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| 1 | + | CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION Assembly Bill No. 1938Introduced by Assembly Member BurkeJanuary 25, 2018 An act to amend Sections 12926 and 12940 of the Government Code, relating to discrimination. LEGISLATIVE COUNSEL'S DIGESTAB 1938, as introduced, Burke. Employment discrimination: familial status.Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment 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 military and veteran status. Existing law prohibits, among other things, an employer to make any nonjob-related inquiry, either verbally or on an application form, that expresses any limitation, specification, or limitation based upon, among other things, a persons race, religion, national origin, or gender.This bill would, in addition, prohibit an employer or other covered entity from making a nonjob-related injury to, or expressing any limitation, specification, or limitation based upon a persons familial status, as defined. The bill would make related findings and declarations. Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. (e) It is the intent of this legislation to clarify existing law and create more equity in work place for both men and women. SEC. 2. 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (g)(h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h)(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.(i)(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 that persons 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 that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j)(k) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(k)(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l)(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m)(n) 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)(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), (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 (j) and (m). (k) or (m).(o)(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p)(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q)(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r)(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s)(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t)(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u)(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v)(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.SEC. 3. Section 12940 of the Government Code is amended to read:12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.(e) (1) Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.(f) (1) Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.(4) (A) For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.(B) Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.(C) For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.(5) For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.(B) The person is customarily engaged in an independently established business.(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.(2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.(4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) (v) of Section 12926, to its operation.(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.(o) For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.(p) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law. | |
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| 3 | + | CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION Assembly Bill No. 1938Introduced by Assembly Member BurkeJanuary 25, 2018 An act to amend Sections 12926 and 12940 of the Government Code, relating to discrimination. LEGISLATIVE COUNSEL'S DIGESTAB 1938, as introduced, Burke. Employment discrimination: familial status.Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment 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 military and veteran status. Existing law prohibits, among other things, an employer to make any nonjob-related inquiry, either verbally or on an application form, that expresses any limitation, specification, or limitation based upon, among other things, a persons race, religion, national origin, or gender.This bill would, in addition, prohibit an employer or other covered entity from making a nonjob-related injury to, or expressing any limitation, specification, or limitation based upon a persons familial status, as defined. The bill would make related findings and declarations. Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO | |
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| 5 | - | Amended IN Assembly March 05, 2018 | |
| 6 | 5 | ||
| 7 | - | Amended IN Assembly March 05, 2018 | |
| 6 | + | ||
| 7 | + | ||
| 8 | 8 | ||
| 9 | 9 | CALIFORNIA LEGISLATURE 20172018 REGULAR SESSION | |
| 10 | 10 | ||
| 11 | 11 | Assembly Bill No. 1938 | |
| 12 | 12 | ||
| 13 | - | Introduced by Assembly Member | |
| 13 | + | Introduced by Assembly Member BurkeJanuary 25, 2018 | |
| 14 | 14 | ||
| 15 | - | Introduced by Assembly Member Burke | |
| 15 | + | Introduced by Assembly Member Burke | |
| 16 | 16 | January 25, 2018 | |
| 17 | 17 | ||
| 18 | 18 | An act to amend Sections 12926 and 12940 of the Government Code, relating to discrimination. | |
| 19 | 19 | ||
| 20 | 20 | LEGISLATIVE COUNSEL'S DIGEST | |
| 21 | 21 | ||
| 22 | 22 | ## LEGISLATIVE COUNSEL'S DIGEST | |
| 23 | 23 | ||
| 24 | - | AB 1938, as | |
| 24 | + | AB 1938, as introduced, Burke. Employment discrimination: familial status. | |
| 25 | 25 | ||
| 26 | - | Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment 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 military and veteran status. Existing law prohibits, among other things, an employer to make any | |
| 26 | + | Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment 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 military and veteran status. Existing law prohibits, among other things, an employer to make any nonjob-related inquiry, either verbally or on an application form, that expresses any limitation, specification, or limitation based upon, among other things, a persons race, religion, national origin, or gender.This bill would, in addition, prohibit an employer or other covered entity from making a nonjob-related injury to, or expressing any limitation, specification, or limitation based upon a persons familial status, as defined. The bill would make related findings and declarations. | |
