Bill Text: CA AB1964 | 2011-2012 | Regular Session | Chaptered


Bill Title: Discrimination in employment: reasonable accommodations.

Spectrum: Strong Partisan Bill (Democrat 12-1)

Status: (Passed) 2012-09-08 - Chaptered by Secretary of State - Chapter 287, Statutes of 2012. [AB1964 Detail]

Download: California-2011-AB1964-Chaptered.html
BILL NUMBER: AB 1964	CHAPTERED
	BILL TEXT

	CHAPTER  287
	FILED WITH SECRETARY OF STATE  SEPTEMBER 8, 2012
	APPROVED BY GOVERNOR  SEPTEMBER 8, 2012
	PASSED THE SENATE  AUGUST 27, 2012
	PASSED THE ASSEMBLY  AUGUST 29, 2012
	AMENDED IN SENATE  AUGUST 21, 2012
	AMENDED IN SENATE  JUNE 18, 2012
	AMENDED IN ASSEMBLY  APRIL 30, 2012
	AMENDED IN ASSEMBLY  APRIL 16, 2012
	AMENDED IN ASSEMBLY  MARCH 29, 2012

INTRODUCED BY   Assembly Member Yamada
   (Coauthors: Assembly Members Allen, Cedillo, Dickinson, Fong, and
Bonnie Lowenthal)
   (Coauthors: Senators Corbett, DeSaulnier, La Malfa, Lieu, Rubio,
Steinberg, and Yee)

                        FEBRUARY 23, 2012

   An act to amend Sections 12926 and 12940 of the Government Code,
relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1964, Yamada. Discrimination in employment: reasonable
accommodations.
   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 or
abridgment on account of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, or sexual orientation.
Specifically, an employer or other covered entity is required to
reasonably accommodate the religious belief or observance of an
individual unless the accommodation would be an undue hardship on the
conduct of the business of the employer or other entity.
   This bill would include a religious dress practice or a religious
grooming practice as a belief or observance covered by the
protections against religious discrimination, and would specify that
an accommodation of an individual's religious dress practice or
religious grooming practice that would require that person to be
segregated from the public or other employees is not a reasonable
accommodation. This bill would further provide that no accommodation
is required if an accommodation would result in the violation of
specified laws protecting civil rights.
   This bill would incorporate additional changes in Section 12926 of
the Government Code, proposed by AB 2386, to be operative only if AB
2386 and this bill are both chaptered and become effective January
1, 2013, and this bill is chaptered last.



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

  SECTION 1.  Section 12926 of the Government Code is amended to
read:
   12926.  As used in this part in connection with unlawful
practices, unless a different meaning clearly appears from the
context:
   (a) "Affirmative relief" or "prospective relief" includes the
authority to order reinstatement of an employee, awards of backpay,
reimbursement of out-of-pocket expenses, hiring, transfers,
reassignments, grants of tenure, promotions, cease and desist orders,
posting of notices, training of personnel, testing, expunging of
records, reporting of records, and any other similar relief that is
intended to correct unlawful practices under this part.
   (b) "Age" refers to the chronological age of any individual who
has reached his or her 40th birthday.
   (c) "Employee" does not include any individual employed by his or
her parents, spouse, or child, or any individual employed under a
special license in a nonprofit sheltered workshop or rehabilitation
facility.
   (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 for his or her expertise or ability to
perform the particular function.
   (2) Evidence of whether a particular function is essential
includes, but is not limited to, the following:
   (A) The employer's judgment as to which functions are essential.
   (B) Written job descriptions prepared before advertising or
interviewing applicants for the job.
   (C) The amount of time spent on the job performing the function.
   (D) The consequences of not requiring the incumbent to perform the
function.
   (E) The terms of a collective bargaining agreement.
   (F) The work experiences of past incumbents in the job.
   (G) The current work experience of incumbents in similar jobs.
   (g) (1) "Genetic information" means, with respect to any
individual, information about any of the following:
   (A) The individual's genetic tests.
   (B) The genetic tests of family members of the individual.
   (C) The manifestation of a disease or disorder in family members
of the individual.
   (2) "Genetic information" includes any request for, or receipt of,
genetic services, or participation in clinical research that
includes genetic services, by an individual or any family member of
the individual.
   (3) "Genetic information" does not include information about the
sex or age of any individual.
   (h) "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) "Medical condition" means either of the following:
   (1) Any health impairment related to or associated with a
diagnosis of cancer or a record or history of cancer.
   (2) Genetic characteristics. For purposes of this section,
"genetic characteristics" means either of the following:
   (A) Any scientifically or medically identifiable gene or
chromosome, or combination or alteration thereof, that is known to be
a cause of a disease or disorder in a person or his or her
offspring, or that is determined to be associated with a
statistically increased risk of development of a disease or disorder,
and that is presently not associated with any symptoms of any
disease or disorder.
   (B) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any symptoms of any disease or disorder.
   (j) "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) "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, or sexual orientation.
   (l) "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.
   (m) Notwithstanding subdivisions (j) and (l), if the definition of
"disability" used in the federal Americans with Disabilities Act of
1990 (P.L. 101-336) would result in broader protection of the civil
rights of individuals with a mental disability or physical
disability, as defined in subdivision (j) or (l), 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 (l).
   (n) "Race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, age, or sexual orientation"
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.
   (o) "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.
   (p) "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 the observance by an individual of his or her religious
creed. "Religious grooming practice" shall be construed broadly to
include all forms of head, facial, and body hair that are part of the
observance by an individual of his or her religious creed.
   (q) "Sex" includes, but is not limited to, pregnancy, childbirth,
or medical conditions related to pregnancy or childbirth. "Sex" also
includes, but is not limited to, a person's gender. "Gender" means
sex, and includes a person's gender identity and gender expression.
"Gender expression" means a person's gender-related appearance and
behavior whether or not stereotypically associated with the person's
assigned sex at birth.
   (r) "Sexual orientation" means heterosexuality, homosexuality, and
bisexuality.
   (s) "Supervisor" means any individual having the authority, in the
interest of the employer, to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to direct them, or to adjust their
grievances, or effectively to recommend that action, if, in
connection with the foregoing, the exercise of that authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.
   (t) "Undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the following
factors:
   (1) The nature and cost of the accommodation needed.
   (2) The overall financial resources of the facilities involved in
the provision of the reasonable accommodations, the number of persons
employed at the facility, and the effect on expenses and resources
or the impact otherwise of these accommodations upon the operation of
the facility.
   (3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the
number of employees, and the number, type, and location of its
facilities.
   (4) The type of operations, including the composition, structure,
and functions of the workforce of the entity.
   (5) The geographic separateness, administrative, or fiscal
relationship of the facility or facilities.
  SEC. 1.5.  Section 12926 of the Government Code is amended to read:

