BILL ANALYSIS
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THIRD READING
Bill No: AB 2900
Author: Laird (D)
Amended: 4/1/04 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-2, 6/22/04
AYES: Escutia, Cedillo, Kuehl, Sher
NOES: Morrow, Ackerman
NO VOTE RECORDED: Ducheny
SENATE APPROPRIATIONS COMMITTEE : 7-4, 8/4/04
AYES: Alpert, Bowen, Escutia, Karnette, Machado, Murray,
Speier
NOES: Battin, Aanestad, Ashburn, Poochigian
NO VOTE RECORDED: Burton, Johnson
ASSEMBLY FLOOR : 48-32, 5/17/04 - See last page for vote
SUBJECT : Employment discrimination
SOURCE : Equality California
DIGEST : This bill changes employment antidiscrimination
provisions in various codes to conform with the Fair
Employment and Housing Act (FEHA) and to prohibit
discrimination on the same bases as those found in FEHA.
ANALYSIS : Existing law, scattered among several codes,
prohibit discrimination in employment on different bases,
such as race, color, sex, religion and marital status.
CONTINUED
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Existing law, FEHA, prohibits discrimination on the basis
of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
marital status, sex, age, or sexual orientation.
This bill incorporates, in various code provisions that
prohibit discrimination in employment on the basis of
specified characteristics, a reference to the bases
enumerated in FEHA, as those bases may be defined under
that act.
This bill requires the Agricultural Labor Relations Board
(ALRB) to decertify a labor organization based on a finding
by the State Department of Fair Employment and Housing that
the organization discriminated on the basis of membership
in the protected classes enumerated in FEHA. Section
1156.3 of the Labor Code requires the ALRB to decertify a
labor organization on the basis of the United States Equal
Employment Opportunity Commission finding that the labor
organization engaged in discrimination on the basis of
race, color, national origin, religion, sex, or any other
arbitrary or invidious classification in violation of Title
42 of the United States Code during the labor
organization's present certification.
According to the Senate Judiciary Committee analysis, this
bill is consistent with California's longstanding policy of
protecting its workers, even more so than federal laws and
regulations. Because Section 12940's list of protected
classes is more expansive in scope and less restrictive in
qualifiers than federal law, allowing the ALRB to decertify
a labor organization that discriminates on the basis of
membership in one of California's list of protected classes
makes sense.
This bill applies the non-discrimination policy to the
protected classes enumerated in FEHA, relating to service
in the California State Military Reserve in positions that
do not require federal recognition.
AB 2889 codifies the court's holding in Holmes v.
California National Guard, 90 Cal.App.4th, 297
Holmes involved the "Don't Ask, Don't Tell" policy of the
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United States Military, that requires self-acknowledged
homosexuals to separate from federal military service.
Holmes was an officer in the California State Military
Reserve who was placed into service in the United States
Army National Guard of California. When he acknowledged
his homosexuality, his federal recognition was withdrawn
(he was given an honorable discharge). The state statute
governing state military reserve officers commissioned into
federal service allows them to return to former reserve
status and to remain as a state commissioned officer of the
California State Military Reserve. The court held that the
state effectively discriminated against Holmes when it did
not allow Holmes to return to active duty in the California
State Military Reserve in a position that did not require
federal recognition.
Section 130 of the Military and Veterans Code prohibits
segregation of the state militia or discrimination on the
basis of race, national origin, ancestry, or color. This
bill cross-references this section to Section 12940 of the
Government Code (FEHA) instead.
Section 130 also declares the state policy that there be
equality of treatment and opportunity to all members of the
state militia without regard to race, national origin,
ancestry or color. Again, this bill cross-references
Section 12940 to include all of the other protected classes
under this policy.
Additionally, Section 130 requires the Governor to put this
policy into effect in the militia, with due regard to the
powers of the federal government that may be exercised over
all the militia of the state. This bill qualifies this
statement to refer to the federal government's powers over
the militia with regards to positions requiring federal
recognition.
This change preserves the rights of California military
personnel when they are not serving in the United States
military as part of the National Guard, and tie those
rights to the protections provided by FEHA. AB 2889
(Laird) incorporates language in the court's decision in
Holmes, which refers to the federal government's power over
the state's rules with regards to the military as being
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limited to those positions that require federal
recognition.