| 27 | 27 | ||
| 28 | - | Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment 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 military and veteran status. Existing law prohibits, among other things, an employer to make any | |
| 28 | + | Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment 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 military and veteran status. Existing law prohibits, among other things, an employer to make any nonjob-related inquiry, either verbally or on an application form, that expresses any limitation, specification, or limitation based upon, among other things, a persons race, religion, national origin, or gender. | |
| 29 | 29 | ||
| 30 | - | This bill would, in addition, prohibit an employer or other covered entity | |
| 30 | + | This bill would, in addition, prohibit an employer or other covered entity from making a nonjob-related injury to, or expressing any limitation, specification, or limitation based upon a persons familial status, as defined. The bill would make related findings and declarations. | |
| 31 | 31 | ||
| 32 | 32 | ## Digest Key | |
| 33 | 33 | ||
| 34 | 34 | ## Bill Text | |
| 35 | 35 | ||
| 36 | - | The people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. (e) It is the intent of this legislation to clarify existing law and create more equity in work place | |
| 36 | + | The people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. (e) It is the intent of this legislation to clarify existing law and create more equity in work place for both men and women. SEC. 2. 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (g)(h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h)(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.(i)(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 that persons 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 that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j)(k) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(k)(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l)(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m)(n) 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)(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), (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 (j) and (m). (k) or (m).(o)(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p)(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q)(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r)(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s)(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t)(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u)(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v)(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.SEC. 3. Section 12940 of the Government Code is amended to read:12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.(e) (1) Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.(f) (1) Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.(4) (A) For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.(B) Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.(C) For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.(5) For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.(B) The person is customarily engaged in an independently established business.(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.(2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.(4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) (v) of Section 12926, to its operation.(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.(o) For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.(p) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law. | |
| 37 | 37 | ||
| 38 | 38 | The people of the State of California do enact as follows: | |
| 39 | 39 | ||
| 40 | 40 | ## The people of the State of California do enact as follows: | |
| 41 | 41 | ||
| 42 | - | SECTION 1. The Legislature finds and declares all of the following:(a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. (e) It is the intent of this legislation to clarify existing law and create more equity in work place | |
| 42 | + | SECTION 1. The Legislature finds and declares all of the following:(a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. (e) It is the intent of this legislation to clarify existing law and create more equity in work place for both men and women. | |
| 43 | 43 | ||
| 44 | - | SECTION 1. The Legislature finds and declares all of the following:(a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. (e) It is the intent of this legislation to clarify existing law and create more equity in work place | |
| 44 | + | SECTION 1. The Legislature finds and declares all of the following:(a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. (e) It is the intent of this legislation to clarify existing law and create more equity in work place for both men and women. | |
| 45 | 45 | ||
| 46 | 46 | SECTION 1. The Legislature finds and declares all of the following: | |
| 47 | 47 | ||
| 48 | 48 | ### SECTION 1. | |
| 49 | 49 | ||
| 50 | 50 | (a) Women make up 46 percent of the United States labor force, and nearly 81 percent of women in the United States have children. | |
| 51 | 51 | ||
| 52 | 52 | (b) Familial status discrimination is discrimination in the workplace based on an employees responsibility, real or perceived, to care for family members. Familial status questions during interviews can lead to discrimination and can deny employment or promotions because of the employees family responsibilities. | |
| 53 | 53 | ||
| 54 | 54 | (c) According to a recent survey titled Elephant in the Valley, 75 percent of the over 200 women surveyed said they had been asked questions about their familial status during interviews. | |
| 55 | 55 | ||
| 56 | 56 | (d) Women with children are most likely to encounter familial status discrimination. They are 79 percent less likely to be recommended for hire and hold just 15 percent of high-level positions in most industries, a figure thats scarcely budged since the 1990s. | |
| 57 | 57 | ||
| 58 | - | (e) It is the intent of this legislation to clarify existing law and create more equity in work place | |
| 58 | + | (e) It is the intent of this legislation to clarify existing law and create more equity in work place for both men and women. | |
| 59 | 59 | ||
