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, and
reasonable time necessary for travel prior and subsequent to a
religious observance.
(m) 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 to its operation.
(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) For an employer, labor organization, employment agency,
apprenticeship training program, or any program leading to
employment, or any other person or entity covered by this part, to
discriminate against a victim of threatened or actual domestic
violence, sexual assault, or stalking because the workplace or a
work-related setting is disrupted or threatened by the action of a
person whom the person discriminated against states has committed or
threatened to commit domestic violence, sexual assault, or stalking
against the individual or the individual's family or other household
member.
SEC. 12. Section 12944 of the Government Code
is amended to read:
12944. (a) (1) It shall be unlawful for a licensing board to
require any examination or establish any other qualification for
licensing that has an adverse impact on any class by virtue of its
race, creed, color, national origin or ancestry, sex, gender, gender
identity, gender expression, age, medical condition, genetic
information, physical disability, mental disability, sexual
orientation, or status as a victim of domestic violence, sexual
assault, or stalking, unless the practice can be demonstrated to be
job related.
(2) Where the commission, after hearing, determines that an
examination is unlawful under this subdivision, the licensing board
may continue to use and rely on the examination until such time as
judicial review by the superior court of the determination is
exhausted.
(3) If an examination or other qualification for licensing is
determined to be unlawful under this section, that determination
shall not void, limit, repeal, or otherwise affect any right,
privilege, status, or responsibility previously conferred upon any
person by the examination or by a license issued in reliance on the
examination or qualification.
(b) It shall be unlawful for a licensing board to fail or refuse
to make reasonable accommodation to an individual's mental or
physical disability or medical condition.
(c) It shall be unlawful for any licensing board, unless
specifically acting in accordance with federal equal employment
opportunity guidelines or regulations approved by the commission, to
print or circulate or cause to be printed or circulated any
publication, or to make any non-job-related inquiry, either verbal or
through use of an application form, which 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, sex, gender, gender identity, gender expression, age,
sexual orientation, or status as a victim of domestic violence,
sexual assault, or stalking or any intent to make any such
limitation, specification, or discrimination. Nothing in this
subdivision shall prohibit any licensing board from making, in
connection with prospective licensure or certification, an inquiry as
to, or a request for information regarding, the physical fitness of
applicants if that inquiry or request for information is directly
related and pertinent to the license or the licensed position for
which the applicant is applying. Nothing in this subdivision shall
prohibit any licensing board, in connection with prospective
examinations, licensure, or certification, from inviting individuals
with physical or mental disabilities to request reasonable
accommodations or from making inquiries related to reasonable
accommodations.
(d) It is unlawful for a licensing board to discriminate against
any person because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(e) It is unlawful for any licensing board to fail to keep records
of applications for licensing or certification for a period of two
years following the date of receipt of the applications.
(f) As used in this section, "licensing board" means any state
board, agency, or authority in the State and Consumer Services Agency
that has the authority to grant licenses or certificates which are
prerequisites to employment eligibility or professional status.
SEC. 13. Section 12945.6 is added to the
Government Code, to read:
12945.6. (a) In addition to the protections in Section 12940, it
shall be an unlawful employment practice to do any of the following,
unless based on a bona fide occupational qualification:
(1) For an employer to refuse to provide reasonable accommodations
for an employee who is a victim of actual or threatened domestic
violence, sexual assault, or stalking. Reasonable accommodations
shall be made in a timely fashion. An exigent circumstance or danger
facing the employee or the employee's family or other household
member shall be considered in determining whether the accommodation
is reasonable.
(2) For an employer to fail to engage in a timely, good faith
interactive process with the individual to determine effective
reasonable accommodations, if any, in response to a request for
reasonable accommodations made by an employee who is a victim of
actual or threatened domestic violence, sexual assault, or stalking.
(3) For an employer to retaliate against a victim of actual or
threatened domestic violence, sexual assault, or stalking for
requesting a reasonable accommodation, regardless of whether the
request was granted.
(4) For an employer to retaliate against an employee for providing
documentation for the purpose of certifying the need for
accommodations as described in subdivision (b), or the need for leave
under subdivision (c) of Section 230 or Section 230.1 of the Labor
Code.
(5) This subdivision does not require the employer to undertake an
action that constitutes an undue hardship on the employer's business
operations.
