Bill Text: CA SB559 | 2011-2012 | Regular Session | Chaptered
Bill Title: Discrimination: genetic information.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2011-09-06 - Chaptered by Secretary of State. Chapter 261, Statutes of 2011. [SB559 Detail]
Download: California-2011-SB559-Chaptered.html
BILL NUMBER: SB 559 CHAPTERED
BILL TEXT
CHAPTER 261
FILED WITH SECRETARY OF STATE SEPTEMBER 6, 2011
APPROVED BY GOVERNOR SEPTEMBER 6, 2011
PASSED THE SENATE AUGUST 22, 2011
PASSED THE ASSEMBLY AUGUST 18, 2011
AMENDED IN ASSEMBLY AUGUST 15, 2011
AMENDED IN ASSEMBLY JUNE 21, 2011
INTRODUCED BY Senator Padilla
(Coauthors: Assembly Members Atkins and Wieckowski)
FEBRUARY 17, 2011
An act to amend Section 23438 of the Business and Professions
Code, to amend Section 51 of the Civil Code, to amend Section 32228
of the Education Code, to amend Section 354.5 of the Elections Code,
to amend Sections 11135, 12920, 12921, 12926, 12926.1, 12930, 12931,
12935, 12940, 12944, 12955, 12955.8, 12956.1, 12956.2, and 12993 of
the Government Code, to amend Section 868.8 of the Penal Code, to
amend Sections 17269 and 24343.2 of the Revenue and Taxation Code,
and to amend Section 4900 of the Welfare and Institutions Code,
relating to civil rights.
LEGISLATIVE COUNSEL'S DIGEST
SB 559, Padilla. Discrimination: genetic information.
The Unruh Civil Rights Act generally prohibits business
establishments from discriminating on specified bases.
The California Fair Employment and Housing Act (FEHA) prohibits
discrimination in housing and employment on specified bases.
Existing law prohibits discrimination on specified bases against
any person in any program or activity conducted, operated, or
administered by the state or by any state agency, or that is funded
directly by the state, or that receives any financial assistance from
the state.
This bill would further prohibit discrimination under the
above-described provisions on the basis of genetic information, would
define that term, and would making conforming changes.
By expanding the bases upon which discrimination is prohibited
under the above-described provisions to include genetic information,
this bill would, except as specified, also expand the bases upon
which discrimination is prohibited under other antidiscrimination
provisions that prohibit discrimination on the same bases as provided
for in the above-described provisions.
Other antidiscrimination provisions include provisions pertaining
to the provision of emergency services. Specifically, existing law
prohibits the provision of emergency services and care in a health
facility from being based upon, or affected by, among other things,
any characteristic listed or defined in the Unruh Civil Rights Act.
Additionally, existing law provides that as a condition of licensure,
each hospital is required to adopt a policy prohibiting
discrimination in the provision of emergency services and care based
on, among other things, any characteristic listed or defined in the
Unruh Civil Rights Act. A violation of these provisions is a
misdemeanor.
By adding genetic information to the list of characteristics
listed in the Unruh Civil Rights Act, this bill would expand the
bases upon which a health facility may not discriminate in the
provision of emergency services. By expanding the definition of a
crime, this bill would impose a state-mandated local program.
Under FEHA, a person who holds an ownership interest of record in
property that he or she believes is the subject of an unlawfully
restrictive covenant based on race, color, religion, sex, sexual
orientation, familial status, marital status, disability, national
origin, source of income, or ancestry, may record a Restrictive
Covenant Modification, which existing law requires include a copy of
the original document with the illegal language stricken. Before
recording the modification document, existing law requires the county
recorder to submit the modification document and the original
document to the county counsel who is required to determine whether
the original document contains an unlawful restriction based on race,
color, religion, sex, sexual orientation, familial status, marital
status, disability, national origin, source of income, or ancestry.
This bill would require the county counsel, additionally, to
determine if there exists an unlawful restriction based on genetic
information after county counsel receives the modification document
and the original document from the county recorder.
Under existing law, a county recorder, title insurance company,
escrow company, real estate broker, real estate agent, or association
that provides a copy of a declaration, governing document, or deed
to any person is required to place a cover page or stamp on the
previously recorded document stating that if the document contains an
unlawful restriction, that restriction is void and may be removed by
recording a Restrictive Covenant Modification.
The bill would modify the information the county recorder is
required to provide on the above-described cover page or stamp to
reflect the changes this bill would make in prohibiting restrictions
on the basis of genetic information.
This bill would incorporate additional changes to Section 51 of
the Civil Code, Section 3228 of the Education Code, and Sections
12920, 12921, 12926, 12930, 12931, 12935, 12940, 12944, 12955,
12955.8, 12956.1, and 12956.2 of the Government Code, proposed by AB
887, to be operative only if AB 887 and this bill are both enacted,
both bills become effective on or before January 1, 2012, and this
bill is enacted last.
By creating new duties for county counsel and county recorders,
this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Deciphering the sequence of the human genome and other
advances in genetics open major new opportunities for medical
progress. New knowledge about the genetic basis of illness will allow
for earlier detection of illnesses, often long before symptoms have
begun.
(b) Genetic testing can allow individuals to take steps to reduce
the likelihood that they will contract a particular disorder. New
knowledge about genetics may allow for the development of better
therapies that are more effective against disease or have fewer side
effects than current treatments. These rapid advances promise
significant medical progress, but also give rise to the potential for
misuse of genetic information to discriminate.
(c) The early science of genetics became the basis of state laws
that provided for the sterilization of persons having presumed
genetic "defects" such as mental retardation, mental disease,
epilepsy, blindness, and hearing loss, among other conditions. The
first sterilization law was enacted in the State of Indiana in 1907.
California followed suit in 1909. Thirty states ultimately enacted
such laws that resulted in 64,000 people, most of whom were poor,
young women, being sterilized. Shamefully, nearly a third of these
sterilizations took place in California.
(d) Most state laws have since been repealed, and many have been
modified to include essential constitutional requirements of due
process and equal protection. However, the current explosion in the
science of genetics, and the history of sterilization laws by states
based on early genetic science, compels legislative action in this
area.
(e) Automation is exponentially increasing the speed and
efficiency of a complete genomic DNA sequence. What took five years
of international effort to produce in the mid-1980s can today be
completed in two minutes. Genomic sequencing is quickly approaching
the point where it will be widely affordable to the general public
and, potentially, a covered insurance benefit.
(f) Although genes are facially neutral markers, many genetic
conditions and disorders are associated with particular racial and
ethnic groups and gender. Because some genetic traits are most
prevalent in particular groups, members of a particular group may be
stigmatized or discriminated against as a result of that genetic
information.
(g) This form of discrimination was evident in the 1970s, which
saw the advent of programs to screen and identify carriers of sickle
cell anemia, a disease which afflicts African Americans. Once again,
state legislatures began to enact discriminatory laws in the area,
and in the early 1970s began mandating genetic screening of all
African Americans for sickle cell anemia, leading to discrimination
and unnecessary fear.
(h) Examples of genetic discrimination in the workplace include
the use of preemployment genetic screening at Lawrence Berkeley
Laboratory, which led to a court decision in favor of the employees
in that case, Norman-Bloodsaw v. Lawrence Berkeley Laboratory (9th
Cir. 1998) 135 F.3d 1260, 1269.
(i) The State of California has a compelling public interest in
realizing the medical promise of genomics. It also has a compelling
public interest in relieving the fear of discrimination and in
prohibiting its actual practice.
(j) Although Congress enacted the federal Genetic Information and
Nondiscrimination Act of 2008 (P.L. 110-233), its range of
protections is incomplete for Californians.
SEC. 2. Section 23438 of the Business and Professions Code is
amended to read:
23438. (a) Any alcoholic beverage club licensee which restricts
membership or the use of its services or facilities on the basis of
ancestry or any characteristic listed or defined in Section 11135 of
the Government Code, except for genetic information, shall, when
issuing a receipt for expenses which may otherwise be used by
taxpayers for deduction purposes pursuant to Section 162(a) of the
Internal Revenue Code, for purposes of the Personal Income Tax Law,
or Section 24343 of the Revenue and Taxation Code, for purposes of
the Bank and Corporation Tax Law, incorporate a printed statement on
the receipt as follows:
"The expenditures covered by this receipt are nondeductible for
state income tax purposes or franchise tax purposes."
(b) For purposes of this section, the following terms have the
following meanings:
(1) "Expenses" means expenses, as defined in Section 17269 or
24343.2 of the Revenue and Taxation Code.
(2) "Club" means a club holding an alcoholic beverage license
pursuant to the provisions of this division, except a club holding an
alcoholic beverage license pursuant to Section 23425.
SEC. 3. Section 51 of the Civil Code is amended to read:
51. (a) This section shall be known, and may be cited, as the
Unruh Civil Rights Act.
(b) All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion,
ancestry, national origin, disability, medical condition, genetic
information, marital status, or sexual orientation are entitled to
the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever.
(c) This section shall not be construed to confer any right or
privilege on a person that is conditioned or limited by law or that
is applicable alike to persons of every sex, race, color, religion,
ancestry, national origin, disability, medical condition, marital
status, or sexual orientation or to persons regardless of their
genetic information.
(d) Nothing in this section shall be construed to require any
construction, alteration, repair, structural or otherwise, or
modification of any sort whatsoever, beyond that construction,
alteration, repair, or modification that is otherwise required by
other provisions of law, to any new or existing establishment,
facility, building, improvement, or any other structure, nor shall
anything in this section be construed to augment, restrict, or alter
in any way the authority of the State Architect to require
construction, alteration, repair, or modifications that the State
Architect otherwise possesses pursuant to other laws.