| 60 | - | SEC. 2. 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(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 that persons 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 that persons 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 intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(n) 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.(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (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) or (m).(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 60 | + | SEC. 2. 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (g)(h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h)(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.(i)(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 that persons 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 that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j)(k) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(k)(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l)(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m)(n) 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)(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), (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 (j) and (m). (k) or (m).(o)(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p)(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q)(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r)(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s)(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t)(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u)(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v)(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 61 | 61 | ||
| 62 | 62 | SEC. 2. Section 12926 of the Government Code is amended to read: | |
| 63 | 63 | ||
| 64 | 64 | ### SEC. 2. | |
| 65 | 65 | ||
| 66 | - | 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(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 that persons 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 that persons 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 intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(n) 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.(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (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) or (m).(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 66 | + | 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (g)(h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h)(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.(i)(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 that persons 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 that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j)(k) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(k)(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l)(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m)(n) 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)(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), (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 (j) and (m). (k) or (m).(o)(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p)(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q)(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r)(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s)(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t)(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u)(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v)(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 67 | 67 | ||
| 68 | - | 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(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 that persons 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 that persons 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 intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(n) 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.(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (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) or (m).(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 68 | + | 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (g)(h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h)(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.(i)(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 that persons 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 that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j)(k) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(k)(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l)(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m)(n) 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)(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), (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 (j) and (m). (k) or (m).(o)(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p)(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q)(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r)(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s)(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t)(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u)(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v)(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 69 | 69 | ||
| 70 | - | 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(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 that persons 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 that persons 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 intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(n) 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.(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (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) or (m).(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 70 | + | 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 a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. (g)(h) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h)(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.(i)(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 that persons 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 that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j)(k) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(k)(l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l)(m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m)(n) 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)(o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), (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 (j) and (m). (k) or (m).(o)(p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p)(q) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q)(r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r)(s) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s)(t) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t)(u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u)(v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v)(w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 71 | 71 | ||
