Contents
Cal Poly Pomona

California Government Code 11135-CSU Accessibiity Requirements

GOVERNMENT CODE  
Title 2.  Government of the State of California  
Division 3.  Executive Department  
Part 1.  State Departments and Agencies  
Chapter 1.  State Agencies  
Article 9.5.  Discrimination


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Cal Gov Code § 11135 (2007)


§ 11135.  Prohibited discrimination



(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, 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 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) of this section 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 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 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 subdivisions (p) and (q) of 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.

HISTORY:

Added Stats 1977 ch 972 § 1. Amended Stats 1992 ch 913 § 18 (AB 1077) ; Stats 1994 ch 146 § 66 (AB 3601) ; Stats 2001 ch 708 § 1 (AB 677) ; Stats 2002 ch 300 § 4 (AB 3035) , ch 1102 § 2.5 (SB 105) ; Stats 2003 ch 784 § 1 (SB 302) ; Stats 2005 ch 706 § 20 (AB 1742) , effective January 1, 2006; Stats 2006 ch 182 § 1 (SB 1441) , effective January 1, 2007.

NOTES:


Amendments:
 


1992 Amendment:

(1) Added subdivision designation (a); (2) deleted "physical or mental" after "sex, color, or"; and (3) added subd (b).
 


1994 Amendment:

Routine code maintenance.
 


2001 Amendment:

(1) Amended subd (a) by adding (a) "full and equal access to"; and (b) "conducted, operated, or administered by the state or by any state agency, is"; and (2) substituted subd (c) for former subd (c) which read: "(c) As used in this section, 'disability' means any of the following with respect to an individual: (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual, (2) a record of an impairment as described in paragraph (1), or (3) being regarded as having an impairment as described in paragraph (1)."
 


2002 Amendment:

(1) Added "race, national origin," after "on the basis of" in subd (a); and (2) added subd (d). (As amended Stats 2002 ch 1102 , compared to the section as it read prior to 2002. This section was also amended by an earlier chapter, ch 300. See Gov C § 9605.)
 


2003 Amendment:

(1) Redesignated former subd (c) to be subd (c)(1); and (2) added subd (c)(2).
 


2005 Amendment:

Added the last sentence of subd (a).
 


2006 Amendment:

Added (1) "sexual orientation," after "religion, age, sex," in subd (a); (2) the comma after "mental or physical disability" in subd (c)(1); and (3) subds (e) and (f).
 


Note

Stats 1992 ch 913 provides:

SECTION 1. It is the intent of the Legislature in enacting this act to strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 (Public Law 101-336) and to retain California law when it provides more protection for individuals with disabilities than the Americans with Disabilities Act of 1990.

Stats 2005 ch 706 provides:

SEC. 40. It is the intent of the Legislature in amending Section 11135 of the Government Code to construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in Garcia v. California State University (Aug. 15, 2005, B178329) [131 Cal. App. 4th 1283, 2005 Cal. App. LEXIS 1267].

SEC. 41. The provisions of this act shall apply prospectively only, except with respect to the amendments made to Section 11135 of the Government Code.
 


Collateral References:

3 Witkin Summary (10th ed) Agency and Employment § 334.

8 Witkin Summary (10th ed) Constitutional Law §§ 892, 957.

3 Witkin Cal. Evidence (4th ed) Presentation at Trial § 222.

Witkin Procedure (4th ed) Judgment § 229.

Uniform complaint procedures; nondiscrimination: 5 Cal Code Reg §§ 4600 et seq., 4910 et seq.

Prohibited practices; special accomodations: 5 Cal Code Reg §§ 55521, 55522.

Nondiscrimination in programs or activities receiving state financial assistance: 5 Cal Code Reg §§ 59300 et seq.; 9 Cal Code Reg §§ 10800 et seq.; 22 Cal Code Reg §§ 98000 et seq.
 


Law Review Articles:

Employers and Employees: Discrimination: 14 CEB Cal Bus L Rep 225.

Mandatory retirement: Past, present and future of an anachronism. 5 Western St LR 1.
 