(e) For purposes of this section:
(1) "Disability" means any mental or physical disability as
defined in Sections 12926 and 12926.1 of the Government Code.
(2) (A) "Genetic information" means, with respect to any
individual, information about any of the following:
(i) The individual's genetic tests.
(ii) The genetic tests of family members of the individual.
(iii) The manifestation of a disease or disorder in family members
of the individual.
(B) "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.
(C) "Genetic information" does not include information about the
sex or age of any individual.
(3) "Medical condition" has the same meaning as defined in
subdivision (h) of Section 12926 of the Government Code.
(4) "Religion" includes all aspects of religious belief,
observance, and practice.
(5) "Sex" has the same meaning as defined in subdivision (p) of
Section 12926 of the Government Code.
(6) "Sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital status,
or sexual orientation" includes a perception that the person has any
particular characteristic or characteristics within the listed
categories or that the person is associated with a person who has, or
is perceived to have, any particular characteristic or
characteristics within the listed categories.
(7) "Sexual orientation" has the same meaning as defined in
subdivision (r) of Section 12926 of the Government Code.
(f) A violation of the right of any individual under the federal
Americans with Disabilities Act of 1990 (P.L. 101-336) shall also
constitute a violation of this section.
SEC. 3.5. Section 51 of the Civil Code is amended to read:
51. (a) This section shall be known, and may be cited, as the
Unruh Civil Rights Act.
(b) All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion,
ancestry, national origin, disability, medical condition, genetic
information, marital status, or sexual orientation are entitled to
the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever.
(c) This section shall not be construed to confer any right or
privilege on a person that is conditioned or limited by law or that
is applicable alike to persons of every sex, color, race, religion,
ancestry, national origin, disability, medical condition, marital
status, or sexual orientation or to persons regardless of their
genetic information.
(d) Nothing in this section shall be construed to require any
construction, alteration, repair, structural or otherwise, or
modification of any sort whatsoever, beyond that construction,
alteration, repair, or modification that is otherwise required by
other provisions of law, to any new or existing establishment,
facility, building, improvement, or any other structure, nor shall
anything in this section be construed to augment, restrict, or alter
in any way the authority of the State Architect to require
construction, alteration, repair, or modifications that the State
Architect otherwise possesses pursuant to other laws.
(e) For purposes of this section:
(1) "Disability" means any mental or physical disability as
defined in Sections 12926 and 12926.1 of the Government Code.
(2) (A) "Genetic information" means, with respect to any
individual, information about any of the following:
(i) The individual's genetic tests.
(ii) The genetic tests of family members of the individual.
(iii) The manifestation of a disease or disorder in family members
of the individual.
(B) "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.
(C) "Genetic information" does not include information about the
sex or age of any individual.
(3) "Medical condition" has the same meaning as defined in
subdivision (h) of Section 12926 of the Government Code.
(4) "Religion" includes all aspects of religious belief,
observance, and practice.
(5) "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.
(6) "Sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital status,
or sexual orientation" includes a perception that the person has any
particular characteristic or characteristics within the listed
categories or that the person is associated with a person who has, or
is perceived to have, any particular characteristic or
characteristics within the listed categories.
(7) "Sexual orientation" has the same meaning as defined in
subdivision (r) of Section 12926 of the Government Code.
(f) A violation of the right of any individual under the federal
Americans with Disabilities Act of 1990 (P.L. 101-336) shall also
constitute a violation of this section.
SEC. 4. Section 32228 of the Education Code is amended to read:
32228. (a) It is the intent of the Legislature that public
schools serving pupils in any of grades 8 to 12, inclusive, have
access to supplemental resources to establish programs and strategies
that promote school safety and emphasize violence prevention among
children and youth in the public schools.
(b) It is also the intent of the Legislature that public schools
have access to supplemental resources to combat bias on the basis of
race, color, religion, ancestry, national origin, disability, gender,
or sexual orientation, as defined in subdivision (r) of Section
12926 of the Government Code, and to prevent and respond to acts of
hate violence and bias related incidents. Sexual orientation shall
not include pedophilia.
(c) It is further the intent of the Legislature that schoolsites
receiving funds pursuant to this article accomplish all of the
following goals:
(1) Teach pupils techniques for resolving conflicts without
violence.
(2) Train school staff and administrators to support and promote
conflict resolution and mediation techniques for resolving conflicts
between and among pupils.
(3) Reduce incidents of violence at the schoolsite with an
emphasis on prevention and early detection.
(4) Provide age-appropriate instruction in domestic violence
prevention, dating violence prevention, and interpersonal violence
prevention.
SEC. 4.5. Section 32228 of the Education Code is amended to read:
32228. (a) It is the intent of the Legislature that public
schools serving pupils in any of grades 8 to 12, inclusive, have
access to supplemental resources to establish programs and strategies
that promote school safety and emphasize violence prevention among
children and youth in the public schools.
(b) It is also the intent of the Legislature that public schools
have access to supplemental resources to combat bias on the basis of
race, color, religion, ancestry, national origin, disability, gender,
gender identity, gender expression, or sexual orientation, as
defined in subdivision (r) of Section 12926 of the Government Code,
and to prevent and respond to acts of hate violence and bias-related
incidents. Sexual orientation shall not include pedophilia.
(c) It is further the intent of the Legislature that schoolsites
receiving funds pursuant to this article accomplish all of the
following goals:
(1) Teach pupils techniques for resolving conflicts without
violence.
(2) Train school staff and administrators to support and promote
conflict resolution and mediation techniques for resolving conflicts
between and among pupils.
(3) Reduce incidents of violence at the schoolsite with an
emphasis on prevention and early detection.
(4) Provide age-appropriate instruction in domestic violence
prevention, dating violence prevention, and interpersonal violence
prevention.
SEC. 5. Section 354.5 of the Elections Code is amended to read:
354.5. (a) "Signature" includes either of the following:
(1) A person's mark if the name of the person affixing the mark is
written near the mark by a witness over 18 years of age designated
by the person and the designee subscribes his or her own name as a
witness thereto. For purposes of this paragraph, a signature stamp
may be used as a mark, provided that the authorized user complies
with the provisions of this paragraph.
(2) An impression made by the use of a signature stamp pursuant to
the requirements specified in subdivision (c).
(b) A mark attested as provided in paragraph (1) of subdivision
(a), or an impression made by a signature stamp as provided in
paragraph (2) of subdivision (a), may serve as a signature for any
purpose specified in this code, including a sworn statement.
(c) An authorized user of a signature stamp may use it to affix a
signature to a document or writing any time that a signature is
required by this code, provided that all of the following conditions,
as applicable, are met:
(1) A signature stamp used to obtain a ballot or vote by mail
ballot in any local, state, or federal election shall be used only by
the authorized user of that signature stamp.
(2) A signature stamp shall be affixed by the authorized user in
the presence of the Secretary of State, his or her designee, the
local elections official, or his or her designee, to obtain a ballot,
in any local, state, or federal election unless the authorized user
of the signature stamp votes by vote by mail ballot. If the owner of
a signature stamp votes by vote by mail ballot, he or she shall affix
the signature stamp on the identification envelope in accordance
with Section 3019.
(d) A signature affixed with a signature stamp by an authorized
user in accordance with this section shall be treated in the same
manner as a signature made in writing.
(e) A registered voter or any person who is eligible to vote, who
qualifies as an authorized user pursuant to paragraph (1) of
subdivision (g), may use a signature stamp only after he or she first
submits his or her affidavit of registration or a new affidavit of
registration, whichever is applicable, in the presence of a county
elections official, using the signature stamp to sign the affidavit.
(f) The Secretary of State shall report to the Legislature not
later than January 1, 2009, regarding the use of signature stamps
during the 2008 elections.
(g) The following definitions apply for purposes of this section:
(1) "Authorized user" means either of the following:
(A) A person with a disability who, by reason of that disability,
is unable to write and who owns a signature stamp.
(B) A person using the signature stamp on behalf of the owner of
the stamp with the owner's express consent and in the presence of the
owner.
(2) "Disability" means a medical condition, mental disability, or
physical disability, as those terms are defined in subdivisions (i),
(j), and (l) of Section 12926 of the Government Code.
(3) "Signature stamp" means a stamp that contains the impression
of any of the following:
(A) The actual signature of a person with a disability.
(B) A mark or symbol that is adopted by the person with the
disability.
(C) A signature of the name of a person with a disability that is
made by another person and is adopted by the person with the
disability.
SEC. 6. Section 11135 of the Government Code is amended to read:
11135. (a) No person in the State of California shall, on the
basis of race, national origin, ethnic group identification,
religion, age, sex, sexual orientation, color, genetic information,
or disability, be unlawfully denied full and equal access to the
benefits of, or be unlawfully subjected to discrimination under, any
program or activity that is conducted, operated, or administered by
the state or by any state agency, is funded directly by the state, or
receives any financial assistance from the state. Notwithstanding
Section 11000, this section applies to the California State
University.
(b) With respect to discrimination on the basis of disability,
programs and activities subject to subdivision (a) shall meet the
protections and prohibitions contained in Section 202 of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and
the federal rules and regulations adopted in implementation thereof,
except that if the laws of this state prescribe stronger protections
and prohibitions, the programs and activities subject to subdivision
(a) shall be subject to the stronger protections and prohibitions.
(c) (1) As used in this section, "disability" means any mental or
physical disability, as defined in Section 12926.
