California Legislature—2015–16 Regular Session

Assembly BillNo. 272


Introduced by Assembly Member Lackey

February 11, 2015


An act to amend Section 12926 of the Government Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 272, as introduced, Lackey. California Fair Employment and Housing Act.

Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of certain specified characteristics, including race, creed, or national origin. Existing law defines these characteristics and other terms for purposes of the act.

This bill would make a nonsubstantive change to these definitions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P1    1

SECTION 1.  

Section 12926 of the Government Code is
2amended to read:

3

12926.  

As used in this part in connection with unlawful
4practices, unless a different meaning clearly appears from the
5begin delete contextend deletebegin insert context, the following terms have the following meaningsend insert:

6(a) “Affirmative relief” or “prospective relief” includes the
7authority to order reinstatement of an employee, awards of backpay,
8reimbursement of out-of-pocket expenses, hiring, transfers,
P2    1reassignments, grants of tenure, promotions, cease and desist
2orders, posting of notices, training of personnel, testing, expunging
3of records, reporting of records, and any other similar relief that
4is intended to correct unlawful practices under this part.

5(b) “Age” refers to the chronological age of any individual who
6has reached his or her 40th birthday.

7(c) “Employee” does not include any individual employed by
8his or her parents, spouse, or child, or any individual employed
9under a special license in a nonprofit sheltered workshop or
10rehabilitation facility.

11(d) “Employer” includes any person regularly employing five
12or more persons, or any person acting as an agent of an employer,
13directly or indirectly, the state or any political or civil subdivision
14of the state, and cities, except as follows:

15“Employer” does not include a religious association or
16corporation not organized for private profit.

17(e) “Employment agency” includes any person undertaking for
18compensation to procure employees or opportunities to work.

19(f) “Essential functions” means the fundamental job duties of
20the employment position the individual with a disability holds or
21desires. “Essential functions” does not include the marginal
22functions of the position.

23(1) A job function may be considered essential for any of several
24reasons, including, but not limited to, any one or more of the
25following:

26(A) The function may be essential because the reason the
27position exists is to perform that function.

28(B) The function may be essential because of the limited number
29of employees available among whom the performance of that job
30function can be distributed.

31(C) The function may be highly specialized, so that the
32incumbent in the position is hired for his or her expertise or ability
33to perform the particular function.

34(2) Evidence of whether a particular function is essential
35includes, but is not limited to, the following:

36(A) The employer’s judgment as to which functions are essential.

37(B) Written job descriptions prepared before advertising or
38interviewing applicants for the job.

39(C) The amount of time spent on the job performing the function.

P3    1(D) The consequences of not requiring the incumbent to perform
2the function.

3(E) The terms of a collective bargaining agreement.

4(F) The work experiences of past incumbents in the job.

5(G) The current work experience of incumbents in similar jobs.

6(g) (1) “Genetic information” means, with respect to any
7individual, information about any of the following:

8(A) The individual’s genetic tests.

9(B) The genetic tests of family members of the individual.

10(C) The manifestation of a disease or disorder in family members
11of the individual.

12(2) “Genetic information” includes any request for, or receipt
13of, genetic services, or participation in clinical research that
14 includes genetic services, by an individual or any family member
15of the individual.

16(3) “Genetic information” does not include information about
17the sex or age of any individual.

18(h) “Labor organization” includes any organization that exists
19and is constituted for the purpose, in whole or in part, of collective
20bargaining or of dealing with employers concerning grievances,
21terms or conditions of employment, or of other mutual aid or
22protection.

23(i) “Medical condition” means either of the following:

24(1) Any health impairment related to or associated with a
25diagnosis of cancer or a record or history of cancer.

26(2) Genetic characteristics. For purposes of this section, “genetic
27 characteristics” means either of the following:

28(A) Any scientifically or medically identifiable gene or
29chromosome, or combination or alteration thereof, that is known
30to be a cause of a disease or disorder in a person or his or her
31offspring, or that is determined to be associated with a statistically
32increased risk of development of a disease or disorder, and that is
33presently not associated with any symptoms of any disease or
34disorder.