(b) (1) Upon an employer's request, an employee who requests a
reasonable accommodation pursuant to this section shall provide the
employer a signed written statement from the employee or other
individual acting on the employee's behalf certifying that the
accommodation is for a purpose authorized under this section. The
employer may also, but need not, request that the employee provide
either a police or court record related to the domestic violence,
sexual assault, or stalking, or provide a signed written statement
that the employee is a victim of threatened or actual domestic
violence, sexual assault, or stalking, if that statement is from an
employee or agent of a victim services organization, an attorney, or
a licensed medical professional or other licensed professional, from
whom the employee has sought assistance with respect to the domestic
violence, sexual assault, or stalking.
(2) Any verbal or written statement or police or court record
provided to an employer identifying an employee as a victim of
domestic violence, sexual assault, or stalking, including
documentation provided to the employer pursuant to this section,
shall be maintained as confidential by the employer and shall not be
further disclosed by the employer except as required by federal or
state law or as necessary to protect the employee's safety in the
workplace. The employee shall be given notice before any authorized
disclosure.
SEC. 14. Section 12951 of the Government Code
is amended to read:
12951. (a) It is an unlawful employment practice for an employer,
as defined in Section 12926, to adopt or enforce a policy that
limits or prohibits the use of any language in any workplace, unless
both of the following conditions exist:
(1) The language restriction is justified by a business necessity.
(2) The employer has notified its employees of the circumstances
and the time when the language restriction is required to be observed
and of the consequences for violating the language restriction.
(b) For the purposes of this section, "business necessity" means
an overriding legitimate business purpose such that the language
restriction is necessary to the safe and efficient operation of the
business, that the language restriction effectively fulfills the
business purpose it is supposed to serve, and there is no alternative
practice to the language restriction that would accomplish the
business purpose equally well with a lesser discriminatory impact.
SEC. 15. Section 98.6 of the Labor Code is
amended to read:
98.6. (a) No person shall discharge an employee or in any manner
discriminate against any employee or applicant for employment because
the employee or applicant engaged in any conduct delineated in this
chapter, including the conduct described in subdivision (k) of
Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of
Division 2, or because the employee or applicant for employment has
filed a bona fide complaint or claim or instituted or caused to be
instituted any proceeding under or relating to his or her rights,
which are under the jurisdiction of the Labor Commissioner, or
because the employee has initiated any action or notice pursuant to
Section 2699, or has testified or is about to testify in any such
proceeding or because of the exercise by the employee or applicant
for employment on behalf of himself, herself, or others of any rights
afforded him or her.
(b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
the terms and conditions of his or her employment because the
employee engaged in any conduct delineated in this chapter, including
the conduct described in subdivision (k) of Section 96, and Chapter
5 (commencing with Section 1101) of Part 3 of Division 2, or because
the employee has made a bona fide complaint or claim to the division
pursuant to this part, or because the employee has initiated any
action or notice pursuant to Section 2699 shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by those acts of the employer. Any employer who willfully
refuses to hire, promote, or otherwise restore an employee or former
employee who has been determined to be eligible for rehiring or
promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor.
(c) (1) Any applicant for employment who is refused employment,
who is not selected for a training program leading to employment, or
who in any other manner is discriminated against in the terms and
conditions of any offer of employment because the applicant engaged
in any conduct delineated in this chapter, including the conduct
described in subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the applicant
has made a bona fide complaint or claim to the division pursuant to
this part, or because the employee has initiated any action or notice
pursuant to Section 2699 shall be entitled to employment and
reimbursement for lost wages and work benefits caused by the acts of
the prospective employer.
(2) This subdivision shall not be construed to invalidate any
collective bargaining agreement that requires an applicant for a
position that is subject to the collective bargaining agreement to
sign a contract that protects either or both of the following as
specified in subparagraphs (A) and (B), nor shall this subdivision be
construed to invalidate any employer requirement of an applicant for
a position that is not subject to a collective bargaining agreement
to sign an employment contract that protects either or both of the
following:
(A) An employer against any conduct that is actually in direct
conflict with the essential enterprise-related interests of the
employer and where breach of that contract would actually constitute
a material and substantial disruption of the employer's operation.
(B) A firefighter against any disease that is presumed to arise in
the course and scope of employment, by limiting his or her
consumption of tobacco products on and off the job.
(d) The provisions of this section creating new actions or
remedies that are effective on January 1, 2002, to employees or
applicants for employment do not apply to any state or local law
enforcement agency, any religious association or corporation
specified in subdivision (e) of Section 12926 of the Government Code,
except as provided in Section 12926.2 of the Government Code, or any
person described in Section 1070 of the Evidence Code.
