Bill Text

Bill Information

Add To My Favorites | print page

AB-1740 Employment protections: victims of domestic violence, sexual assault, or stalking.(2011-2012)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
AB1740:v98#DOCUMENT

Amended  IN  Assembly  April 25, 2012

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 1740


Introduced  by  Assembly Member V. Manuel Pérez

February 17, 2012


An act 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, 12926.2, 12928, 12931, 12940, 12944, and 12951 of, and to add Section 12945.6 to, the Government Code, to amend Section 98.6 of the Labor Code, to amend Section 868.8 of the Penal Code, and to amend Section 4900 of the Welfare and Institutions Code Sections 230 and 230.1 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1740, as amended, V. Manuel Pérez. Employment discrimination protections: victims of domestic violence, sexual assault, or stalking.

(1)Existing law, the California Fair Employment and Housing Act (FEHA), protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, gender, gender identity, age, or sexual orientation.

This bill would include status as a victim of domestic violence, sexual assault, or stalking as an additional basis upon which the right to seek, obtain, and hold employment cannot be denied under FEHA. By expanding the bases upon which discrimination is prohibited under FEHA, this bill would also expand the bases upon which discrimination is prohibited under other antidiscrimination provisions that prohibit discrimination on the same bases as provided for in FEHA. Other antidiscrimination provisions include provisions that make willful discrimination in a recruitment or apprenticeship program on those bases a misdemeanor. By adding unemployment status to the list of characteristics listed in FEHA, this bill would expand the bases upon which this crime applies, thereby imposing a state-mandated local program.

The bill would also provide for specific protections under FEHA applicable to victims of actual or threatened domestic violence, sexual assault, or stalking.

(1) Existing law provides protections to victims of domestic violence and sexual assault and prohibits employers from taking adverse employment action against victims of domestic violence and sexual assault who take time off from work to attend to issues arising as a result of the domestic violence or sexual assault, as long as the employee complies with certain conditions. Existing law provides that employers who violate these provisions are guilty of a misdemeanor.
This bill would extend these protections to victims of stalking. The bill would also prohibit an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s known status as a victim of domestic violence, sexual assault, or stalking, and require the employer to provide reasonable accommodations for such a victim. Because a violation of the bill’s requirements under certain circumstances would be a crime, the bill would impose a state-mandated local program.
(2) 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 no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.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 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. 2.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 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. 3.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 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. 4.Section 12920 of the Government Code is amended to read:
12920.

(a)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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking.

(b)It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for the reasons described in subdivision (a) 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.

(c)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.

(d)It is the purpose of this part to provide effective remedies that will eliminate these discriminatory practices.

(e)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. 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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking 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. 6.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)“Domestic violence” means a type of abuse set forth in Section 6211 of the Family Code.

(d)“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.

(e)“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.

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

(g)“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.

(h)(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.

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

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

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

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

(A)Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or 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.

(k)“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.

(l)“On the bases enumerated in this part” means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking.

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

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

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

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

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

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

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

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

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

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

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

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

(n)Notwithstanding subdivisions (k) and (m), 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 (k) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (k) and (m).

(o)“Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.

(p)“Reasonable accommodation” may include any 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.

(3)With regard to victims of domestic violence, sexual assault, or stalking, the implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to actual or threatened domestic violence, sexual assault, or stalking.

(q)“Religious creed,” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice.

(r)“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.

(s)“Sexual assault” means a crime set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 267, 269, 273.4, 285, 286, 288, 288a, 289, or 311.4 of the Penal Code.

(t)“Sexual orientation” means heterosexuality, homosexuality, and bisexuality.

(u)“Stalking” means a crime set forth in Section 646.9 of the Penal Code and Section 1708.7 of the Civil Code.

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

(w)“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. 7.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) 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. 8.Section 12926.2 of the Government Code is amended to read:
12926.2.

As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:

(a)“Religious corporation” means any corporation formed under, or otherwise subject to, Part 4 (commencing with Section 9110) or Part 6 (commencing with Section 10000) of Division 2 of Title 1 of the Corporations Code, and also includes a corporation that is formed primarily or exclusively for religious purposes under the laws of any other state to administer the affairs of an organized religious group and that is not organized for private profit.