(2) The Legislature finds and declares that the amendments made to
this act are declarative of existing law. The Legislature further
finds and declares that in enacting Senate Bill 105 of the 2001-02
Regular Session (Chapter 1102 of the Statutes of 2002), it was the
intention of the Legislature to apply subdivision (d) to the
California State University in the same manner that subdivisions (a),
(b), and (c) already applied to the California State University,
notwithstanding Section 11000. In clarifying that the California
State University is subject to paragraph (2) of subdivision (d), it
is not the intention of the Legislature to increase the cost of
developing or procuring electronic and information technology. The
California State University shall, however, in determining the cost
of developing or procuring electronic or information technology,
consider whether technology that meets the standards applicable
pursuant to paragraph (2) of subdivision (d) will reduce the
long-term cost incurred by the California State University in
providing access or accommodations to future users of this technology
who are persons with disabilities, as required by existing law,
including this section, Title II of the federal Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12101 and following), and
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sec. 794).
(d) (1) The Legislature finds and declares that the ability to
utilize electronic or information technology is often an essential
function for successful employment in the current work world.
(2) In order to improve accessibility of existing technology, and
therefore increase the successful employment of individuals with
disabilities, particularly blind and visually impaired and deaf and
hard-of-hearing persons, state governmental entities, in developing,
procuring, maintaining, or using electronic or information
technology, either indirectly or through the use of state funds by
other entities, shall comply with the accessibility requirements of
Section 508 of the federal Rehabilitation Act of 1973, as amended (29
U.S.C. Sec. 794d), and regulations implementing that act as set
forth in Part 1194 of Title 36 of the Federal Code of Regulations.
(3) Any entity that contracts with a state or local entity subject
to this section for the provision of electronic or information
technology or for the provision of related services shall agree to
respond to, and resolve any complaint regarding accessibility of its
products or services that is brought to the attention of the entity.
(e) As used in this section, "sex" and "sexual orientation" have
the same meanings as those terms are defined in subdivisions (q) and
(r) of Section 12926.
(f) As used in this section, "race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color, or
disability" includes a perception that a 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.
(g) As used in this section, "genetic information" has the same
definition as in paragraph (2) of subdivision (e) of Section 51 of
the Civil Code.
SEC. 7. Section 12920 of the Government Code is amended to read:
12920. It is hereby declared as the public policy of this state
that it is necessary to protect and safeguard 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, age, or sexual orientation.
It is recognized that the practice of denying employment
opportunity and discriminating in the terms of employment for these
reasons foments domestic strife and unrest, deprives the state of the
fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the interest of
employees, employers, and the public in general.
Further, the practice of discrimination because of race, color,
religion, sex, sexual orientation, marital status, national origin,
ancestry, familial status, source of income, disability, or genetic
information in housing accommodations is declared to be against
public policy.
It is the purpose of this part to provide effective remedies that
will eliminate these discriminatory practices.
This part shall be deemed an exercise of the police power of the
state for the protection of the welfare, health, and peace of the
people of this state.
SEC. 7.5. Section 12920 of the Government Code is amended to read:
12920. It is hereby declared as the public policy of this state
that it is necessary to protect and safeguard 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.
It is recognized that the practice of denying employment
opportunity and discriminating in the terms of employment for these
reasons foments domestic strife and unrest, deprives the state of the
fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the interests of
employees, employers, and the public in general.
Further, the practice of discrimination because of race, color,
religion, sex, gender, gender identity, gender expression, sexual
orientation, marital status, national origin, ancestry, familial
status, source of income, disability, or genetic information in
housing accommodations is declared to be against public policy.
It is the purpose of this part to provide effective remedies that
will eliminate these discriminatory practices.
This part shall be deemed an exercise of the police power of the
state for the protection of the welfare, health, and peace of the
people of this state.
SEC. 8. Section 12921 of the Government Code is amended to read:
12921. (a) The opportunity to seek, obtain, and hold employment
without discrimination because of race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, age, or
sexual orientation is hereby recognized as and declared to be a civil
right.
(b) The opportunity to seek, obtain, and hold housing without
discrimination because of race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, source of income, disability, genetic information, or any
other basis prohibited by Section 51 of the Civil Code is hereby
recognized as and declared to be a civil right.
SEC. 8.5. Section 12921 of the Government Code is amended to read:
12921. (a) The opportunity to seek, obtain, and hold employment
without discrimination 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 is
hereby recognized as and
declared to be a civil right.
(b) The opportunity to seek, obtain, and hold housing without
discrimination because of race, color, religion, sex, gender, gender
identity, gender expression, sexual orientation, marital status,
national origin, ancestry, familial status, source of income,
disability, genetic information, or any other basis prohibited by
Section 51 of the Civil Code is hereby recognized as and declared to
be a civil right.
SEC. 9. 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 mental retardation, 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.
(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, as defined in
Section 422.56 of the Penal Code.
(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, 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.
(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. 9.5. 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 mental retardation, 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.
(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, 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.
(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. 10. Section 12926.1 of the Government Code is amended to
read:
12926.1. The Legislature finds and declares as follows:
(a) The law of this state in the area of disabilities provides
protections independent from those in the federal Americans with
Disabilities Act of 1990 (P.L. 101-336). Although the federal act
provides a floor of protection, this state's law has always, even
prior to passage of the federal act, afforded additional protections.
(b) The law of this state contains broad definitions of physical
disability, mental disability, and medical condition. It is the
intent of the Legislature that the definitions of physical disability
and mental disability be construed so that applicants and employees
are protected from discrimination due to an actual or perceived
physical or mental impairment that is disabling, potentially
disabling, or perceived as disabling or potentially disabling.
(c) Physical and mental disabilities include, but are not limited
to, chronic or episodic conditions such as HIV/AIDS, hepatitis,
epilepsy, seizure disorder, diabetes, clinical depression, bipolar
disorder, multiple
sclerosis, and heart disease. In addition, the Legislature has
determined that the definitions of "physical disability" and "mental
disability" under the law of this state require a "limitation" upon a
major life activity, but do not require, as does the federal
Americans with Disabilities Act of 1990, a "substantial limitation."
This distinction is intended to result in broader coverage under the
law of this state than under that federal act. Under the law of this
state, whether a condition limits a major life activity shall be
determined without respect to any mitigating measures, unless the
mitigating measure itself limits a major life activity, regardless of
federal law under the Americans with Disabilities Act of 1990.
Further, under the law of this state, "working" is a major life
activity, regardless of whether the actual or perceived working
limitation implicates a particular employment or a class or broad
range of employments.
(d) Notwithstanding any interpretation of law in Cassista v.
Community Foods (1993) 5 Cal.4th 1050, the Legislature intends (1)
for state law to be independent of the federal Americans with
Disabilities Act of 1990, (2) to require a "limitation" rather than a
"substantial limitation" of a major life activity, and (3) by
enacting paragraph (4) of subdivision (j) and paragraph (4) of
subdivision (l) of Section 12926, to provide protection when an
individual is erroneously or mistakenly believed to have any physical
or mental condition that limits a major life activity.
(e) The Legislature affirms the importance of the interactive
process between the applicant or employee and the employer in
determining a reasonable accommodation, as this requirement has been
articulated by the Equal Employment Opportunity Commission in its
interpretive guidance of the federal Americans with Disabilities Act
of 1990.
SEC. 11. Section 12930 of the Government Code is amended to read:
12930. The department shall have the following functions, powers,
and duties:
(a) To establish and maintain a principal office and any other
offices within the state as are necessary to carry out the purposes
of this part.
(b) To meet and function at any place within the state.
(c) To appoint attorneys, investigators, conciliators, and other
employees as it may deem necessary, fix their compensation within the
limitations provided by law, and prescribe their duties.
(d) To obtain upon request and utilize the services of all
governmental departments and agencies and, in addition, with respect
to housing discrimination, of conciliation councils.
(e) To adopt, promulgate, amend, and rescind suitable rules and
regulations to carry out the functions and duties of the department
pursuant to this part.
(f) (1) To receive, investigate, and conciliate complaints
alleging practices made unlawful pursuant to Chapter 6 (commencing
with Section 12940).
(2) To receive, investigate, and conciliate complaints alleging a
violation of Section 51, 51.5, 51.7, 54, 54.1, or 54.2 of the Civil
Code. The remedies and procedures of this part shall be independent
of any other remedy or procedure that might apply.
(g) In connection with any matter under investigation or in
question before the department pursuant to a complaint filed under
Section 12960, 12961, or 12980:
(1) To issue subpoenas to require the attendance and testimony of
witnesses and the production of books, records, documents, and
physical materials.
(2) To administer oaths, examine witnesses under oath and take
evidence, and take depositions and affidavits.
(3) To issue written interrogatories.
(4) To request the production for inspection and copying of books,
records, documents, and physical materials.
(5) To petition the superior courts to compel the appearance and
testimony of witnesses, the production of books, records, documents,
and physical materials, and the answering of interrogatories.
(h) To issue accusations pursuant to Section 12965 or 12981 and to
prosecute those accusations before the commission.
(i) To issue those publications and those results of
investigations and research as in its judgment will tend to promote
good will and minimize or eliminate discrimination in employment on
the bases enumerated in this part and discrimination in housing
because of race, religious creed, color, sex, marital status,
national origin, ancestry, familial status, disability, genetic
information, or sexual orientation.
(j) To investigate, approve, certify, decertify, monitor, and
enforce nondiscrimination programs proposed by a contractor to be
engaged in pursuant to Section 12990.
(k) To render annually to the Governor and to the Legislature a
written report of its activities and of its recommendations.
SEC. 11.5. Section 12930 of the Government Code is amended to
read:
12930. The department shall have the following functions, powers,
and duties:
(a) To establish and maintain a principal office and any other
offices within the state as are necessary to carry out the purposes
of this part.