SEC. 16. Section 868.8 of the Penal Code is
amended to read:
868.8. Notwithstanding any other provision of law, in any
criminal proceeding in which the defendant is charged with a
violation of Section 243.4, 261, 273a, 273d, 285, 286, 288, 288a,
288.5, or 289, subdivision (1) of Section 314, Section 647.6, or
former Section 647a, or any crime that constitutes domestic violence
defined in Section 13700, committed with or upon a person with a
disability or a minor under 11 years of age, the court shall take
special precautions to provide for the comfort and support of the
person with a disability or minor and to protect him or her from
coercion, intimidation, or undue influence as a witness, including,
but not limited to, any of the following:
(a) In the court's discretion, the witness may be allowed
reasonable periods of relief from examination and cross-examination
during which he or she may retire from the courtroom. The judge may
also allow other witnesses in the proceeding to be examined when the
person with a disability or child witness retires from the courtroom.
(b) Notwithstanding Section 68110 of the Government Code, in his
or her discretion, the judge may remove his or her robe if the judge
believes that this formal attire intimidates the person with a
disability or the minor.
(c) In the court's discretion the judge, parties, witnesses,
support persons, and court personnel may be relocated within the
courtroom to facilitate a more comfortable and personal environment
for the person with a disability or child witness.
(d) In the court's discretion, the taking of the testimony of the
person with a disability or the minor may be limited to normal school
hours if there is no good cause to take the testimony of the person
with a disability or the minor during other hours.
(e) For the purposes of this section, the term "disability" is
defined in Section 12926 of the Government Code.
SEC. 17. Section 4900 of the Welfare and
Institutions Code is amended to read:
4900. (a) The definitions contained in this section shall govern
the construction of this division, unless the context requires
otherwise. These definitions shall not be construed to alter or
impact the definitions or other provisions of the Elder Abuse and
Dependent Adult Civil Protection Act (Chapter 11 (commencing with
Section 15600)), or Chapter 13 (commencing with Section 15750), of
Part 3 of Division 9.
(b) "Abuse" means an act, or failure to act, that would constitute
abuse as that term is defined in federal regulations pertaining to
the authority of protection and advocacy agencies, including Section
51.2 of Title 42 of the Code of Federal Regulations or Section
1386.19 of Title 45 of the Code of Federal Regulations. "Abuse" also
means an act, or failure to act, that would constitute abuse as that
term is defined in Section 15610.07 of this code or Section 11165.6
of the Penal Code.
(c) "Complaint" has the same meaning as "complaint" as defined in
federal statutes and regulations pertaining to the authority of
protection and advocacy agencies, including Section 10802(1) of Title
42 of the United States Code, Section 51.2 of Title 42 of the Code
of Federal Regulations, or Section 1386.19 of Title 45 of the Code of
Federal Regulations.
(d) "Disability" means a developmental disability, as defined in
Section 15002(8) of Title 42 of the United States Code, a mental
illness, as defined in Section 10802(4) of Title 42 of the United
States Code, a disability within the meaning of the federal Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as
defined in Section 12102(2) of Title 42 of the United States Code, or
a disability within the meaning of the California Fair Employment
and Housing Act (Part 2.8 (commencing with Section 12900) of Division
3 of Title 2 of the Government Code), as defined in Section 12926 of
the Government Code.
(e) "Facility" or "program" means a public or private facility or
program providing services, support, care, or treatment to persons
with disabilities, even if only on an as-needed basis or under
contractual arrangement. "Facility" or "program" includes, but is not
limited to, a hospital, a long-term health care facility, a
community living arrangement for people with disabilities, including
a group home, a board and care home, an individual residence or
apartment of a person with a disability where services are provided,
a day program, a juvenile detention facility, a homeless shelter, a
jail, or a prison, including all general areas, as well as special,
mental health, or forensic units. The term includes any facility
licensed under Division 2 (commencing with Section 1200) of the
Health and Safety Code and any facility that is unlicensed but is not
exempt from licensure as provided in subdivision (a) of Section
1503.5 of the Health and Safety Code. The term also includes a public
or private school or other institution or program providing
education, training, habilitation, therapeutic, or residential
services to persons with disabilities.