(b)“Religious duties” means duties of employment connected with carrying on the religious activities of a religious corporation or association.

(c)Notwithstanding Section 12926 and except as otherwise provided in subdivision (d) of this section, “employer” includes a religious corporation or association with respect to persons employed by the religious association or corporation to perform duties, other than religious duties, at a health care facility operated by the religious association or corporation for the provision of health care that is not restricted to adherents of the religion that established the association or corporation.

(d)“Employer” does not include a religious corporation with respect to either the employment, including promotion, of an individual of a particular religion, or the application of the employer’s religious doctrines, tenets, or teachings, in any work connected with the provision of health care.

(e)Notwithstanding Section 12926, “employer” does not include a nonprofit public benefit corporation incorporated to provide health care on behalf of a religious organization under Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code, with respect to employment, including promotion, of an individual of a particular religion in an executive or pastoral-care position connected with the provision of health care.

(f)(1)Notwithstanding any other provision of law, a nonprofit public benefit corporation formed by, or affiliated with, a particular religion and that operates an educational institution as its sole or primary activity, may restrict employment, including promotion, in any or all employment categories to individuals of a particular religion.

(2)Notwithstanding paragraph (1) or any other provision of law, employers that are nonprofit public benefit corporations specified in paragraph (1) shall be subject to the provisions of this part in all other respects, including, but not limited to, the prohibitions against discrimination made unlawful employment practices by this part.

SEC. 9.Section 12928 of the Government Code is amended to read:
12928.

Notwithstanding any other provision of this part, there is a rebuttable presumption that “employer,” as defined in Section 12926, includes any person or entity identified as the employer on the employee’s Federal Form W-2 (Wage and Tax Statement).

SEC. 10.Section 12931 of the Government Code is amended to read:
12931.

(a)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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking 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.

(b)The assistance of the department pursuant to this section shall be limited to endeavors at investigation, conference, conciliation, and persuasion.

SEC. 11.Section 12940 of the Government Code is amended to read:
12940.

It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking 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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking 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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking 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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking, 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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking, 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 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.

(p)For an employer, labor organization, employment agency, apprenticeship training program, or any program leading to employment, or any other person or entity covered by this part, to discriminate against a victim of threatened or actual domestic violence, sexual assault, or stalking because the workplace or a work-related setting is disrupted or threatened by the action of a person whom the person discriminated against states has committed or threatened to commit domestic violence, sexual assault, or stalking against the individual or the individual’s family or other household member.

SEC. 12.Section 12944 of the Government Code is amended to read:
12944.

(a)(1)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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking, unless the practice can be demonstrated to be job related.

(2)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.

(3)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, sexual orientation, or status as a victim of domestic violence, sexual assault, or stalking 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 for which the applicant is applying. 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. 13.Section 12945.6 is added to the Government Code, to read:
12945.6.

(a)In addition to the protections in Section 12940, it shall be an unlawful employment practice to do any of the following, unless based on a bona fide occupational qualification:

(1)For an employer to refuse to provide reasonable accommodations for an employee who is a victim of actual or threatened domestic violence, sexual assault, or stalking. Reasonable accommodations shall be made in a timely fashion. An exigent circumstance or danger facing the employee or the employee’s family or other household member shall be considered in determining whether the accommodation is reasonable.

(2)For an employer to fail to engage in a timely, good faith interactive process with the individual to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodations made by an employee who is a victim of actual or threatened domestic violence, sexual assault, or stalking.

(3)For an employer to retaliate against a victim of actual or threatened domestic violence, sexual assault, or stalking for requesting a reasonable accommodation, regardless of whether the request was granted.

(4)For an employer to retaliate against an employee for providing documentation for the purpose of certifying the need for accommodations as described in subdivision (b), or the need for leave under subdivision (c) of Section 230 or Section 230.1 of the Labor Code.

(5)This subdivision does not require the employer to undertake an action that constitutes an undue hardship on the employer’s business operations.

(b)(1)Upon an employer’s request, an employee who requests a reasonable accommodation pursuant to this section shall provide the employer a signed written statement from the employee or other individual acting on the employee’s behalf certifying that the accommodation is for a purpose authorized under this section. The employer may also, but need not, request that the employee provide either a police or court record related to the domestic violence, sexual assault, or stalking, or provide a signed written statement that the employee is a victim of threatened or actual domestic violence, sexual assault, or stalking, if that statement is from an employee or agent of a victim services organization, an attorney, or a licensed medical professional or other licensed professional, from whom the employee has sought assistance with respect to the domestic violence, sexual assault, or stalking.