(b) To meet and function at any place within the state.
(c) To appoint attorneys, investigators, conciliators, and other
employees as it may deem necessary, fix their compensation within the
limitations provided by law, and prescribe their duties.
(d) To obtain upon request and utilize the services of all
governmental departments and agencies and, in addition, with respect
to housing discrimination, of conciliation councils.
(e) To adopt, promulgate, amend, and rescind suitable rules and
regulations to carry out the functions and duties of the department
pursuant to this part.
(f) (1) To receive, investigate, and conciliate complaints
alleging practices made unlawful pursuant to Chapter 6 (commencing
with Section 12940).
(2) To receive, investigate, and conciliate complaints alleging a
violation of Section 51, 51.5, 51.7, 54, 54.1, or 54.2 of the Civil
Code. The remedies and procedures of this part shall be independent
of any other remedy or procedure that might apply.
(g) In connection with any matter under investigation or in
question before the department pursuant to a complaint filed under
Section 12960, 12961, or 12980:
(1) To issue subpoenas to require the attendance and testimony of
witnesses and the production of books, records, documents, and
physical materials.
(2) To administer oaths, examine witnesses under oath and take
evidence, and take depositions and affidavits.
(3) To issue written interrogatories.
(4) To request the production for inspection and copying of books,
records, documents, and physical materials.
(5) To petition the superior courts to compel the appearance and
testimony of witnesses, the production of books, records, documents,
and physical materials, and the answering of interrogatories.
(h) To issue accusations pursuant to Section 12965 or 12981 and to
prosecute those accusations before the commission.
(i) To issue those publications and those results of
investigations and research as in its judgment will tend to promote
good will and minimize or eliminate discrimination in employment on
the bases enumerated in this part and discrimination in housing
because of race, religious creed, color, sex, gender, gender
identity, gender expression, marital status, national origin,
ancestry, familial status, disability, genetic information, or sexual
orientation.
(j) To investigate, approve, certify, decertify, monitor, and
enforce nondiscrimination programs proposed by a contractor to be
engaged in pursuant to Section 12990.
(k) To render annually to the Governor and to the Legislature a
written report of its activities and of its recommendations.
SEC. 12. Section 12931 of the Government Code is amended to read:
12931. The department may also provide assistance to communities
and persons therein in resolving disputes, disagreements, or
difficulties relating to discriminatory practices based on race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, familial status, age, or sexual
orientation that impair the rights of persons in those communities
under the Constitution or laws of the United States or of this state.
The services of the department may be made available in cases of
these disputes, disagreements, or difficulties only when, in its
judgment, peaceful relations among the citizens of the community
involved are threatened thereby. The department's services are to be
made available only upon the request of an appropriate state or local
public body, or upon the request of any person directly affected by
any such dispute, disagreement, or difficulty.
The assistance of the department pursuant to this section shall be
limited to endeavors at investigation, conference, conciliation, and
persuasion.
SEC. 12.5. Section 12931 of the Government Code is amended to
read:
12931. The department may also provide assistance to communities
and persons therein in resolving disputes, disagreements, or
difficulties relating to discriminatory practices based on race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, familial status, age, or sexual orientation that impair
the rights of persons in those communities under the Constitution or
laws of the United States or of this state. The services of the
department may be made available in cases of these disputes,
disagreements, or difficulties only when, in its judgment, peaceful
relations among the citizens of the community involved are threatened
thereby. The department's services are to be made available only
upon the request of an appropriate state or local public body, or
upon the request of any person directly affected by any such dispute,
disagreement, or difficulty.
The assistance of the department pursuant to this section shall be
limited to endeavors at investigation, conference, conciliation, and
persuasion.
SEC. 13. Section 12935 of the Government Code is amended to read:
12935. The commission shall have the following functions, powers,
and duties:
(a) To adopt, promulgate, amend, and rescind suitable rules,
regulations, and standards (1) to interpret, implement, and apply all
provisions of this part, (2) to regulate the conduct of hearings
held pursuant to Sections 12967 and 12981, and (3) to carry out all
other functions and duties of the commission pursuant to this part.
(b) To conduct hearings pursuant to Sections 12967 and 12981.
(c) To conduct mediations at the request of the department at any
time after a complaint is filed pursuant to Section 12960, 12961, or
12980. The department may withdraw a request for mediation at any
time to pursue an investigation.
(d) To establish and maintain a principal office within the state
and to meet and function at any place within the state.
(e) To appoint an executive secretary, and any attorneys and other
employees as it may deem necessary, fix their compensation within
the limitations provided by law, and prescribe their duties.
(f) To hold hearings, subpoena witnesses, compel their attendance,
administer oaths, examine any person under oath and, in connection
therewith, to require the production of any books or papers relating
to any matter under investigation or in question before the
commission.
(g) To create or provide financial or technical assistance to any
advisory agencies and conciliation councils, local or otherwise, as
in its judgment will aid in effectuating the purposes of this part,
and to empower them to study the problems of discrimination in all or
specific fields of human relationships or in particular instances of
employment discrimination on the bases enumerated in this part or in
specific instances of housing discrimination because of race,
religious creed, color, national origin, ancestry, familial status,
disability, genetic information, marital status, sex, or sexual
orientation and to foster, through community effort or otherwise,
good will, cooperation, and conciliation among the groups and
elements of the population of the state and to make recommendations
to the commission for the development of policies and procedures in
general. These advisory agencies and conciliation councils shall be
composed of representative citizens, serving without pay.
(h) With respect to findings and orders made pursuant to this
part, to establish a system of published opinions that shall serve as
precedent in interpreting and applying the provisions of this part.
Commission findings, orders, and opinions in an adjudicative
proceeding are subject to Section 11425.60.
(i) To issue publications and results of inquiries and research
that in its judgment will tend to promote good will and minimize or
eliminate unlawful discrimination. These publications shall include
an annual report to the Governor and the Legislature of its
activities and recommendations.
(j) Notwithstanding Sections 11370.3 and 11502, to appoint
administrative law judges, as it may deem necessary, to conduct
hearings and mediations. Each administrative law judge shall possess
the qualifications established by the State Personnel Board for the
particular class of position involved. The hearing officers of the
commission shall become administrative law judges on January 1, 2005.
SEC. 13.5. Section 12935 of the Government Code is amended to
read:
12935. The commission shall have the following functions, powers,
and duties:
(a) To adopt, promulgate, amend, and rescind suitable rules,
regulations, and standards (1) to interpret, implement, and apply all
provisions of this part, (2) to regulate the conduct of hearings
held pursuant to Sections 12967 and 12981, and (3) to carry out all
other functions and duties of the commission pursuant to this part.
(b) To conduct hearings pursuant to Sections 12967 and 12981.
(c) To conduct mediations at the request of the department at any
time after a complaint is filed pursuant to Section 12960, 12961, or
12980. The department may withdraw a request for mediation at any
time to pursue an investigation.
(d) To establish and maintain a principal office within the state
and to meet and function at any place within the state.
(e) To appoint an executive secretary, and any attorneys and other
employees as it may deem necessary, fix their compensation within
the limitations provided by law, and prescribe their duties.
(f) To hold hearings, subpoena witnesses, compel their attendance,
administer oaths, examine any person under oath and, in connection
therewith, to require the production of any books or papers relating
to any matter under investigation or in question before the
commission.
(g) To create or provide financial or technical assistance to any
advisory agencies and conciliation councils, local or otherwise, as
in its judgment will aid in effectuating the purposes of this part,
and to empower them to study the problems of discrimination in all or
specific fields of human relationships or in particular instances of
employment discrimination on the bases enumerated in this part or in
specific instances of housing discrimination because of race,
religious creed, color, national origin, ancestry, familial status,
disability, genetic information, marital status, sex, gender, gender
identity, gender expression, or sexual orientation and to foster,
through community effort or otherwise, good will, cooperation, and
conciliation among the groups and elements of the population of the
state and to make recommendations to the commission for the
development of policies and procedures in general. These advisory
agencies and conciliation councils shall be composed of
representative citizens, serving without pay.
(h) With respect to findings and orders made pursuant to this
part, to establish a system of published opinions that shall serve as
precedent in interpreting and applying the provisions of this part.
Commission findings, orders, and opinions in an adjudicative
proceeding are subject to Section 11425.60.
(i) To issue publications and results of inquiries and research
that in its judgment will tend to promote good will and minimize or
eliminate unlawful discrimination. These publications shall include
an annual report to the Governor and the Legislature of its
activities and recommendations.
(j) Notwithstanding Sections 11370.3 and 11502, to appoint
administrative law judges, as it may deem necessary, to conduct
hearings and mediations. Each administrative law judge shall possess
the qualifications established by the State Personnel Board for the
particular class of position involved. The hearing officers of the
commission shall become administrative law judges on January 1, 2005.
SEC. 14. 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, 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, 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, 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, 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
non-job-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, 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, 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 which 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 ) 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 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, and reasonable time necessary for travel prior and
subsequent to a religious observance.
(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 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. 14.5. 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
non-job-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 which 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 ) 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 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, and reasonable time necessary for travel prior and
subsequent to a religious observance.
(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 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. 15. Section 12944 of the Government Code is amended to read:
12944. (a) It shall be unlawful for a licensing board to require
any examination or establish any other qualification for licensing
that has an adverse impact on any class by virtue of its race, creed,
color, national origin or ancestry, sex, age, medical condition,
genetic information, physical disability, mental disability, or
sexual orientation, unless the practice can be demonstrated to be job
related.