(f) "Legal guardian," "conservator," or "legal representative"
means a person appointed by a state court or agency empowered under
state law to appoint and review the legal guardian, conservator, or
legal representative, as appropriate. With respect to an individual
described under paragraph (2) of subdivision (i), this person is one
who has the legal authority to consent to health or mental health
care or treatment on behalf of the individual. With respect to an
individual described under paragraphs (1) or (3) of subdivision (i),
this person is one who has the legal authority to make all decisions
on behalf of the individual. These terms include the parent of a
minor who has legal custody of the minor. These terms do not include
a person acting solely as a representative payee, a person acting
solely to handle financial matters, an attorney or other person
acting on behalf of an individual with a disability solely in
individual legal matters, or an official or his or her designee who
is responsible for the provision of treatment or services to an
individual with a disability.
(g) "Neglect" means a negligent act, or omission to act, that
would constitute neglect as that term is defined in federal statutes
and regulations pertaining to the authority of protection and
advocacy agencies, including Section 10802(5) of Title 42 of the
United States Code, Section 51.2 of Title 42 of the Code of Federal
Regulations, or Section 1386.19 of Title 45 of the Code of Federal
Regulations. "Neglect" also means a negligent act, or omission to
act, that would constitute neglect as that term is defined in
subdivision (b) of Section 15610.07 of this code or Section 11165.2
of the Penal Code.
(h) "Probable cause" to believe that an individual has been
subject to abuse or neglect, or is at significant risk of being
subjected to abuse or neglect, exists when the protection and
advocacy agency determines that it is objectively reasonable for a
person to entertain that belief. The individual making a probable
cause determination may base the decision on reasonable inferences
drawn from his or her experience or training regarding similar
incidents, conditions, or problems that are usually associated with
abuse or neglect. Information supporting a probable cause
determination may result from monitoring or other activities,
including, but not limited to, media reports and newspaper articles.
(i) "Protection and advocacy agency" means the private nonprofit
corporation designated by the Governor in this state pursuant to
federal law for the protection and advocacy of the rights of persons
with disabilities, including the following:
(1) People with developmental disabilities, as authorized under
the federal Developmental Disabilities Assistance and Bill of Rights
Act of 2000, contained in Chapter 144 (commencing with Section 15001)
of Title 42 of the United States Code.
(2) People with mental illness, as authorized under the federal
Protection and Advocacy for Mentally Ill Individuals Amendments Act
of 1991, contained in Chapter 114 (commencing with Section 10801) of
Title 42 of the United States Code.
(3) People with disabilities within the meaning of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et
seq.) as defined in Section 12102(2) of Title 42 of the United States
Code, who do not have a developmental disability as defined in
Section 15002(8) of Title 42 of the United States Code, people with a
mental illness as defined in Section 10802(4) of Title 42 of the
United States Code, and who are receiving services under the federal
Protection and Advocacy of Individual Rights Act as defined in
Section 794e of Title 29
of the United States Code, or people with a disability within the
meaning of the California Fair Employment and Housing Act (Part 2.8
(commencing with Section 12900) of Division 3 of Title 2 of the
Government Code), as defined in Section 12926 of the Government Code.
(j) "Reasonable unaccompanied access" means access that permits
the protection and advocacy agency, without undue interference, to
monitor, inspect, and observe conditions in facilities and programs,
to meet and communicate with residents and service recipients
privately and confidentially on a regular basis, formally or
informally, by telephone, mail, electronic mail, and in person, and
to review records privately and confidentially, in a manner that
minimizes interference with the activities of the program or service,
that respects residents' privacy interests and honors a resident's
request to terminate an interview, and that does not jeopardize the
physical health or safety of facility or program staff, residents,
service recipients, or protection and advocacy agency staff.
SECTION 1. Section 230 of the Labor
Code is amended to read:
230. (a) An employer may shall not
discharge or in any manner discriminate against an employee for
taking time off to serve as required by law on an inquest jury or
trial jury, if the employee, prior to taking the time off, gives
reasonable notice to the employer that he or she is required to
serve.
(b) An employer may shall not
discharge or in any manner discriminate or retaliate against an
employee, including, but not limited to, an employee who is a victim
of a crime, for taking time off to appear in court to comply with a
subpoena or other court order as a witness in any judicial
proceeding.
(c) An employer may shall not
discharge or in any manner discriminate or retaliate against an
employee who is a victim of domestic violence or a victim of
, sexual assault , or stalking for
taking time off from work to obtain or attempt to obtain any relief,
including, but not limited to, a temporary restraining order,
restraining order, or other injunctive relief, to help ensure the
health, safety, or welfare of the victim or his or her child.
(d) (1) As a condition of taking time off for a purpose set forth
in subdivision (c), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not
take any action against the employee if the employee, within a
reasonable time after the absence, provides a certification to the
employer. Certification shall be sufficient in the form of any of the
following:
(A) A police report indicating that the employee was a victim of
domestic violence or , sexual assault
, or stalking .