(2)Any verbal or written statement or police or court record provided to an employer identifying an employee as a victim of domestic violence, sexual assault, or stalking, including documentation provided to the employer pursuant to this section, shall be maintained as confidential by the employer and shall not be further disclosed by the employer except as required by federal or state law or as necessary to protect the employee’s safety in the workplace. The employee shall be given notice before any authorized disclosure.

SEC. 14.Section 12951 of the Government Code is amended to read:
12951.

(a)It is an unlawful employment practice for an employer, as defined in Section 12926, to adopt or enforce a policy that limits or prohibits the use of any language in any workplace, unless both of the following conditions exist:

(1)The language restriction is justified by a business necessity.

(2)The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction.

(b)For the purposes of this section, “business necessity” means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

SEC. 15.Section 98.6 of the Labor Code is amended to read:
98.6.

(a)No person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights, which are under the jurisdiction of the Labor Commissioner, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in any such proceeding or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.

(b)Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer. Any employer who willfully refuses to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.

(c)(1)Any applicant for employment who is refused employment, who is not selected for a training program leading to employment, or who in any other manner is discriminated against in the terms and conditions of any offer of employment because the applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the applicant has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to employment and reimbursement for lost wages and work benefits caused by the acts of the prospective employer.

(2)This subdivision shall not be construed to invalidate any collective bargaining agreement that requires an applicant for a position that is subject to the collective bargaining agreement to sign a contract that protects either or both of the following as specified in subparagraphs (A) and (B), nor shall this subdivision be construed to invalidate any employer requirement of an applicant for a position that is not subject to a collective bargaining agreement to sign an employment contract that protects either or both of the following:

(A)An employer against any conduct that is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employer’s operation.

(B)A firefighter against any disease that is presumed to arise in the course and scope of employment, by limiting his or her consumption of tobacco products on and off the job.

(d)The provisions of this section creating new actions or remedies that are effective on January 1, 2002, to employees or applicants for employment do not apply to any state or local law enforcement agency, any religious association or corporation specified in subdivision (e) of Section 12926 of the Government Code, except as provided in Section 12926.2 of the Government Code, or any person described in Section 1070 of the Evidence Code.

SEC. 16.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 Section 12926 of the Government Code.

SEC. 17.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 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 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.

SECTION 1.

 Section 230 of the Labor Code is amended to read:

230.
 (a) An employer may shall not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that he or she is required to serve.
(b) An employer may shall not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.
(c) An employer may shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.
(d) (1) As a condition of taking time off for a purpose set forth in subdivision (c), the employee shall give the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer. Certification shall be sufficient in the form of any of the following:
(A) A police report indicating that the employee was a victim of domestic violence or, sexual assault, or stalking.
(B) A court order protecting or separating the employee from the perpetrator of an act of domestic violence or, sexual assault, or stalking, or other evidence from the court or prosecuting attorney that the employee has appeared in court.
(C) Documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence or, sexual assault, or stalking.
(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (f), the employer shall maintain the confidentiality of any employee requesting leave under subdivision (c).
(e) An employer shall not discharge or in any manner discriminate or retaliate against an employee because of the employee’s known status as a victim of domestic violence, sexual assault, or stalking.
(f) (1) An employer shall provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation for the safety of the victim while at work.
(2) For purposes of this subdivision, reasonable accommodations may include the implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to domestic violence, sexual assault, or stalking, or referral to a victim assistance organization.
(3) An employer is not required to provide a reasonable accommodation to an employee who has not disclosed his or her status as a victim of domestic violence, sexual assault, or stalking.
(4) The employer shall make reasonable accommodations in a timely fashion.
(5) In determining whether the accommodation is reasonable, the employer shall consider an exigent circumstance or danger facing the employee.
(6) This subdivision does not require the employer to undertake an action that constitutes an undue hardship on the employer’s business operations, as defined by Section 12926 of the Government Code.
(7) (A) Upon the request of an employer, an employee requesting a reasonable accommodation pursuant to this subdivision shall provide the employer a written statement signed by the employee or an individual acting on the employee’s behalf, certifying that the accommodation is for a purpose authorized under this subdivision.
(B) The employer may also request certification from an employee requesting an accommodation pursuant to this subdivision demonstrating the employee’s status as a victim of domestic violence, sexual assault, or stalking. Certification shall be sufficient in the form of any of the categories described in paragraph (2) of subdivision (d).
(C) An employer who requests certification pursuant to subparagraph (B) may request recertification of an employee's status as a victim of domestic violence, sexual assault, or stalking every six months after the date of the previous certification.
(D) Any verbal or written statement, police or court record, or other documentation provided to an employer identifying an employee as a victim of domestic violence, sexual assault, or stalking shall be maintained as confidential by the employer and shall not be disclosed by the employer except as required by federal or state law or as necessary to protect the employee’s safety in the workplace. The employee shall be given notice before any authorized disclosure.
(8) An employer shall not retaliate against a victim of domestic violence, sexual assault, or stalking for requesting a reasonable accommodation, regardless of whether the request was granted.