| 72 | 72 | ||
| 73 | 73 | ||
| 74 | 74 | 12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context: | |
| 75 | 75 | ||
| 76 | 76 | (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. | |
| 77 | 77 | ||
| 78 | 78 | (b) Age refers to the chronological age of any individual who has reached a 40th birthday. | |
| 79 | 79 | ||
| 80 | 80 | (c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. | |
| 81 | 81 | ||
| 82 | 82 | (d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows: | |
| 83 | 83 | ||
| 84 | 84 | Employer does not include a religious association or corporation not organized for private profit. | |
| 85 | 85 | ||
| 86 | 86 | (e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work. | |
| 87 | 87 | ||
| 88 | 88 | (f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position. | |
| 89 | 89 | ||
| 90 | 90 | (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: | |
| 91 | 91 | ||
| 92 | 92 | (A) The function may be essential because the reason the position exists is to perform that function. | |
| 93 | 93 | ||
| 94 | 94 | (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. | |
| 95 | 95 | ||
| 96 | 96 | (C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function. | |
| 97 | 97 | ||
| 98 | 98 | (2) Evidence of whether a particular function is essential includes, but is not limited to, the following: | |
| 99 | 99 | ||
| 100 | 100 | (A) The employers judgment as to which functions are essential. | |
| 101 | 101 | ||
| 102 | 102 | (B) Written job descriptions prepared before advertising or interviewing applicants for the job. | |
| 103 | 103 | ||
| 104 | 104 | (C) The amount of time spent on the job performing the function. | |
| 105 | 105 | ||
| 106 | 106 | (D) The consequences of not requiring the incumbent to perform the function. | |
| 107 | 107 | ||
| 108 | 108 | (E) The terms of a collective bargaining agreement. | |
| 109 | 109 | ||
| 110 | 110 | (F) The work experiences of past incumbents in the job. | |
| 111 | 111 | ||
| 112 | 112 | (G) The current work experience of incumbents in similar jobs. | |
| 113 | 113 | ||
| 114 | 114 | (g) Familial status means one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian. The protections afforded by this part against discrimination on the basis of familial status also apply to any individual who is pregnant, who is in the process of securing legal custody of any individual under 18 years of age, or who is in the process of being given care and custody of any individual under 18 years of age by a state or local governmental agency responsible for the welfare of children. | |
| 115 | 115 | ||
| 116 | + | (g) | |
| 117 | + | ||
| 118 | + | ||
| 119 | + | ||
| 116 | 120 | (h) (1) Genetic information means, with respect to any individual, information about any of the following: | |
| 117 | 121 | ||
| 118 | 122 | (A) The individuals genetic tests. | |
| 119 | 123 | ||
| 120 | 124 | (B) The genetic tests of family members of the individual. | |
| 121 | 125 | ||
| 122 | 126 | (C) The manifestation of a disease or disorder in family members of the individual. | |
| 123 | 127 | ||
| 124 | 128 | (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. | |
| 125 | 129 | ||
| 126 | 130 | (3) Genetic information does not include information about the sex or age of any individual. | |
| 127 | 131 | ||
| 132 | + | (h) | |
| 133 | + | ||
| 134 | + | ||
| 135 | + | ||
| 128 | 136 | (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. | |
| 137 | + | ||
| 138 | + | (i) | |
| 139 | + | ||
| 140 | + | ||
| 129 | 141 | ||
| 130 | 142 | (j) Medical condition means either of the following: | |
| 131 | 143 | ||
| 132 | 144 | (1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. | |
| 133 | 145 | ||
| 134 | 146 | (2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following: | |
| 135 | 147 | ||
| 136 | 148 | (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 that persons 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. | |
| 137 | 149 | ||
| 138 | 150 | (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 that persons 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. | |
| 151 | + | ||
| 152 | + | (j) | |
| 153 | + | ||
| 154 | + | ||
| 139 | 155 | ||
| 140 | 156 | (k) Mental disability includes, but is not limited to, all of the following: | |
| 141 | 157 | ||
| 142 | 158 | (1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section: | |
| 143 | 159 | ||
| 144 | 160 | (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. | |
| 145 | 161 | ||
| 146 | 162 | (B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult. | |
| 147 | 163 | ||
| 148 | 164 | (C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working. | |
| 149 | 165 | ||
| 150 | 166 | (2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services. | |
| 151 | 167 | ||
| 152 | 168 | (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. | |
| 153 | 169 | ||
| 154 | 170 | (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. | |
| 155 | 171 | ||
| 156 | 172 | (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). | |
| 157 | 173 | ||
| 158 | 174 | 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. | |
| 159 | 175 | ||
| 176 | + | (k) | |
| 177 | + | ||
| 178 | + | ||
| 179 | + | ||
| 160 | 180 | (l) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard. | |
| 161 | 181 | ||
| 182 | + | (l) | |
| 183 | + | ||
| 184 | + | ||
| 185 | + | ||
| 162 | 186 | (m) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. | |
| 187 | + | ||
| 188 | + | (m) | |
| 189 | + | ||
| 190 | + | ||
| 163 | 191 | ||
| 164 | 192 | (n) Physical disability includes, but is not limited to, all of the following: | |
| 165 | 193 | ||
| 166 | 194 | (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: | |
| 167 | 195 | ||
| 168 | 196 | (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. | |
