This year, the California Legislature passed and the Governor approved the Contraceptive Equity Act of 2022 (Senate Bill 523 or SB 523), a piece of legislation intended to increase the ability of Californians to exercise full control over their reproductive decisions and to expand coverage and decrease access barriers to reproductive health services.
Among other things, Senate Bill 523 makes changes to the Fair Employment and Housing Act (FEHA) that take effect on January 1, 2023. SB 523 expands the FEHA to include “reproductive health decision-making” in the list of classifications protected by the FEHA. Reproductive health decision-making means, without limitation, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.” As a result, beginning January 1, 2023, the FEHA will prohibit employment-related discrimination, harassment, and retaliation based on employees’ reproductive health decision-making. SB 523 also makes it unlawful for an employer to require, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decision-making.
SB 523 makes clear that the protected classification “sex” may also include reproductive health decision-making and the two classifications may overlap. “Sex” also includes things such as (1) pregnancy or medical conditions related to pregnancy; (2) childbirth or medical conditions related to childbirth; (3) breastfeeding or medical conditions related to breastfeeding; and (4) gender, gender identity, and gender expression.
The FEHA applies to private employers (its harassment protections apply to employers with one or more employees, while the remaining FEHA protections apply to employers with five or more employees) but the FEHA does not generally apply to non-profit religious associations or non-profit religious corporations. Nonprofit public benefit corporations formed by or affiliated with a religion that operates an educational facility as its sole or primary activity are permitted under the FEHA to restrict employment and promotion to individuals of a particular religion. However, such public benefit corporations are still subject to the FEHA in all other respects.
To prepare for these changes to the FEHA that take effect on January 1, 2023, we recommend that employers revise their discrimination, harassment, and retaliation policies and other relevant policies to incorporate the new protections for reproductive health decision-making, including adding reproductive health decision-making to the list of protected classifications these policies set forth. Employers should also advise supervisors of the changes in the law, and keep in mind that these changes should be incorporated into the mandatory non-supervisory and supervisory harassment training.
The Contraceptive Equity Act of 2022 also makes various changes to the law governing health care service plans and health insurance policies intended to improve equitable access to preventive contraceptive care, which apply to health care service plan contracts and health insurance policies issued, amended, renewed, or delivered on and after January 1, 2024.