(e)

(g) (1) Any An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for a purpose set forth in subdivision (a), or (b), or (c) shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any
(2) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer for reasons prohibited in subdivision (c) or (e), or because he or she has requested or received a reasonable accommodation as set forth in subdivision (f), is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief. If the employee prevails in an action pursuant to this paragraph, the court may award reasonable attorney’s fees and costs.
(3) An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.

(f)

(h) (1) Any An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has exercised his or her rights as set forth in subdivision (a), (b), or (c) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an employee filing may file a complaint with the division based upon a violation of subdivision (c) shall have within one year from the date of occurrence of the violation to file his or her complaint.

(g)

(i) An employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in subdivision (a), (b), or (c). The entitlement of any employee under this section shall not be diminished by any collective bargaining agreement term or condition.

(h)

(j) For purposes of this section:
(1) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.
(2) “Sexual assault” means any of the crimes set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code, as amended.
(3) “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code.

SEC. 2.

 Section 230.1 of the Labor Code is amended to read:

230.1.
 (a) In addition to the requirements and prohibitions imposed on employees pursuant to Section 230, an employer with 25 or more employees may shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of, sexual assault, or stalking for taking time off from work to attend to any of the following:
(1) To seek medical attention for injuries caused by domestic violence or, sexual assault, or stalking.
(2) To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence or, sexual assault, or stalking.
(3) To obtain psychological counseling related to an experience of domestic violence or, sexual assault, or stalking.
(4) To participate in safety planning and take other actions to increase safety from future domestic violence or, sexual assault, or stalking, including temporary or permanent relocation.
(b) (1) As a condition of taking time off for a purpose set forth in subdivision (a), the employee shall give the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer may shall not take any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer. Certification shall be sufficient in the form of any of the following: categories described in paragraph (2) of subdivision (d) of Section 230.

(A)A police report indicating that the employee was a victim of domestic violence or sexual assault.

(B)A court order protecting or separating the employee from the perpetrator of an act of domestic violence or sexual assault, or other evidence from the court or prosecuting attorney that the employee appeared in court.

(C)Documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence or sexual assault.

(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (f) of Section 230, employers shall maintain the confidentiality of any employee requesting leave under subdivision (a).
(c) Any An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for a purpose set forth in subdivision (a) is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief. Any An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.
(d) (1) Any An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has exercised his or her rights as set forth in subdivision (a) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an employee filing may file a complaint with the division based upon a violation of subdivision (a) has within one year from the date of occurrence of the violation to file his or her complaint.
(e) If an employee prevails in an action pursuant to this section, the court may award reasonable attorney’s fees and costs.

(e)

(f) An employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in subdivision (a). The entitlement of any employee under this section may shall not be diminished by any collective bargaining agreement term or condition.

(f)

(g) This section does not create a right for an employee to take unpaid leave that exceeds the unpaid leave time allowed under, or is in addition to the unpaid leave time permitted by, the federal Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.).

(g)

(h) For purposes of this section:
(1) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.
(2) “Sexual assault” means any of the crimes set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code, as amended.
(3) “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code.

SEC. 18.SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because 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.