Where the commission, after hearing, determines that an
examination is unlawful under this subdivision, the licensing board
may continue to use and rely on the examination until such time as
judicial review by the superior court of the determination is
exhausted.
If an examination or other qualification for licensing is
determined to be unlawful under this section, that determination
shall not void, limit, repeal, or otherwise affect any right,
privilege, status, or responsibility previously conferred upon any
person by the examination or by a license issued in reliance on the
examination or qualification.
(b) It shall be unlawful for a licensing board to fail or refuse
to make reasonable accommodation to an individual's mental or
physical disability or medical condition.
(c) It shall be unlawful for any licensing board, unless
specifically acting in accordance with federal equal employment
opportunity guidelines or regulations approved by the commission, to
print or circulate or cause to be printed or circulated any
publication, or to make any non-job-related inquiry, either verbal or
through use of an application form, which 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, sex, age, or sexual orientation or any intent to make
any such limitation, specification, or discrimination. Nothing in
this subdivision shall prohibit any licensing board from making, in
connection with prospective licensure or certification, an inquiry as
to, or a request for information regarding, the physical fitness of
applicants if that inquiry or request for information is directly
related and pertinent to the license or the licensed position the
applicant is applying for. Nothing in this subdivision shall prohibit
any licensing board, in connection with prospective examinations,
licensure, or certification, from inviting individuals with physical
or mental disabilities to request reasonable accommodations or from
making inquiries related to reasonable accommodations.
(d) It is unlawful for a licensing board to discriminate against
any person because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(e) It is unlawful for any licensing board to fail to keep records
of applications for licensing or certification for a period of two
years following the date of receipt of the applications.
(f) As used in this section, "licensing board" means any state
board, agency, or authority in the State and Consumer Services Agency
that has the authority to grant licenses or certificates which are
prerequisites to employment eligibility or professional status.
SEC. 15.5. Section 12944 of the Government Code is amended to
read:
12944. (a) It shall be unlawful for a licensing board to require
any examination or establish any other qualification for licensing
that has an adverse impact on any class by virtue of its race, creed,
color, national origin or ancestry, sex, gender, gender identity,
gender expression, age, medical condition, genetic information,
physical disability, mental disability, or sexual orientation, unless
the practice can be demonstrated to be job related.
Where the commission, after hearing, determines that an
examination is unlawful under this subdivision, the licensing board
may continue to use and rely on the examination until such time as
judicial review by the superior court of the determination is
exhausted.
If an examination or other qualification for licensing is
determined to be unlawful under this section, that determination
shall not void, limit, repeal, or otherwise affect any right,
privilege, status, or responsibility previously conferred upon any
person by the examination or by a license issued in reliance on the
examination or qualification.
(b) It shall be unlawful for a licensing board to fail or refuse
to make reasonable accommodation to an individual's mental or
physical disability or medical condition.
(c) It shall be unlawful for any licensing board, unless
specifically acting in accordance with federal equal employment
opportunity guidelines or regulations approved by the commission, to
print or circulate or cause to be printed or circulated any
publication, or to make any non-job-related inquiry, either verbal or
through use of an application form, which 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, sex, gender, gender identity, gender expression, age, or
sexual orientation or any intent to make any such limitation,
specification, or discrimination. Nothing in this subdivision shall
prohibit any licensing board from making, in connection with
prospective licensure or certification, an inquiry as to, or a
request for information regarding, the physical fitness of applicants
if that inquiry or request for information is directly related and
pertinent to the license or the licensed position the applicant is
applying for. Nothing in this subdivision shall prohibit any
licensing board, in connection with prospective examinations,
licensure, or certification, from inviting individuals with physical
or mental disabilities to request reasonable accommodations or from
making inquiries related to reasonable accommodations.
(d) It is unlawful for a licensing board to discriminate against
any person because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(e) It is unlawful for any licensing board to fail to keep records
of applications for licensing or certification for a period of two
years following the date of receipt of the applications.
(f) As used in this section, "licensing board" means any state
board, agency, or authority in the State and Consumer Services Agency
that has the authority to
grant licenses or certificates which are prerequisites to employment
eligibility or professional status.
SEC. 16. Section 12955 of the Government Code is amended to read:
12955. It shall be unlawful:
(a) For the owner of any housing accommodation to discriminate
against or harass any person because of the race, color, religion,
sex, sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability, or genetic information
of that person.
(b) For the owner of any housing accommodation to make or to cause
to be made any written or oral inquiry concerning the race, color,
religion, sex, sexual orientation, marital status, national origin,
ancestry, familial status, disability, or genetic information of any
person seeking to purchase, rent, or lease any housing accommodation.
(c) For any person to make, print, or publish, or cause to be
made, printed, or published any notice, statement, or advertisement,
with respect to the sale or rental of a housing accommodation that
indicates any preference, limitation, or discrimination based on
race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of income,
disability, or genetic information or an intention to make that
preference, limitation, or discrimination.
(d) For any person subject to the provisions of Section 51 of the
Civil Code, as that section applies to housing accommodations, to
discriminate against any person on the basis of sex, sexual
orientation, color, race, religion, ancestry, national origin,
familial status, marital status, disability, genetic information,
source of income, or on any other basis prohibited by that section.
Selection preferences based on age, imposed in connection with a
federally approved housing program, do not constitute age
discrimination in housing.
(e) For any person, bank, mortgage company or other financial
institution that provides financial assistance for the purchase,
organization, or construction of any housing accommodation to
discriminate against any person or group of persons because of the
race, color, religion, sex, sexual orientation, marital status,
national origin, ancestry, familial status, source of income,
disability, or genetic information in the terms, conditions, or
privileges relating to the obtaining or use of that financial
assistance.
(f) For any owner of housing accommodations to harass, evict, or
otherwise discriminate against any person in the sale or rental of
housing accommodations when the owner's dominant purpose is
retaliation against a person who has opposed practices unlawful under
this section, informed law enforcement agencies of practices
believed unlawful under this section, has testified or assisted in
any proceeding under this part, or has aided or encouraged a person
to exercise or enjoy the rights secured by this part. Nothing herein
is intended to cause or permit the delay of an unlawful detainer
action.
(g) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts or practices declared unlawful in this
section, or to attempt to do so.
(h) For any person, for profit, to induce any person to sell or
rent any dwelling by representations regarding the entry or
prospective entry into the neighborhood of a person or persons of a
particular race, color, religion, sex, sexual orientation, marital
status, ancestry, disability, genetic information, source of income,
familial status, or national origin.
(i) For any person or other organization or entity whose business
involves real estate-related transactions to discriminate against any
person in making available a transaction, or in the terms and
conditions of a transaction, because of race, color, religion, sex,
sexual orientation, marital status, national origin, ancestry, source
of income, familial status, disability, or genetic information.
(j) To deny a person access to, or membership or participation in,
a multiple listing service, real estate brokerage organization, or
other service because of race, color, religion, sex, sexual
orientation, marital status, ancestry, disability, genetic
information, familial status, source of income, or national origin.
(k) To otherwise make unavailable or deny a dwelling based on
discrimination because of race, color, religion, sex, sexual
orientation, familial status, source of income, disability, genetic
information, or national origin.
( l ) To discriminate through public or private land
use practices, decisions, and authorizations because of race, color,
religion, sex, sexual orientation, familial status, marital status,
disability, genetic information, national origin, source of income,
or ancestry. Discrimination includes, but is not limited to,
restrictive covenants, zoning laws, denials of use permits, and other
actions authorized under the Planning and Zoning Law (Title 7
(commencing with Section 65000)), that make housing opportunities
unavailable.
Discrimination under this subdivision also includes the existence
of a restrictive covenant, regardless of whether accompanied by a
statement that the restrictive covenant is repealed or void.
(m) As used in this section, "race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, source of income, disability, or genetic information"
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.
(n) To use a financial or income standard in the rental of housing
that fails to account for the aggregate income of persons residing
together or proposing to reside together on the same basis as the
aggregate income of married persons residing together or proposing to
reside together.
(o) In instances where there is a government rent subsidy, to use
a financial or income standard in assessing eligibility for the
rental of housing that is not based on the portion of the rent to be
paid by the tenant.
(p) (1) For the purposes of this section, "source of income" means
lawful, verifiable income paid directly to a tenant or paid to a
representative of a tenant. For the purposes of this section, a
landlord is not considered a representative of a tenant.
(2) For the purposes of this section, it shall not constitute
discrimination based on source of income to make a written or oral
inquiry concerning the level or source of income.
SEC. 16.5. Section 12955 of the Government Code is amended to
read:
12955. It shall be unlawful:
(a) For the owner of any housing accommodation to discriminate
against or harass any person because of the race, color, religion,
sex, gender, gender identity, gender expression, sexual orientation,
marital status, national origin, ancestry, familial status, source of
income, disability, or genetic information of that person.
(b) For the owner of any housing accommodation to make or to cause
to be made any written or oral inquiry concerning the race, color,
religion, sex, gender, gender identity, gender expression, sexual
orientation, marital status, national origin, ancestry, familial
status, disability, or genetic information of any person seeking to
purchase, rent, or lease any housing accommodation.
(c) For any person to make, print, or publish, or cause to be
made, printed, or published any notice, statement, or advertisement,
with respect to the sale or rental of a housing accommodation that
indicates any preference, limitation, or discrimination based on
race, color, religion, sex, gender, gender identity, gender
expression, sexual orientation, marital status, national origin,
ancestry, familial status, source of income, disability, or genetic
information or an intention to make that preference, limitation, or
discrimination.
