California has expanded discrimination protections in two important new ways that will become effective on January 1.

SB 1100 (Portantino, D-La Canada-Flintridge) makes it an unlawful employment practice for an employer “to include a statement in a job advertisement, posting, application, or other material that an applicant must have a driver’s license” unless the employer meets certain conditions. Those conditions are that the employer must reasonably expect driving to be one of the position’s job functions; and the employer must reasonably believe that satisfying the job function using alternative transportation “would not be comparable in travel time or cost to the employer.” SB 1100 defines “alternative form of transportation” to include using a ride-hailing service, using a taxi, carpooling, bicycling, and walking. SB 1100’s legislative history contends that a driver’s license is irrelevant to most jobs and that requiring a driver’s license disproportionally impacts “people with disabilities, low-income individuals, and those living in urban areas with access to public transportation who choose not to drive or own a vehicle.”

SB 1137 (Smallwood-Cuevas, D-Orinda) prohibits discrimination on the basis not just of individual protected traits, but also on the basis of the intersectionality (the combination of two or more protected traits.) Of interest to employers, AB 1137 amends FEHA to clarify that the protected characteristics enumerated in the statute include a combination of those characteristics.

The legislative history of SB 1137 describes the concept of intersectionality as follows:

Intersectionality is an analytical framework that sets forth that different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm. The framework and term “intersectionality,” coined and popularized by legal scholar Professor Kimberlé Williams Crenshaw, captures the unique, interlocking forms of discrimination and harassment experienced by individuals in the workplace and throughout society . . .

Through SB 1137, California’s Legislature affirms the decision of Lam v. University of Hawai’i (9th Cir. 1994) 40 F.3d 1551, where the Ninth Circuit found that when an individual claims multiple bases for discrimination or harassment, it may be necessary to establish whether the discrimination or harassment occurred on the basis of a combination of these factors, not just one protected characteristic alone.