(B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence or
, sexual assault, or stalking, or other evidence
from the court or prosecuting attorney that the employee has appeared
in court.
(C) Documentation from a medical professional, domestic violence
advocate or advocate for victims of sexual assault, health care
provider, or counselor that the employee was undergoing treatment for
physical or mental injuries or abuse resulting in victimization from
an act of domestic violence or ,
sexual assault , or stalking .
(3) To the extent allowed by law and consistent with
subparagraph (D) of paragraph (7) of subdivision (f) , the
employer shall maintain the confidentiality of any employee
requesting leave under subdivision (c).
(e) An employer shall not discharge or in any manner discriminate
or retaliate against an employee because of the employee's known
status as a victim of domestic violence, sexual assault, or stalking.
(f) (1) An employer shall provide reasonable accommodations for a
victim of domestic violence, sexual assault, or stalking who requests
an accommodation for the safety of the victim while at work.
(2) For purposes of this subdivision, reasonable accommodations
may include the implementation of safety measures, including a
transfer, reassignment, modified schedule, changed work telephone,
changed work station, installed lock, assistance in documenting
domestic violence, sexual assault, or stalking that occurs in the
workplace, an implemented safety procedure, or another adjustment to
a job structure, workplace facility, or work requirement in response
to domestic violence, sexual assault, or stalking, or referral to a
victim assistance organization.
(3) An employer is not required to provide a reasonable
accommodation to an employee who has not disclosed his or her status
as a victim of domestic violence, sexual assault, or stalking.
(4) The employer shall make reasonable accommodations in a timely
fashion.
(5) In determining whether the accommodation is reasonable, the
employer shall consider an exigent circumstance or danger facing the
employee.
(6) This subdivision does not require the employer to undertake an
action that constitutes an undue hardship on the employer's business
operations, as defined by Section 12926 of the Government Code.
(7) (A) Upon the request of an employer, an employee requesting a
reasonable accommodation pursuant to this subdivision shall provide
the employer a written statement signed by the employee or an
individual acting on the employee's behalf, certifying that the
accommodation is for a purpose authorized under this subdivision.
(B) The employer may also request certification from an employee
requesting an accommodation pursuant to this subdivision
demonstrating the employee's status as a victim of domestic violence,
sexual assault, or stalking. Certification shall be sufficient in
the form of any of the categories described in paragraph (2) of
subdivision (d).
(C) An employer who requests certification pursuant to
subparagraph (B) may request recertification of an employee's status
as a victim of domestic violence, sexual assault, or stalking every
six months after the date of the previous certification.
(D) Any verbal or written statement, police or court record, or
other documentation provided to an employer identifying an employee
as a victim of domestic violence, sexual assault, or stalking shall
be maintained as confidential by the employer and shall not be
disclosed by the employer except as required by federal or state law
or as necessary to protect the employee's safety in the workplace.
The employee shall be given notice before any authorized disclosure.
(8) An employer shall not retaliate against a victim of domestic
violence, sexual assault, or stalking for requesting a reasonable
accommodation, regardless of whether the request was granted.
(e)
(g) (1) Any
An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has taken time off for a purpose
set forth in subdivision (a) , or (b)
, or (c) shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer. Any
(2) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer for reasons prohibited in subdivision (c) or (e), or
because he or she has requested or received a reasonable
accommodation as set forth in subdivision (f), is entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer, as well as appropriate equitable
relief. If the employee prevails in an action pursuant to this
paragraph, the court may award reasonable attorney's fees and costs.
(3) An employer who willfully
refuses to rehire, promote, or otherwise restore an employee or
former employee who has been determined to be eligible for rehiring
or promotion by a grievance procedure or hearing authorized by law is
guilty of a misdemeanor.
(f)
(h) (1) Any An employee
who is discharged, threatened with discharge, demoted, suspended, or
in any other manner discriminated or retaliated against in the terms
and conditions of employment by his or her employer because the
employee has exercised his or her rights as set forth in subdivision
(a), (b), or (c) may file a complaint with the Division of Labor
Standards Enforcement of the Department of Industrial Relations
pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an
employee filing may file a complaint
with the division based upon a violation of subdivision (c)
shall have within one year from the date of
occurrence of the violation to file his or her complaint
.