(d) For any person subject to the provisions of Section 51 of the
Civil Code, as that section applies to housing accommodations, to
discriminate against any person on the basis of sex, gender, gender
identity, gender expression, sexual orientation, color, race,
religion, ancestry, national origin, familial status, marital status,
disability, genetic information, source of income, or on any other
basis prohibited by that section. Selection preferences based on age,
imposed in connection with a federally approved housing program, do
not constitute age discrimination in housing.
(e) For any person, bank, mortgage company or other financial
institution that provides financial assistance for the purchase,
organization, or construction of any housing accommodation to
discriminate against any person or group of persons because of the
race, color, religion, sex, gender, gender identity, gender
expression, sexual orientation, marital status, national origin,
ancestry, familial status, source of income, disability, or genetic
information in the terms, conditions, or privileges relating to the
obtaining or use of that financial assistance.
(f) For any owner of housing accommodations to harass, evict, or
otherwise discriminate against any person in the sale or rental of
housing accommodations when the owner's dominant purpose is
retaliation against a person who has opposed practices unlawful under
this section, informed law enforcement agencies of practices
believed unlawful under this section, has testified or assisted in
any proceeding under this part, or has aided or encouraged a person
to exercise or enjoy the rights secured by this part. Nothing herein
is intended to cause or permit the delay of an unlawful detainer
action.
(g) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts or practices declared unlawful in this
section, or to attempt to do so.
(h) For any person, for profit, to induce any person to sell or
rent any dwelling by representations regarding the entry or
prospective entry into the neighborhood of a person or persons of a
particular race, color, religion, sex, gender, gender identity,
gender expression, sexual orientation, marital status, ancestry,
disability, genetic information, source of income, familial status,
or national origin.
(i) For any person or other organization or entity whose business
involves real estate-related transactions to discriminate against any
person in making available a transaction, or in the terms and
conditions of a transaction, because of race, color, religion, sex,
gender, gender identity, gender expression, sexual orientation,
marital status, national origin, ancestry, source of income, familial
status, disability, or genetic information.
(j) To deny a person access to, or membership or participation in,
a multiple listing service, real estate brokerage organization, or
other service because of race, color, religion, sex, gender, gender
identity, gender expression, sexual orientation, marital status,
ancestry, disability, genetic information, familial status, source of
income, or national origin.
(k) To otherwise make unavailable or deny a dwelling based on
discrimination because of race, color, religion, sex, gender, gender
identity, gender expression, sexual orientation, familial status,
source of income, disability, genetic information, or national
origin.
( l ) To discriminate through public or private land
use practices, decisions, and authorizations because of race, color,
religion, sex, gender, gender identity, gender expression, sexual
orientation, familial status, marital status, disability, genetic
information, national origin, source of income, or ancestry.
Discrimination includes, but is not limited to, restrictive
covenants, zoning laws, denials of use permits, and other actions
authorized under the Planning and Zoning Law (Title 7 (commencing
with Section 65000)), that make housing opportunities unavailable.
Discrimination under this subdivision also includes the existence
of a restrictive covenant, regardless of whether accompanied by a
statement that the restrictive covenant is repealed or void.
(m) As used in this section, "race, color, religion, sex, gender,
gender identity, gender expression, sexual orientation, marital
status, national origin, ancestry, familial status, source of income,
disability, or genetic information" 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.
(n) To use a financial or income standard in the rental of housing
that fails to account for the aggregate income of persons residing
together or proposing to reside together on the same basis as the
aggregate income of married persons residing together or proposing to
reside together.
(o) In instances where there is a government rent subsidy, to use
a financial or income standard in assessing eligibility for the
rental of housing that is not based on the portion of the rent to be
paid by the tenant.
(p) (1) For the purposes of this section, "source of income" means
lawful, verifiable income paid directly to a tenant or paid to a
representative of a tenant. For the purposes of this section, a
landlord is not considered a representative of a tenant.
(2) For the purposes of this section, it shall not constitute
discrimination based on source of income to make a written or oral
inquiry concerning the level or source of income.
SEC. 17. Section 12955.8 of the Government Code is amended to
read:
12955.8. For purposes of this article, in connection with
unlawful practices:
(a) Proof of an intentional violation of this article includes,
but is not limited to, an act or failure to act that is otherwise
covered by this part, that demonstrates an intent to discriminate in
any manner in violation of this part. A person intends to
discriminate if race, color, religion, sex, sexual orientation,
marital status, national origin, ancestry, familial status, source of
income, disability, or genetic information is a motivating factor in
committing a discriminatory housing practice even though other
factors may have also motivated the practice. An intent to
discriminate may be established by direct or circumstantial evidence.
(b) Proof of a violation causing a discriminatory effect is shown
if an act or failure to act that is otherwise covered by this part,
and that has the effect, regardless of intent, of unlawfully
discriminating on the basis of race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, source of income, disability, or genetic information. A
business establishment whose action or inaction has an unintended
discriminatory effect shall not be considered to have committed an
unlawful housing practice in violation of this part if the business
establishment can establish that the action or inaction is necessary
to the operation of the business and effectively carries out the
significant business need it is alleged to serve. In cases that do
not involve a business establishment, the person whose action or
inaction has an unintended discriminatory effect shall not be
considered to have committed an unlawful housing practice in
violation of this part if the person can establish that the action or
inaction is necessary to achieve an important purpose sufficiently
compelling to override the discriminatory effect and effectively
carries out the purpose it is alleged to serve.
(1) Any determination of a violation pursuant to this subdivision
shall consider whether or not there are feasible alternatives that
would equally well or better accomplish the purpose advanced with a
less discriminatory effect.
(2) For purposes of this subdivision, the term "business
establishment" shall have the same meaning as in Section 51 of the
Civil Code.
SEC. 17.5. Section 12955.8 of the Government Code is amended to
read:
12955.8. For purposes of this article, in connection with
unlawful practices:
(a) Proof of an intentional violation of this article includes,
but is not limited to, an act or failure to act that is otherwise
covered by this part, that demonstrates an intent to discriminate in
any manner in violation of this part. A person intends to
discriminate if race, color, religion, sex, gender, gender identity,
gender expression, sexual orientation, marital status, national
origin, ancestry, familial status, source of income, disability, or
genetic information is a motivating factor in committing a
discriminatory housing practice even though other factors may have
also motivated the practice. An intent to discriminate may be
established by direct or circumstantial evidence.
(b) Proof of a violation causing a discriminatory effect is shown
if an act or failure to act that is otherwise covered by this part,
and that has the effect, regardless of intent, of unlawfully
discriminating on the basis of race, color, religion, sex, gender,
gender identity, gender expression, sexual orientation, marital
status, national origin, ancestry, familial status, source of income,
disability, or genetic information. A business establishment whose
action or inaction has an unintended discriminatory effect shall not
be considered to have committed an unlawful housing practice in
violation of this part if the business establishment can establish
that the action or inaction is necessary to the operation of the
business and effectively carries out the significant business need it
is alleged to serve. In cases that do not involve a business
establishment, the person whose action or inaction has an unintended
discriminatory effect shall not be considered to have committed an
unlawful housing practice in violation of this part if the person can
establish that the action or inaction is necessary to achieve an
important purpose sufficiently compelling to override the
discriminatory effect and effectively carries out the purpose it is
alleged to serve.
(1) Any determination of a violation pursuant to this subdivision
shall consider whether or not there are feasible alternatives that
would equally well or better accomplish the purpose advanced with a
less discriminatory effect.
(2) For purposes of this subdivision, the term "business
establishment" shall have the same meaning as in Section 51 of the
Civil Code.
SEC. 18. Section 12956.1 of the Government Code is amended to
read:
12956.1. (a) As used in this section, "association," "governing
documents," and "declaration" have the same meanings as set forth in
Section 1351 of the Civil Code.
(b) (1) A county recorder, title insurance company, escrow
company, real estate broker, real estate agent, or association that
provides a copy of a declaration, governing document, or deed to any
person shall place a cover page or stamp on the first page of the
previously recorded document or documents stating, in at least
14-point boldface type, the following:
"If this document contains any restriction based on race, color,
religion, sex, sexual orientation, familial status, marital status,
disability, genetic information, national origin, source of income as
defined in subdivision (p) of Section 12955, or ancestry, that
restriction violates state and federal fair housing laws and is void,
and may be removed pursuant to Section 12956.2 of the Government
Code. Lawful restrictions under state and federal law on the age of
occupants in senior housing or housing for older persons shall not be
construed as restrictions based on familial status."
(2) The requirements set forth in paragraph (1) shall not apply to
documents being submitted for recordation to a county recorder.
(c) Any person who records a document for the express purpose of
adding a racially restrictive covenant is guilty of a misdemeanor.
The county recorder shall not incur any liability for recording the
document. Notwithstanding any other provision of law, a prosecution
for a violation of this subdivision shall commence within three years
after the discovery of the recording of the document.
SEC. 18.5. Section 12956.1 of the Government Code is amended to
read:
12956.1. (a) As used in this section, "association," "governing
documents," and "declaration" have the same meanings as set forth in
Section 1351 of the Civil Code.
(b) (1) A county recorder, title insurance company, escrow
company, real estate broker, real estate agent, or association that
provides a copy of a declaration, governing document, or deed to any
person shall place a cover page or stamp on the first page of the
previously recorded document or documents stating, in at least
14-point boldface type, the following:
"If this document contains any restriction based on race, color,
religion, sex, gender, gender identity, gender expression, sexual
orientation, familial status, marital status, disability, genetic
information, national origin, source of income as defined in
subdivision (p) of Section 12955, or ancestry, that restriction
violates state and federal fair housing laws and is void, and may be
removed pursuant to Section 12956.2 of the Government Code. Lawful
restrictions under state and federal law on the age of occupants in
senior housing or housing for older persons shall not be construed as
restrictions based on familial status."
