(a) A person shall not be discriminated against in the terms, conditions, and privileges of his or her employment with the state under this section based on his or her medical condition, mental disability, or physical disability as those terms are defined in subdivisions (i), (j), and (l) of Section 12926. A person shall not be retaliated against because he or she has opposed any practice made an unlawful employment practice, or made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

(b) For purposes of this article, “discrimination” includes harassment.

(c) (1) Except as otherwise provided in paragraph (2), if the board finds that discrimination has occurred in violation of subdivision (a) of this section, the board shall issue and cause to be served on the appointing authority an order requiring the appointing authority to cause the discrimination to cease and desist and to take any action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, and compensatory damages, which, in the judgment of the board, will effectuate the purposes of this section. Consistent with this authority, the board may establish rules governing the award of compensatory damages. The order may include a requirement of reporting the manner of compliance.

(2) Notwithstanding paragraph (1), this paragraph applies to state employees in State Bargaining Unit 6 or 8. If the board finds that discrimination has occurred in violation of subdivision (a) of this section, the board shall issue and cause to be served on the appointing authority an order requiring the appointing authority to cause the discrimination to cease and desist and to take any action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, adding additional seniority, and compensatory damages, which, in the judgment of the board, will effectuate the purposes of this section. Consistent with this authority, the board may establish rules governing the award of compensatory damages. The order may include a requirement of reporting the manner of compliance.

(d) Any person claiming discrimination based upon medical condition, mental disability, or physical disability within the state civil service may submit a written complaint with the appointing authority that states the particulars of the alleged discrimination. The written complaint shall be filed with the appointing authority within one year of the alleged discrimination or the failure to act. Any person claiming discrimination based upon medical condition, mental disability, or physical disability may file a complaint of discrimination with the board subsequent to lodging a complaint with the appointing authority. Complaints of discrimination filed with the board shall satisfy and comply with board rules.

(e) If an employee of the appointing authority refuses, or threatens to refuse, to cooperate in the investigation of a complaint of discrimination under subdivision (a) of this section, the appointing authority may seek assistance from the board. The board may provide for direct investigation or hearing of the complaint, the use of subpoenas, or any other action that will effectuate the purpose of this section.

(f) If a person demonstrates by a preponderance of the evidence that the person’s opposition to any practice made an unlawful employment practice under this section, or the person’s charging, testifying, assisting, or participation in any manner in an investigation, proceeding, or hearing under this section, was a contributing factor in any adverse employment action taken against him or her, the burden of proof shall be on the supervisor, manager, employee, or appointing power to demonstrate by clear and convincing evidence that the alleged adverse employment action would have occurred for legitimate, independent reasons even if the person had not engaged in activities protected under this section. If the supervisor, manager, employee, or appointing power fails to meet this burden of proof in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the person shall have a complete affirmative defense to the adverse employment action.

(g) As used in this section, “adverse employment action” includes promising to confer, or conferring, any benefit, effecting, or threatening to effect, any reprisal, or taking, or directing others to take, or recommending, processing, or approving, any personnel action, including, but not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action.

(Repealed and added by Stats. 2012, Ch. 360, Sec. 69. (SB 1309) Effective January 1, 2013.)