This bill makes other conforming changes to those
provisions.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee analysis,
costs to various state agencies for enforcement of the
expanded provisions is unknown, but likely less than
$150,000 annually. Costs to local law enforcement agencies
resulting from the expansion of a misdemeanor would be
minor and offset by fine revenues.
SUPPORT : (Verified 8/5/04)
Equality California (source)
Office of the State Attorney General
American Civil Liberties Union
American Federation of State, County and Municipal
Employees, AFL-CIO Anti-Defamation League
California Independent Public Employees Legislative Council
California Labor Federation
California National Organization for Women
California State Conference of the National Association for
the Advancement of Colored People
Congress of California Seniors
Human Rights/Fair Housing Commission of the City and County
of Sacramento
Lambda Letters Project
The Legal Aid Society
Metropolitan Community Church, Los Angeles
Mexican American Legal Defense and Education Fund
National Center for Lesbian Rights
Our Family Coalition
Parents, Families, and Friends of Lesbians and Gays,
Ventura County
Pride at Work, Southern California
Protection and Advocacy, Inc.
San Francisco Aids Foundation
The San Francisco Lesbian Gay Bisexual Transgender
Community Center
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Stonewall Democratic Club of Greater Sacramento
Transgender Law Center
OPPOSITION : (Verified 8/5/04)
Associated Builders and Contractors of California
Capitol Resource Institute
Responsible Citizens, Inc.
Traditional Values Coalition
ARGUMENTS IN SUPPORT : The author contends that this bill
is needed "[i]n order to remedy the lack of protection for
many Californians and the confusion that exists for
implementation and compliance" with the varied
anti-discrimination-in-employment laws scattered in the
codes.
In support of this bill, the California State Conference of
the National Association for the Advancement of Colored
People (NAACP) writes, "[a]s the nation's oldest civil
rights organization, the NAACP [supports] this measure to
create a consistent non-discrimination statutory scheme
that also would give California the most comprehensive
civil rights protections of any state in the country for
workers and employers."
Another supporter, the Mexican American Legal Defense and
Educational Fund (MALDEF) states, "[w]e firmly believe that
the citizens of California, including protected classes,
would benefit greatly from the removal of discrepancies
among protected classes in the statutes. Creating
uniformity in the definition of protected classes will
remove any deficiencies in protection as well as any
current confusion in the application and compliance of the
relevant statutes."
ARGUMENTS IN OPPOSITION : The opponents, however, believe
that, "[w]hile consistency in the law is usually
beneficial, we believe existing law is harmful and that
this bill, therefore, makes a bad situation even worse."
Responsible Citizens, Inc., letter dated June 17, 2004.
Another opponent contends that passage of this bill forces
state agencies not only "to keep records showing they are
hiring certain percentages of sexual and other minorities,
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but will force them to actively seek out sexual and other
minorities for recruitment."
Finally, the Associated Builders and Contractors of
California argues that the application of FEHA to all of
those employment-related statutes "make the construction
industry vulnerable to predatory lawsuits resulting from SB
796 (Dunn, 2003)." SB 796 allows employees to bring civil
action to collect penalties from employers in violation of
Labor Code provisions, and allows attorneys' fees and costs
if the prosecution is successful.
ASSEMBLY FLOOR :
AYES: Berg, Bermudez, Calderon, Canciamilla, Chan, Chavez,
Chu, Cohn, Corbett, Correa, Diaz, Dutra, Dymally,
Firebaugh, Frommer, Goldberg, Hancock, Jerome Horton,
Jackson, Kehoe, Koretz, Laird, Leno, Levine, Lieber, Liu,
Longville, Lowenthal, Matthews, Montanez, Mullin, Nakano,
Nation, Negrete McLeod, Oropeza, Parra, Pavley, Reyes,
Ridley-Thomas, Salinas, Simitian, Steinberg, Vargas,
Wesson, Wiggins, Wolk, Yee, Nunez
NOES: Aghazarian, Bates, Benoit, Bogh, Campbell, Cogdill,
Cox, Daucher, Dutton, Garcia, Harman, Haynes, Shirley
Horton, Houston, Keene, La Malfa, La Suer, Leslie,
Maddox, Maldonado, Maze, McCarthy, Mountjoy, Nakanishi,
Pacheco, Plescia, Richman, Runner, Samuelian, Spitzer,
Strickland, Wyland
DLW:mel 8/9/04 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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