(2) The requirements set forth in paragraph (1) shall not apply to
documents being submitted for recordation to a county recorder.
(c) Any person who records a document for the express purpose of
adding a racially restrictive covenant is guilty of a misdemeanor.
The county recorder shall not incur any liability for recording the
document. Notwithstanding any other provision of law, a prosecution
for a violation of this subdivision shall commence within three years
after the discovery of the recording of the document.
SEC. 19. Section 12956.2 of the Government Code is amended to
read:
12956.2. (a) A person who holds an ownership interest of record
in property that he or she believes is the subject of an unlawfully
restrictive covenant in violation of subdivision (l) of Section 12955
may record a document titled Restrictive Covenant Modification. The
county recorder may choose to waive the fee prescribed for recording
and indexing instruments pursuant to Section 27361 in the case of the
modification document provided for in this section. The modification
document shall include a complete copy of the original document
containing the unlawfully restrictive language with the unlawfully
restrictive language stricken.
(b) Before recording the modification document, the county
recorder shall submit the modification document and the original
document to the county counsel who shall determine whether the
original document contains an unlawful restriction based on race,
color, religion, sex, sexual orientation, familial status, marital
status, disability, genetic information, national origin, source of
income as defined in subdivision (p) of Section 12955, or ancestry.
The county counsel shall return the documents and inform the county
recorder of its determination. The county recorder shall refuse to
record the modification document if the county counsel finds that the
original document does not contain an unlawful restriction as
specified in this paragraph.
(c) The modification document shall be indexed in the same manner
as the original document being modified. It shall contain a recording
reference to the original document in the form of a book and page or
instrument number, and date of the recording.
(d) Subject to covenants, conditions, and restrictions that were
recorded after the recording of the original document that contains
the unlawfully restrictive language and subject to covenants,
conditions, and restrictions that will be recorded after the
Restrictive Covenant Modification, the restrictions in the
Restrictive Covenant Modification, once recorded, are the only
restrictions having effect on the property. The effective date of the
terms and conditions of the modification document shall be the same
as the effective date of the original document.
(e) The county recorder shall make available to the public
Restrictive Covenant Modification forms.
(f) If the holder of an ownership interest of record in property
causes to be recorded a modified document pursuant to this section
that contains modifications not authorized by this section, the
county recorder shall not incur liability for recording the document.
The liability that may result from the unauthorized recordation is
the sole responsibility of the holder of the ownership interest of
record who caused the modified recordation.
(g) This section does not apply to persons holding an ownership
interest in property that is part of a common interest development as
defined in subdivision (c) of Section 1351 of the Civil Code if the
board of directors of that common interest development is subject to
the requirements of subdivision (b) of Section 1352.5 of the Civil
Code.
SEC. 19.5. Section 12956.2 of the Government Code is amended to
read:
12956.2. (a) A person who holds an ownership interest of record
in property that he or she believes is the subject of an unlawfully
restrictive covenant in violation of subdivision (l) of Section 12955
may record a document titled Restrictive Covenant Modification. The
county recorder may choose to waive the fee prescribed for recording
and indexing instruments pursuant to Section 27361 in the case of the
modification document provided for in this section. The modification
document shall include a complete copy of the original document
containing the unlawfully restrictive language with the unlawfully
restrictive language stricken.
(b) Before recording the modification document, the county
recorder shall submit the modification document and the original
document to the county counsel who shall determine whether the
original document contains an unlawful restriction based on race,
color, religion, sex, gender, gender identity, gender expression,
sexual orientation, familial status, marital status, disability,
genetic information, national origin, source of income as defined in
subdivision (p) of Section 12955, or ancestry. The county counsel
shall return the documents and inform the county recorder of its
determination. The county recorder shall refuse to record the
modification document if the county counsel finds that the original
document does not contain an unlawful restriction as specified in
this paragraph.
(c) The modification document shall be indexed in the same manner
as the original document being modified. It shall contain a recording
reference to the original document in the form of a book and page or
instrument number, and date of the recording.
(d) Subject to covenants, conditions, and
restrictions that were recorded after the recording of the original
document that contains the unlawfully restrictive language and
subject to covenants, conditions, and restrictions that will be
recorded after the Restrictive Covenant Modification, the
restrictions in the Restrictive Covenant Modification, once recorded,
are the only restrictions having effect on the property. The
effective date of the terms and conditions of the modification
document shall be the same as the effective date of the original
document.
(e) The county recorder shall make available to the public
Restrictive Covenant Modification forms.
(f) If the holder of an ownership interest of record in property
causes to be recorded a modified document pursuant to this section
that contains modifications not authorized by this section, the
county recorder shall not incur liability for recording the document.
The liability that may result from the unauthorized recordation is
the sole responsibility of the holder of the ownership interest of
record who caused the modified recordation.
(g) This section does not apply to persons holding an ownership
interest in property that is part of a common interest development as
defined in subdivision (c) of Section 1351 of the Civil Code if the
board of directors of that common interest development is subject to
the requirements of subdivision (b) of Section 1352.5 of the Civil
Code.
SEC. 20. Section 12993 of the Government Code is amended to read:
12993. (a) The provisions of this part shall be construed
liberally for the accomplishment of the purposes of this part.
Nothing contained in this part shall be deemed to repeal any of the
provisions of the Civil Rights Law or of any other law of this state
relating to discrimination because of race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, age, or
sexual orientation, unless those provisions provide less protection
to the enumerated classes of persons covered under this part.
(b) Nothing contained in this part relating to discrimination in
employment on account of sex or medical condition shall be deemed to
affect the operation of the terms or conditions of any bona fide
retirement, pension, employee benefit, or insurance plan, provided
the terms or conditions are in accordance with customary and
reasonable or actuarially sound underwriting practices.
(c) While it is the intention of the Legislature to occupy the
field of regulation of discrimination in employment and housing
encompassed by the provisions of this part, exclusive of all other
laws banning discrimination in employment and housing by any city,
city and county, county, or other political subdivision of the state,
nothing contained in this part shall be construed, in any manner or
way, to limit or restrict the application of Section 51 of the Civil
Code.
SEC. 21. Section 868.8 of the Penal Code is amended to read:
868.8. Notwithstanding any other provision of law, in any
criminal proceeding in which the defendant is charged with a
violation of Section 243.4, 261, 273a, 273d, 285, 286, 288, 288a,
288.5, or 289, subdivision (1) of Section 314, Section 647.6, or
former Section 647a, or any crime that constitutes domestic violence
defined in Section 13700, committed with or upon a person with a
disability or a minor under 11 years of age, the court shall take
special precautions to provide for the comfort and support of the
person with a disability or minor and to protect him or her from
coercion, intimidation, or undue influence as a witness, including,
but not limited to, any of the following:
(a) In the court's discretion, the witness may be allowed
reasonable periods of relief from examination and cross-examination
during which he or she may retire from the courtroom. The judge may
also allow other witnesses in the proceeding to be examined when the
person with a disability or child witness retires from the courtroom.
(b) Notwithstanding Section 68110 of the Government Code, in his
or her discretion, the judge may remove his or her robe if the judge
believes that this formal attire intimidates the person with a
disability or the minor.
(c) In the court's discretion the judge, parties, witnesses,
support persons, and court personnel may be relocated within the
courtroom to facilitate a more comfortable and personal environment
for the person with a disability or child witness.
(d) In the court's discretion, the taking of the testimony of the
person with a disability or the minor may be limited to normal school
hours if there is no good cause to take the testimony of the person
with a disability or the minor during other hours.
(e) For the purposes of this section, the term "disability" is
defined in subdivision (j) of Section 12926 of the Government Code.
SEC. 22. Section 17269 of the Revenue and Taxation Code is amended
to read:
17269. Whereas, the people of the State of California desire to
promote and achieve tax equity and fairness among all the state's
citizens and further desire to conform to the public policy of
nondiscrimination, the Legislature hereby enacts the following for
these reasons and for no other purpose:
(a) The provisions of Section 162(a) of the Internal Revenue Code
shall not be applicable to expenses incurred by a taxpayer with
respect to expenditures made at, or payments made to, a club which
restricts membership or the use of its services or facilities on the
basis of ancestry or any characteristic listed or defined in Section
11135 of the Government Code, except for genetic information.
(b) A club described in subdivision (a) holding an alcoholic
beverage license pursuant to Division 9 (commencing with Section
23000) of the Business and Professions Code, except a club holding an
alcoholic beverage license pursuant to Section 23425 thereof, shall
provide on each receipt furnished to a taxpayer a printed statement
as follows:
"The expenditures covered by this receipt are nondeductible for
state income tax purposes or franchise tax purposes."
(c) For purposes of this section:
(1) "Expenses" means those expenses otherwise deductible under
Section 162(a) of the Internal Revenue Code, except for subdivision
(a), and includes, but is not limited to, club membership dues and
assessments, food and beverage expenses, expenses for services
furnished by the club, and reimbursements or salary adjustments to
officers or employees for any of the preceding expenses.
(2) "Club" means a club as defined in Division 9 (commencing with
Section 23000) of the Business and Professions Code, except a club as
defined in Section 23425 thereof.
SEC. 23. Section 24343.2 of the Revenue and Taxation Code is
amended to read:
24343.2. Whereas, the people of the State of California desire to
promote and achieve tax equity and fairness among all the state's
citizens and further desire to conform to the public policy of
nondiscrimination, the Legislature hereby enacts the following for
these reasons and for no other purpose:
(a) No deduction shall be allowed under Section 24343 for expenses
incurred by a taxpayer with respect to expenditures made at, or
payments made to, a club which restricts membership or the use of its
services or facilities on the basis of ancestry or any
characteristic listed or defined in Section 11135 of the Government
Code, except for genetic information.