35(B) Inherited characteristics that may derive from the individual
36or family member, that are known to be a cause of a disease or
37disorder in a person or his or her offspring, or that are determined
38to be associated with a statistically increased risk of development
39of a disease or disorder, and that are presently not associated with
40any symptoms of any disease or disorder.

P4    1(j) “Mental disability” includes, but is not limited to, all of the
2following:

3(1) Having any mental or psychological disorder or condition,
4such as intellectual disability, organic brain syndrome, emotional
5or mental illness, or specific learning disabilities, that limits a
6major life activity. For purposes of this section:

7(A) “Limits” shall be determined without regard to mitigating
8measures, such as medications, assistive devices, or reasonable
9accommodations, unless the mitigating measure itself limits a
10major life activity.

11(B) A mental or psychological disorder or condition limits a
12major life activity if it makes the achievement of the major life
13activity difficult.

14(C) “Major life activities” shall be broadly construed and shall
15 include physical, mental, and social activities and working.

16(2) Any other mental or psychological disorder or condition not
17described in paragraph (1) that requires special education or related
18services.

19(3) Having a record or history of a mental or psychological
20disorder or condition described in paragraph (1) or (2), which is
21known to the employer or other entity covered by this part.

22(4) Being regarded or treated by the employer or other entity
23covered by this part as having, or having had, any mental condition
24that makes achievement of a major life activity difficult.

25(5) Being regarded or treated by the employer or other entity
26covered by this part as having, or having had, a mental or
27psychological disorder or condition that has no present disabling
28effect, but that may become a mental disability as described in
29paragraph (1) or (2).

30“Mental disability” does not include sexual behavior disorders,
31compulsive gambling, kleptomania, pyromania, or psychoactive
32substance use disorders resulting from the current unlawful use of
33controlled substances or other drugs.

34(k) “Military and veteran status” means a member or veteran
35of the United States Armed Forces, United States Armed Forces
36Reserve, the United States National Guard, and the California
37National Guard.

38(l) “On the bases enumerated in this part” means or refers to
39discrimination on the basis of one or more of the following: race,
40religious creed, color, national origin, ancestry, physical disability,
P5    1mental disability, medical condition, genetic information, marital
2status, sex, age, sexual orientation, or military and veteran status.

3(m) “Physical disability” includes, but is not limited to, all of
4the following:

5(1) Having any physiological disease, disorder, condition,
6cosmetic disfigurement, or anatomical loss that does both of the
7following:

8(A) Affects one or more of the following body systems:
9neurological, immunological, musculoskeletal, special sense
10organs, respiratory, including speech organs, cardiovascular,
11reproductive, digestive, genitourinary, hemic and lymphatic, skin,
12and endocrine.

13(B) Limits a major life activity. For purposes of this section:

14(i) “Limits” shall be determined without regard to mitigating
15measures such as medications, assistive devices, prosthetics, or
16reasonable accommodations, unless the mitigating measure itself
17limits a major life activity.

18(ii) A physiological disease, disorder, condition, cosmetic
19disfigurement, or anatomical loss limits a major life activity if it
20makes the achievement of the major life activity difficult.

21(iii) “Major life activities” shall be broadly construed and
22includes physical, mental, and social activities and working.

23(2) Any other health impairment not described in paragraph (1)
24that requires special education or related services.

25(3) Having a record or history of a disease, disorder, condition,
26cosmetic disfigurement, anatomical loss, or health impairment
27described in paragraph (1) or (2), which is known to the employer
28or other entity covered by this part.

29(4) Being regarded or treated by the employer or other entity
30covered by this part as having, or having had, any physical
31condition that makes achievement of a major life activity difficult.

32(5) Being regarded or treated by the employer or other entity
33covered by this part as having, or having had, a disease, disorder,
34condition, cosmetic disfigurement, anatomical loss, or health
35impairment that has no present disabling effect but may become
36a physical disability as described in paragraph (1) or (2).