| 169 | 197 | ||
| 170 | 198 | (B) Limits a major life activity. For purposes of this section: | |
| 171 | 199 | ||
| 172 | 200 | (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. | |
| 173 | 201 | ||
| 174 | 202 | (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. | |
| 175 | 203 | ||
| 176 | 204 | (iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working. | |
| 177 | 205 | ||
| 178 | 206 | (2) Any other health impairment not described in paragraph (1) that requires special education or related services. | |
| 179 | 207 | ||
| 180 | 208 | (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. | |
| 181 | 209 | ||
| 182 | 210 | (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. | |
| 183 | 211 | ||
| 184 | 212 | (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). | |
| 185 | 213 | ||
| 186 | 214 | (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. | |
| 187 | 215 | ||
| 188 | - | (o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (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) or (m). | |
| 216 | + | (n) | |
| 217 | + | ||
| 218 | + | ||
| 219 | + | ||
| 220 | + | (o) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), (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 (j) and (m). (k) or (m). | |
| 221 | + | ||
| 222 | + | (o) | |
| 223 | + | ||
| 224 | + | ||
| 189 | 225 | ||
| 190 | 226 | (p) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. | |
| 227 | + | ||
| 228 | + | (p) | |
| 229 | + | ||
| 230 | + | ||
| 191 | 231 | ||
| 192 | 232 | (q) Reasonable accommodation may include either of the following: | |
| 193 | 233 | ||
| 194 | 234 | (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. | |
| 195 | 235 | ||
| 196 | 236 | (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. | |
| 197 | 237 | ||
| 238 | + | (q) | |
| 239 | + | ||
| 240 | + | ||
| 241 | + | ||
| 198 | 242 | (r) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed. | |
| 243 | + | ||
| 244 | + | (r) | |
| 245 | + | ||
| 246 | + | ||
| 199 | 247 | ||
| 200 | 248 | (s) (1) Sex includes, but is not limited to, the following: | |
| 201 | 249 | ||
| 202 | 250 | (A) Pregnancy or medical conditions related to pregnancy. | |
| 203 | 251 | ||
| 204 | 252 | (B) Childbirth or medical conditions related to childbirth. | |
| 205 | 253 | ||
| 206 | 254 | (C) Breastfeeding or medical conditions related to breastfeeding. | |
| 207 | 255 | ||
| 208 | 256 | (2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth. | |
| 209 | 257 | ||
| 258 | + | (s) | |
| 259 | + | ||
| 260 | + | ||
| 261 | + | ||
| 210 | 262 | (t) Sexual orientation means heterosexuality, homosexuality, and bisexuality. | |
| 211 | 263 | ||
| 264 | + | (t) | |
| 265 | + | ||
| 266 | + | ||
| 267 | + | ||
| 212 | 268 | (u) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. | |
| 269 | + | ||
| 270 | + | (u) | |
| 271 | + | ||
| 272 | + | ||
| 213 | 273 | ||
| 214 | 274 | (v) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors: | |
| 215 | 275 | ||
| 216 | 276 | (1) The nature and cost of the accommodation needed. | |
| 217 | 277 | ||
| 218 | 278 | (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. | |
| 219 | 279 | ||
| 220 | 280 | (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. | |
| 221 | 281 | ||
| 222 | 282 | (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. | |
| 223 | 283 | ||
| 224 | 284 | (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities. | |
| 225 | 285 | ||
| 286 | + | (v) | |
| 287 | + | ||
| 288 | + | ||
| 289 | + | ||
| 226 | 290 | (w) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. | |
| 227 | 291 | ||
| 228 | - | SEC. 3. Section 12940 of the Government Code is amended to read:12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) | |
| 292 | + | SEC. 3. Section 12940 of the Government Code is amended to read:12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.(e) (1) Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.(f) (1) Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.(4) (A) For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.(B) Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.(C) For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.(5) For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.(B) The person is customarily engaged in an independently established business.(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.(2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.(4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) (v) of Section 12926, to its operation.(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.(o) For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.(p) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law. | |
| 229 | 293 | ||
| 230 | 294 | SEC. 3. Section 12940 of the Government Code is amended to read: | |
| 231 | 295 | ||
| 232 | 296 | ### SEC. 3. | |
| 233 | 297 | ||
| 234 | - | 12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) | |
| 298 | + | 12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.(e) (1) Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.(f) (1) Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.(4) (A) For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.(B) Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.(C) For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.(5) For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.(B) The person is customarily engaged in an independently established business.(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.(2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.(4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) (v) of Section 12926, to its operation.(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.(o) For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.(p) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law. | |
| 235 | 299 | ||
| 236 | - | 12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) | |
| 300 | + | 12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.(e) (1) Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.(f) (1) Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.(4) (A) For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.(B) Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.(C) For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.(5) For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.(B) The person is customarily engaged in an independently established business.(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.(2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.(4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) (v) of Section 12926, to its operation.(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.(o) For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.(p) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law. | |