(g)
(i) An employee may use vacation, personal leave, or
compensatory time off that is otherwise available to the employee
under the applicable terms of employment, unless otherwise provided
by a collective bargaining agreement, for time taken off for a
purpose specified in subdivision (a), (b), or (c). The entitlement of
any employee under this section shall not be diminished by any
collective bargaining agreement term or condition.
(h)
(j) For purposes of this section:
(1) "Domestic violence" means any of the types of abuse set forth
in Section 6211 of the Family Code, as amended.
(2) "Sexual assault" means any of the crimes set forth in Section
261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
as amended.
(3) "Stalking" means a crime set forth in Section 646.9 of the
Penal Code or Section 1708.7 of the Civil Code.
SEC. 2. Section 230.1 of the Labor Code
is amended to read:
230.1. (a) In addition to the requirements and prohibitions
imposed on employees pursuant to Section 230, an employer with 25 or
more employees may shall not discharge
or in any manner discriminate or retaliate against an employee who is
a victim of domestic violence or a victim of
, sexual assault , or stalking for taking time off
from work to attend to any of the following:
(1) To seek medical attention for injuries caused by domestic
violence or , sexual assault , or
stalking .
(2) To obtain services from a domestic violence shelter, program,
or rape crisis center as a result of domestic violence or
, sexual assault , or stalking
.
(3) To obtain psychological counseling related to an experience of
domestic violence or , sexual assault
, or stalking .
(4) To participate in safety planning and take other actions to
increase safety from future domestic violence or
, sexual assault, or stalking, including
temporary or permanent relocation.
(b) (1) As a condition of taking time off for a purpose set forth
in subdivision (a), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer may
shall not take any action against the employee
if the employee, within a reasonable time after the absence, provides
a certification to the employer. Certification shall be sufficient
in the form of any of the following:
categories described in paragraph (2) of subdivision (d) of Section
230.
(A) A police report indicating that the employee was a victim of
domestic violence or sexual assault.
(B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence or sexual assault, or
other evidence from the court or prosecuting attorney that the
employee appeared in court.
(C) Documentation from a medical professional, domestic violence
advocate or advocate for victims of sexual assault, health care
provider, or counselor that the employee was undergoing treatment for
physical or mental injuries or abuse resulting in victimization from
an act of domestic violence or sexual assault.
(3) To the extent allowed by law and consistent with
subparagraph (D) of paragraph (7) of subdivision (f) of Section 230
, employers shall maintain the confidentiality of any employee
requesting leave under subdivision (a).
(c) Any An employee who is
discharged, threatened with discharge, demoted, suspended, or in any
other manner discriminated or retaliated against in the terms and
conditions of employment by his or her employer because the employee
has taken time off for a purpose set forth in subdivision (a) is
entitled to reinstatement and reimbursement for lost wages and work
benefits caused by the acts of the employer , as well as
appropriate equitable relief . Any An
employer who willfully refuses to rehire, promote, or otherwise
restore an employee or former employee who has been determined to be
eligible for rehiring or promotion by a grievance procedure or
hearing authorized by law is guilty of a misdemeanor.
(d) (1) Any An employee who is
discharged, threatened with discharge, demoted, suspended, or in any
other manner discriminated or retaliated against in the terms and
conditions of employment by his or her employer because the employee
has exercised his or her rights as set forth in subdivision (a) may
file a complaint with the Division of Labor Standards Enforcement of
the Department of Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an
employee filing may file a complaint
with the division based upon a violation of subdivision (a)
has within one year from the date of occurrence
of the violation to file his or her complaint .
(e) If an employee prevails in an action pursuant to this section,
the court may award reasonable attorney's fees and costs.
(e)
(f) An employee may use vacation, personal leave, or
compensatory time off that is otherwise available to the employee
under the applicable terms of employment, unless otherwise provided
by a collective bargaining agreement, for time taken off for a
purpose specified in subdivision (a). The entitlement of any employee
under this section may shall not be
diminished by any collective bargaining agreement term or condition.
(f)
(g) This section does not create a right for an
employee to take unpaid leave that exceeds the unpaid leave time
allowed under, or is in addition to the unpaid leave time permitted
by, the federal Family and Medical Leave Act of 1993 (29 U.S.C. Sec.
2601 et seq.).
(g)
(h) For purposes of this section:
(1) "Domestic violence" means any of the types of abuse set forth
in Section 6211 of the Family Code, as amended.
(2) "Sexual assault" means any of the crimes set forth in Section
261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
as amended.
(3) "Stalking" means a crime set forth in Section 646.9 of the
Penal Code or Section 1708.7 of the Civil Code.
SEC. 18. SEC. 3. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.