37(6) “Physical disability” does not include sexual behavior
38disorders, compulsive gambling, kleptomania, pyromania, or
39psychoactive substance use disorders resulting from the current
40unlawful use of controlled substances or other drugs.

P6    1(n) Notwithstanding subdivisions (j) and (m), if the definition
2of “disability” used in the federal Americans with Disabilities Act
3of 1990 (Public Law 101-336) would result in broader protection
4of the civil rights of individuals with a mental disability or physical
5disability, as defined in subdivision (j) or (m), or would include
6any medical condition not included within those definitions, then
7that broader protection or coverage shall be deemed incorporated
8by reference into, and shall prevail over conflicting provisions of,
9the definitions in subdivisions (j) and (m).

10(o) “Race, religious creed, color, national origin, ancestry,
11physical disability, mental disability, medical condition, genetic
12information, marital status, sex, age, sexual orientation, or military
13and veteran status” includes a perception that the person has any
14of those characteristics or that the person is associated with a
15person who has, or is perceived to have, any of those
16 characteristics.

17(p) “Reasonable accommodation” may include either of the
18following:

19(1) Making existing facilities used by employees readily
20accessible to, and usable by, individuals with disabilities.

21(2) Job restructuring, part-time or modified work schedules,
22reassignment to a vacant position, acquisition or modification of
23equipment or devices, adjustment or modifications of examinations,
24training materials or policies, the provision of qualified readers or
25interpreters, and other similar accommodations for individuals
26with disabilities.

27(q) “Religious creed,” “religion,” “religious observance,”
28“religious belief,” and “creed” include all aspects of religious
29belief, observance, and practice, including religious dress and
30grooming practices. “Religious dress practice” shall be construed
31broadly to include the wearing or carrying of religious clothing,
32head or face coverings, jewelry, artifacts, and any other item that
33is part of the observance by an individual of his or her religious
34creed. “Religious grooming practice” shall be construed broadly
35to include all forms of head, facial, and body hair that are part of
36the observance by an individual of his or her religious creed.

37(r) (1) “Sex” includes, but is not limited to, the following:

38(A) Pregnancy or medical conditions related to pregnancy.

39(B) Childbirth or medical conditions related to childbirth.

40(C) Breastfeeding or medical conditions related to breastfeeding.

P7    1(2) “Sex” also includes, but is not limited to, a person’s gender.
2“Gender” means sex, and includes a person’s gender identity and
3gender expression. “Gender expression” means a person’s
4gender-related appearance and behavior whether or not
5stereotypically associated with the person’s assigned sex at birth.

6(s) “Sexual orientation” means heterosexuality, homosexuality,
7and bisexuality.

8(t) “Supervisor” means any individual having the authority, in
9the interest of the employer, to hire, transfer, suspend, lay off,
10recall, promote, discharge, assign, reward, or discipline other
11employees, or the responsibility to direct them, or to adjust their
12grievances, or effectively to recommend that action, if, in
13connection with the foregoing, the exercise of that authority is not
14of a merely routine or clerical nature, but requires the use of
15independent judgment.

16(u) “Undue hardship” means an action requiring significant
17difficulty or expense, when considered in light of the following
18factors:

19(1) The nature and cost of the accommodation needed.

20(2) The overall financial resources of the facilities involved in
21the provision of the reasonable accommodations, the number of
22persons employed at the facility, and the effect on expenses and
23resources or the impact otherwise of these accommodations upon
24the operation of the facility.

25(3) The overall financial resources of the covered entity, the
26overall size of the business of a covered entity with respect to the
27number of employees, and the number, type, and location of its
28facilities.

29(4) The type of operations, including the composition, structure,
30and functions of the workforce of the entity.

31(5) The geographic separateness or administrative or fiscal
32relationship of the facility or facilities.

33(v) “National origin” discrimination includes, but is not limited
34to, discrimination on the basis of possessing a driver’s license
35granted under Section 12801.9 of the Vehicle Code.



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