Bill Text: CA SB292 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Employment: sexual harassment.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2013-08-12 - Chaptered by Secretary of State. Chapter 88, Statutes of 2013. [SB292 Detail]

Download: California-2013-SB292-Introduced.html
BILL NUMBER: SB 292	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Corbett

                        FEBRUARY 14, 2013

   An act to amend Section 12940 of the Government Code, relating to
employment.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 292, as introduced, Corbett. Employment: sexual harassment.
   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, or sexual orientation.
   This bill would expand the definition of harassment because of sex
under these provisions to include threats of sexual violence and
specify that an act is sexual harassment regardless of the sexual
orientation, sexual desire, or intent of the harasser.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  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, or sexual orientation of any
person, to refuse to hire or employ the person or to refuse to
select the person for a training program leading to employment, or to
bar or to discharge the person from employment or from a training
program leading to employment, or to discriminate against the person
in compensation or in terms, conditions, or privileges of employment.

   (1) This part does not prohibit an employer from refusing to hire
or discharging an employee with a physical or mental disability, or
subject an employer to any legal liability resulting from the refusal
to employ or the discharge of an employee with a physical or mental
disability, where the employee, because of his or her physical or
mental disability, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those duties
in a manner that would not endanger his or her health or safety or
the health or safety of others even with reasonable accommodations.
   (2) This part does not prohibit an employer from refusing to hire
or discharging an employee who, because of the employee's medical
condition, is unable to perform his or her essential duties even with
reasonable accommodations, or cannot perform those duties in a
manner that would not endanger the employee's health or safety or the
health or safety of others even with reasonable accommodations.
Nothing in this part shall subject an employer to any legal liability
resulting from the refusal to employ or the discharge of an employee
who, because of the employee's medical condition, is unable to
perform his or her essential duties, or cannot perform those duties
in a manner that would not endanger the employee's health or safety
or the health or safety of others even with reasonable
accommodations.
   (3) Nothing in this part relating to discrimination on account of
marital status shall do either of the following:
   (A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.
   (B) Prohibit bona fide health plans from providing additional or
greater benefits to employees with dependents than to those employees
without or with fewer dependents.
   (4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam-era veterans.
   (5) (A) This part does not prohibit an employer from refusing to
employ an individual because of his or her age if the law compels or
provides for that refusal. Promotions within the existing staff,
hiring or promotion on the basis of experience and training, rehiring
on the basis of seniority and prior service with the employer, or
hiring under an established recruiting program from high schools,
colleges, universities, or trade schools do not, in and of
themselves, constitute unlawful employment practices.
   (B) The provisions of this part relating to discrimination on the
basis of age do not prohibit an employer from providing health
benefits or health care reimbursement plans to retired persons that
are altered, reduced, or eliminated when the person becomes eligible
for Medicare health benefits. This subparagraph applies to all
retiree health benefit plans and contractual provisions or practices
concerning retiree health benefits and health care reimbursement
plans in effect on or after January 1, 2011.
   (b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, or sexual
orientation 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, or sexual orientation of the person in the election
of officers of the labor organization or in the selection of the
labor organization's staff or to discriminate in any way against any
of its members or against any employer or against any person employed
by an employer.
   (c) For any person to discriminate against any person in the
selection or training of that person in any apprenticeship training
program or any other training program leading to employment because
of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation of the person discriminated
against.
   (d) For any employer or employment agency to print or circulate or
cause to be printed or circulated any publication, or to make any
nonjob-related inquiry of an employee or applicant, either verbal or
through use of an application form, that expresses, directly or
indirectly, any limitation, specification, or discrimination as to
race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation, or any intent to make any
such limitation, specification, or discrimination. This part does not
prohibit an employer or employment agency from inquiring into the
age of an applicant, or from specifying age limitations, where the
law compels or provides for that action.
   (e) (1) Except as provided in paragraph (2) or (3), for any
employer or employment agency to require any medical or psychological