| 237 | 301 | ||
| 238 | - | 12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) | |
| 302 | + | 12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.(3) 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 the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.(d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.(e) (1) Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.(f) (1) Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.(4) (A) For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.(B) Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.(C) For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.(5) For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.(B) The person is customarily engaged in an independently established business.(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.(2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.(4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) (v) of Section 12926, to its operation.(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.(n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.(o) For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.(p) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law. | |
| 239 | 303 | ||
| 240 | 304 | ||
| 241 | 305 | ||
| 242 | 306 | 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: | |
| 243 | 307 | ||
| 244 | 308 | (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. | |
| 245 | 309 | ||
| 246 | 310 | (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, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. | |
| 247 | 311 | ||
| 248 | 312 | (2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. | |
| 249 | 313 | ||
| 250 | 314 | (3) Nothing in this part relating to discrimination on account of marital status shall do either of the following: | |
| 251 | 315 | ||
| 252 | 316 | (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. | |
| 253 | 317 | ||
| 254 | 318 | (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. | |
| 255 | 319 | ||
| 256 | 320 | (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. | |
| 257 | 321 | ||
| 258 | 322 | (5) (A) This part does not prohibit an employer from refusing to employ an individual because of the individuals 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. | |
| 259 | 323 | ||
| 260 | 324 | (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. | |
| 261 | 325 | ||
| 262 | 326 | (b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer. | |
| 263 | 327 | ||
| 264 | 328 | (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against. | |
| 265 | 329 | ||
| 266 | - | (d) (1) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action. | |
| 267 | - | ||
| 268 | - | (2) Nothing in the changes to this part by the act adding this paragraph shall be interpreted as preventing an employer from receiving familial status information from a prospective employee that is given voluntarily and without prompting. | |
| 330 | + | (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action. | |
| 269 | 331 | ||
| 270 | 332 | (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. | |
| 271 | 333 | ||
| 272 | 334 | (2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation. | |
| 273 | 335 | ||
| 274 | 336 | (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. | |
| 275 | 337 | ||
| 276 | 338 | (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. | |
| 277 | 339 | ||
| 278 | 340 | (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. | |
| 279 | 341 | ||
| 280 | 342 | (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. | |
| 281 | 343 | ||
| 282 | 344 | (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. | |
| 283 | 345 | ||
| 284 | 346 | (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. | |
| 285 | 347 | ||
| 286 | 348 | (j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. | |
| 287 | 349 | ||
| 288 | 350 | (2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment. | |
| 289 | 351 | ||
| 290 | 352 | (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. | |
| 291 | 353 | ||
| 292 | 354 | (4) (A) For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision. | |
| 293 | 355 | ||
| 294 | 356 | (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. | |
| 295 | 357 | ||
| 296 | 358 | (C) For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire. | |
| 297 | 359 | ||
| 298 | 360 | (5) For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria: | |
| 299 | 361 | ||
| 300 | 362 | (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. | |
| 301 | 363 | ||
| 302 | 364 | (B) The person is customarily engaged in an independently established business. | |
| 303 | 365 | ||
| 304 | 366 | (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work. | |
| 305 | 367 | ||
| 306 | 368 | (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. | |
| 307 | 369 | ||
| 308 | - | (l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry. | |
| 370 | + | (l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) (v) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) (r) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry. | |
| 309 | 371 | ||
| 310 | 372 | (2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public. | |
| 311 | 373 | ||
| 312 | 374 | (3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code. | |
| 313 | 375 | ||
| 314 | 376 | (4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted. | |
| 315 | 377 | ||
| 316 | - | (m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (v) of Section 12926, to its operation. | |
| 378 | + | (m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) (v) of Section 12926, to its operation. | |
| 317 | 379 | ||
| 318 | 380 | (2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted. | |
| 319 | 381 | ||
| 320 | 382 | (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. | |
| 321 | 383 | ||
| 322 | 384 | (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. | |
| 323 | 385 | ||
| 324 | 386 | (p) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law. |