   12926.  As used in this part in connection with unlawful
practices, unless a different meaning clearly appears from the
context:
   (a) "Affirmative relief" or "prospective relief" includes the
authority to order reinstatement of an employee, awards of backpay,
reimbursement of out-of-pocket expenses, hiring, transfers,
reassignments, grants of tenure, promotions, cease and desist orders,
posting of notices, training of personnel, testing, expunging of
records, reporting of records, and any other similar relief that is
intended to correct unlawful practices under this part.
   (b) "Age" refers to the chronological age of any individual who
has reached his or her 40th birthday.
   (c) "Employee" does not include any individual employed by his or
her parents, spouse, or child, or any individual employed under a
special license in a nonprofit sheltered workshop or rehabilitation
facility.
   (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 for his or her expertise or ability to
perform the particular function.
   (2) Evidence of whether a particular function is essential
includes, but is not limited to, the following:
   (A) The employer's judgment as to which functions are essential.
   (B) Written job descriptions prepared before advertising or
interviewing applicants for the job.
   (C) The amount of time spent on the job performing the function.
   (D) The consequences of not requiring the incumbent to perform the
function.
   (E) The terms of a collective bargaining agreement.
   (F) The work experiences of past incumbents in the job.
   (G) The current work experience of incumbents in similar jobs.
   (g) (1) "Genetic information" means, with respect to any
individual, information about any of the following:
   (A) The individual's genetic tests.
   (B) The genetic tests of family members of the individual.
   (C) The manifestation of a disease or disorder in family members
of the individual.
   (2) "Genetic information" includes any request for, or receipt of,
genetic services, or participation in clinical research that
includes genetic services, by an individual or any family member of
the individual.
   (3) "Genetic information" does not include information about the
sex or age of any individual.
   (h) "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) "Medical condition" means either of the following:
   (1) Any health impairment related to or associated with a
diagnosis of cancer or a record or history of cancer.
   (2) Genetic characteristics. For purposes of this section,
"genetic characteristics" means either of the following:
   (A) Any scientifically or medically identifiable gene or
chromosome, or combination or alteration thereof, that is known to be
a cause of a disease or disorder in a person or his or her
offspring, or that is determined to be associated with a
statistically increased risk of development of a disease or disorder,
and that is presently not associated with any symptoms of any
disease or disorder.
   (B) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any symptoms of any disease or disorder.
   (j) "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) "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, or sexual orientation.
   (l) "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.
   (m) Notwithstanding subdivisions (j) and (l), if the definition of
"disability" used in the federal Americans with Disabilities Act of
1990 (P.L. 101-336) would result in broader protection of the civil
rights of individuals with a mental disability or physical
disability, as defined in subdivision (j) or (l), 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 (l).
   (n) "Race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, age, or sexual orientation"
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.
   (o) "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.
   (p) "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 the observance by an individual of his or her religious
creed. "Religious grooming practice" shall be construed broadly to
include all forms of head, facial, and body hair that are part of the
observance by an individual of his or her religious creed.
   (q) (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 person's gender.
"Gender" means sex, and includes a person's gender identity and
gender expression. "Gender expression" means a person's
gender-related appearance and behavior whether or not stereotypically
associated with the person's assigned sex at birth.
   (r) "Sexual orientation" means heterosexuality, homosexuality, and
bisexuality.
   (s) "Supervisor" means any individual having the authority, in the
interest of the employer, to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to direct them, or to adjust their
grievances, or effectively to recommend that action, if, in
connection with the foregoing, the exercise of that authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.
   (t) "Undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the following
factors:
   (1) The nature and cost of the accommodation needed.
   (2) The overall financial resources of the facilities involved in
the provision of the reasonable accommodations, the number of persons
employed at the facility, and the effect on expenses and resources
or the impact otherwise of these accommodations upon the operation of
the facility.
   (3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the
number of employees, and the number, type, and location of its
facilities.
   (4) The type of operations, including the composition, structure,
and functions of the workforce of the entity.
   (5) The geographic separateness, administrative, or fiscal
relationship of the facility or facilities.
  SEC. 2.  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, and harassment based
on pregnancy, childbirth, or related medical conditions.
   (5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the
following criteria:
   (A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.

   (B) The person is customarily engaged in an independently
established business.
   (C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in
the course of the employer's work.
   (k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
   (l) (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.
  SEC. 3.  Section 1.5 of this bill incorporates amendments to
Section 12926 of the Government Code proposed by both this bill and
AB 2386. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2013, (2) each bill
amends Section 12926 of the Government Code, and (3) this bill is
enacted after AB 2386, in which case Section 1 of this bill shall not
become operative.   
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