examination of an applicant, to make any medical or psychological
inquiry of an applicant, to make any inquiry whether an applicant has
a mental disability or physical disability or medical condition, or
to make any inquiry regarding the nature or severity of a physical
disability, mental disability, or medical condition.
   (2) Notwithstanding paragraph (1), an employer or employment
agency may inquire into the ability of an applicant to perform
job-related functions and may respond to an applicant's request for
reasonable accommodation.
   (3) Notwithstanding paragraph (1), an employer or employment
agency may require a medical or psychological examination or make a
medical or psychological inquiry of a job applicant after an
employment offer has been made but prior to the commencement of
employment duties, provided that the examination or inquiry is job
related and consistent with business necessity and that all entering
employees in the same job classification are subject to the same
examination or inquiry.
   (f) (1) Except as provided in paragraph (2), for any employer or
employment agency to require any medical or psychological examination
of an employee, to make any medical or psychological inquiry of an
employee, to make any inquiry whether an employee has a mental
disability, physical disability, or medical condition, or to make any
inquiry regarding the nature or severity of a physical disability,
mental disability, or medical condition.
   (2) Notwithstanding paragraph (1), an employer or employment
agency may require any examinations or inquiries that it can show to
be job related and consistent with business necessity. An employer or
employment agency may conduct voluntary medical examinations,
including voluntary medical histories, which are part of an employee
health program available to employees at that worksite.
   (g) For any employer, labor organization, or employment agency to
harass, discharge, expel, or otherwise discriminate against any
person because the person has made a report pursuant to Section
11161.8 of the Penal Code that prohibits retaliation against hospital
employees who report suspected patient abuse by health facilities or
community care facilities.
   (h) For any employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
   (i) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts forbidden under this part, or to attempt to
do so.
   (j) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading to
employment, or any other person, because of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, or sexual
orientation, to harass an employee, an applicant, or a person
providing services pursuant to a contract. Harassment of an employee,
an applicant, or a person providing services pursuant to a contract
by an employee, other than an agent or supervisor, shall be unlawful
if the entity, or its agents or supervisors, knows or should have
known of this conduct and fails to take immediate and appropriate
corrective action. An employer may also be responsible for the acts
of nonemployees, with respect to sexual harassment of employees,
applicants, or persons providing services pursuant to a contract in
the workplace, where the employer, or its agents or supervisors,
knows or should have known of the conduct and fails to take immediate
and appropriate corrective action. In reviewing cases involving the
acts of nonemployees, the extent of the employer's control and any
other legal responsibility 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,  threats of sexual
violence,  and harassment based on pregnancy, childbirth, or
related medical conditions  , regardless of the sexual
orientation, sexual desire, or intent   of the harasser
 .
   (5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the
following criteria:
   (A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.

   (B) The person is customarily engaged in an independently
established business.
   (C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in
the course of the employer's work.
   (k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
   (l) (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 person's religious belief or observance and any
employment requirement, unless the employer or other entity covered
by this part demonstrates that it has explored any available
reasonable alternative means of accommodating the religious belief or
observance, including the possibilities of excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another time
or by another person, but is unable to reasonably accommodate the
religious belief or observance without undue hardship, as defined in
subdivision (t) 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 (p) of Section 12926.
   (2) An accommodation of an individual's 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.
   (m) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or mental
disability of an applicant or employee. Nothing in this subdivision
or in paragraph (1) or (2) of subdivision (a) shall be construed to
require an accommodation that is demonstrated by the employer or
other covered entity to produce undue hardship, as defined in
subdivision (t) of Section 12926, to its operation.
   (n) For an employer or other entity covered by this part to fail
to engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable
accommodation by an employee or applicant with a known physical or
mental disability or known medical condition.
   (o) For an employer or other entity covered by this part, to
subject, directly or indirectly, any employee, applicant, or other
person to a test for the presence of a genetic characteristic.
                  
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