(b) A club described in subdivision (a) holding an alcoholic
beverage license pursuant to Division 9 (commencing with Section
23000) of the Business and Professions Code, except a club holding an
alcoholic beverage license pursuant to Section 23425 thereof, shall
provide on each receipt furnished to a taxpayer a printed statement
as follows:
"The expenditures covered by this receipt are nondeductible for
state income tax purposes or franchise tax purposes."
(c) For purposes of this section:
(1) "Expenses" means those expenses otherwise deductible under
Section 24343, except for subdivision (a), and includes, but is not
limited to, club membership dues and assessments, food and beverage
expenses, expenses for services furnished by the club, and
reimbursements or salary adjustments to officers or employees for any
of the preceding expenses.
(2) "Club" means a club as defined in Division 9 (commencing with
Section 23000) of the Business and Professions Code, except a club as
defined in Section 23425 thereof.
SEC. 24. Section 4900 of the Welfare and Institutions Code is
amended to read:
4900. (a) The definitions contained in this section shall govern
the construction of this division, unless the context requires
otherwise. These definitions shall not be construed to alter or
impact the definitions or other provisions of the Elder Abuse and
Dependent Adult Civil Protection Act (Chapter 11 (commencing with
Section 15600)), or Chapter 13 (commencing with Section 15750), of
Part 3 of Division 9.
(b) "Abuse" means an act, or failure to act, that would constitute
abuse as that term is defined in federal regulations pertaining to
the authority of protection and advocacy agencies, including Section
51.2 of Title 42 of the Code of Federal Regulations or Section
1386.19 of Title 45 of the Code of Federal Regulations. "Abuse" also
means an act, or failure to act, that would constitute abuse as that
term is defined in Section 15610.07 of this code or Section 11165.6
of the Penal Code.
(c) "Complaint" has the same meaning as "complaint" as defined in
federal statutes and regulations pertaining to the authority of
protection and advocacy agencies, including Section 10802(1) of Title
42 of the United States Code, Section 51.2 of Title 42 of the Code
of Federal Regulations, or Section 1386.19 of Title 45 of the Code of
Federal Regulations.
(d) "Disability" means a developmental disability, as defined in
Section 15002(8) of Title 42 of the United States Code, a mental
illness, as defined in Section 10802(4) of Title 42 of the United
States Code, a disability within the meaning of the federal Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as
defined in Section 12102(2) of Title 42 of the United States Code, or
a disability within the meaning of the California Fair Employment
and Housing Act (Part 2.8 (commencing with Section 12900) of Division
3 of Title 2 of the Government Code), as defined in subdivision (j)
or (l) of Section 12926 of the Government Code.
(e) "Facility" or "program" means a public or private facility or
program providing services, support, care, or treatment to persons
with disabilities, even if only on an as-needed basis or under
contractual arrangement. "Facility" or "program" includes, but is not
limited to, a hospital, a long-term health care facility, a
community living arrangement for people with disabilities, including
a group home, a board and care home, an individual residence or
apartment of a person with a disability where services are provided,
a day program, a juvenile detention facility, a homeless shelter, a
jail, or a prison, including all general areas, as well as special,
mental health, or forensic units. The term includes any facility
licensed under Division 2 (commencing with Section 1200) of the
Health and Safety Code and any facility that is unlicensed but is not
exempt from licensure as provided in subdivision (a) of Section
1503.5 of the Health and Safety Code. The term also includes a public
or private school or other institution or program providing
education, training, habilitation, therapeutic, or residential
services to persons with disabilities.
(f) "Legal guardian," "conservator," or "legal representative"
means a person appointed by a state court or agency empowered under
state law to appoint and review the legal guardian, conservator, or
legal representative, as appropriate. With respect to an individual
described under paragraph (2) of subdivision (i), this person is one
who has the legal authority to consent to health or mental health
care or treatment on behalf of the individual. With respect to an
individual described under paragraphs (1) or (3) of subdivision (i),
this person is one who has the legal authority to make all decisions
on behalf of the individual. These terms include the parent of a
minor who has legal custody of the minor. These terms do not include
a person acting solely as a representative payee, a person acting
solely to handle financial matters, an attorney or other person
acting on behalf of an individual with a disability solely in
individual legal matters, or an official or his or her designee who
is responsible for the provision of treatment or services to an
individual with a disability.
(g) "Neglect" means a negligent act, or omission to act, that
would constitute neglect as that term is defined in federal statutes
and regulations pertaining to the authority of protection and
advocacy agencies, including Section 10802(5) of Title 42 of the
United States Code, Section 51.2 of Title 42 of the Code of Federal
Regulations, or Section 1386.19 of Title 45 of the Code of Federal
Regulations. "Neglect" also means a negligent act, or omission to
act, that would constitute neglect as that term is defined in
subdivision (b) of Section 15610.07 of this code or Section 11165.2
of the Penal Code.
(h) "Probable cause" to believe that an individual has been
subject to abuse or neglect, or is at significant risk of being
subjected to abuse or neglect, exists when the protection and
advocacy agency determines that it is objectively reasonable for a
person to entertain that belief. The individual making a probable
cause determination may base the decision on reasonable inferences
drawn from his or her experience or training regarding similar
incidents, conditions, or problems that are usually associated with
abuse or neglect. Information supporting a probable cause
determination may result from monitoring or other activities,
including, but not limited to, media reports and newspaper articles.
(i) "Protection and advocacy agency" means the private nonprofit
corporation designated by the Governor in this state pursuant to
federal law for the protection and advocacy of the rights of persons
with disabilities, including the following:
(1) People with developmental disabilities, as authorized under
the federal Developmental Disabilities Assistance and Bill of Rights
Act of 2000, contained in Chapter 144 (commencing with Section 15001)
of Title 42 of the United States Code.
(2) People with mental illness, as authorized under the federal
Protection and Advocacy for Mentally Ill Individuals Amendments Act
of 1991, contained in Chapter 114 (commencing with Section 10801) of
Title 42 of the United States Code.
(3) People with disabilities within the meaning of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et
seq.) as defined in Section 12102(2) of Title 42 of the United States
Code, who do not have a developmental disability as defined in
Section 15002(8) of Title 42 of the United States Code, people with a
mental illness as defined in Section 10802(4) of Title 42 of the
United States Code, and who are receiving services under the federal
Protection and Advocacy of Individual Rights Act as defined in
Section 794e of Title 29 of the United States Code, or people with a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (j) or
(l) of Section 12926 of the Government Code.
(j) "Reasonable unaccompanied access" means access that permits
the protection and advocacy agency, without undue interference, to
monitor, inspect, and observe conditions in facilities and programs,
to meet and communicate with residents and service recipients
privately and confidentially on a regular basis, formally or
informally, by telephone, mail, electronic mail, and in person, and
to review records privately and confidentially, in a manner that
minimizes interference with the activities of the program or service,
that respects residents' privacy interests and honors a resident's
request to terminate an interview, and that does not jeopardize the
physical health or safety of facility or program staff, residents,
service recipients, or protection and advocacy agency staff.
SEC. 25. Section 3.5 of this bill incorporates amendments to
Section 51 of the Civil Code proposed by both this bill and Assembly
Bill 887. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2012, (2) each
bill amends Section 51 of the Civil Code, and (3) this bill is
enacted after Assembly Bill 887, in which case Section 3 of this bill
shall not become operative.
SEC. 26. Section 4.5 of this bill incorporates amendments to
Section 32228 of the Education Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 32228 of the Education Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 4 of
this bill shall not become operative.
SEC. 27. Section 7.5 of this bill incorporates amendments to
Section 12920 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12920 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 7 of
this bill shall not become operative.
SEC. 28. Section 8.5 of this bill incorporates amendments to
Section 12921 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12921 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 8 of
this bill shall not become operative.
SEC. 29. Section 9.5 of this bill incorporates amendments to
Section 12926 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12926 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 9 of
this bill shall not become operative.
SEC. 30. Section 11.5 of this bill incorporates amendments to
Section 12930 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12930 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 11 of
this bill shall not become operative.
SEC. 31. Section 12.5 of this bill incorporates amendments to
Section 12931 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12931 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 12 of
this bill shall not become operative.
SEC. 32. Section 13.5 of this bill incorporates amendments to
Section 12935 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12935 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 13 of
this bill shall not become operative.
SEC. 33. Section 14.5 of this bill incorporates amendments to
Section 12940 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12940 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 14 of
this bill shall not become operative.
SEC. 34. Section 15.5 of this bill incorporates amendments to
Section 12944 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12944 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 15 of
this bill shall not become operative.
SEC. 35. Section 16.5 of this bill incorporates amendments to
Section 12955 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12955 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 16 of
this bill shall not become operative.
SEC. 36. Section 17.5 of this bill incorporates amendments to
Section 12955.8 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12955.8 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 17 of
this bill shall not become operative.
SEC. 37. Section 18.5 of this bill incorporates amendments to
Section 12956.1 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12956.1 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 18 of
this bill shall not become operative.
SEC. 38. Section 19.5 of this bill incorporates amendments to
Section 12956.2 of the Government Code proposed by both this bill and
Assembly Bill 887. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2012, (2)
each bill amends Section 12956.2 of the Government Code, and (3) this
bill is enacted after Assembly Bill 887, in which case Section 19 of
this bill shall not become operative.
SEC. 39. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
