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AB-2947 Discrimination: employee complaint: standard of proof.(2019-2020)

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Date Published: 02/21/2020 09:00 PM
AB2947:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2947

Introduced by Assembly Member Bonta

February 21, 2020

An act to add Sections 12940.5 and 12950.5 to the Government Code, relating to discrimination.


LEGISLATIVE COUNSEL'S DIGEST


AB 2947, as introduced, Bonta. Discrimination: employee complaint: standard of proof.
Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
Under the act, proof of the intent to discriminate in housing may be established using either direct or circumstantial evidence.
This bill would provide that an intentional violation of the act regarding employment occurs when a person intends to discriminate using any of the protected characteristics of any person as a motivating factor in the employment action or decision even though other factors may have also motivated the action or decision, as proven by direct or circumstantial evidence.
The act requires an employer, as defined, to maintain personnel records and files of employees, applicants, and terminated employees for at least 2 years, with specified exemptions.
This bill would also require an employer to maintain records of employee complaints, as defined, for at least 5 years, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 12940.5 is added to the Government Code, to read:

12940.5.
 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, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person is a motivating factor in the action or decision even though other factors may have also motivated the action or decision. An intent to discriminate may be established by direct or circumstantial evidence.

SEC. 2.

 Section 12950.5 is added to the Government Code, to read:

12950.5.
 (a) As used in this section, “employee complaint” means a complaint filed through the internal complaint process of the employer.
(b) Notwithstanding any law, and in addition to the requirements set forth in Section 12946, an employer shall maintain records of employee complaints alleging harassment, discrimination, or any other violation of this article for a period of not less than five years after the last day of employment of the complainant or any alleged perpetrator named in the complaint, whichever is later.
(c) If an employer violates this section, the department may seek an order requiring the employer to comply.