Annotations:

Application of state law to sex discrimination in employment. 87 ALR3d 93.

Application of state law to age discrimination in employment. 96 ALR3d 195.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 ALR4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap. 78 ALR4th 265.

Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap. 81 ALR4th 144.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26.



Hierarchy Notes:

  Tit. 2, Div. 3 Note

  Tit. 2, Div. 3, Pt. 1, Ch. 1, Art. 9.5 Note





NOTES OF DECISIONS



Gov. Code, § 11135 , providing no person shall on the basis of physical disability be denied benefits or be subject to discrimination under any program or activity funded directly by the state or receiving any financial assistance from the state did not require a municipal court in which a hearing impaired defendant was convicted of a traffic infraction to appoint at public expense an interpreter to assist defendant in traffic school, to which he requested referral in lieu of a fine. The municipal court's discretionary referral to traffic school did not constitute a "program or activity" within the meaning of Gov. Code, § 11135 . Neither did the private traffic school itself. People v. Levinson (1984, App Dep't Super Ct ) 155 Cal App 3d Supp 13, 203 Cal Rptr 426, 1984 Cal App LEXIS 2060.

In an action against a city for relief under federal and state statutes (29 USCS § 794; Gov. Code, § 11135 ) and regulations (28 C.F.R. § 42.501 et seq., 45 C.F.R. § 84.1 et seq.; 22 Cal. Admin. Code, tit. 22, § 98000 et seq.), concerning access by handicapped persons to activities receiving federal and state financial aid, the trial court properly determined that the statutes and regulations applicable to new construction did not apply new architectural standards to require removal of all architectural barriers in existing facilities, and thus did not apply new standards to a police station constructed in 1946, with no structural alterations that would invoke the new standards. Martin v. City of Los Angeles (1984, 2nd Dist) 162 Cal App 3d 559, 209 Cal Rptr 301, 1984 Cal App LEXIS 2806.

Under federal and state statutes and regulations concerning access by handicapped persons to activities receiving federal and state financial aid (29 USCS § 794; Gov. Code, § 11135 ; 28 C.F.R. § 42.501 et seq.; 45 C.F.R. § 85.1 et seq.; 22 Cal. Admin. Code, tit. 22, § 98000 et seq.), the requirements are focused on the program, and the facility (or building) is only one factor to be considered in determining whether the program is accessible. A program, when viewed in its entirety, must be readily accessible to handicapped persons, but that does not require each facility to be so accessible. Accordingly, in an action concerning wheelchair access to a police station, the trial court properly found access was adequate for preexisting facilities, where the evidence indicated in part that a parking space was reserved for handicapped persons and a rear entrance to the station from the parking lot, where access was provided for handicapped persons arriving by bus, and where there was no evidence that any handicapped person had ever sought and been denied access to the police station, and no evidence that any handicapped person had been subjected to discrimination under any program at the police station. Martin v. City of Los Angeles (1984, 2nd Dist) 162 Cal App 3d 559, 209 Cal Rptr 301, 1984 Cal App LEXIS 2806.

There is a private right of action under Gov C § 11135 , prohibiting discrimination against handicapped persons by any program or activity funded directly by the state or receiving any financial assistance from the state. California has stated a policy to achieve, in so far as possible, the total integration of handicapped persons into the main stream of society. Among the numerous handicapped rights statutes scattered throughout the California Codes is an unequivocal statement that it is California's policy to encourage and enable disabled persons to participate fully in the social and economic life of the state (Gov C § 19230(a)). Gov C § 11136, providing an administrative remedy, is not written in mandatory or exclusive terms and does not preclude a private judicial remedy. Greater Los Angeles Council on Deafness v. Zolin (1987, CA9 Cal ) 812 F2d 1103, 1987 US App LEXIS 3194.

There is a private right of action under Gov C § 11135 , prohibiting discrimination by any program or activity funded directly by the state or receiving any financial assistance from the state. Gov C § 11136, providing an administrative remedy, is not written in mandatory or exclusive terms and does not preclude a private judicial remedy. Greater Los Angeles Council on Deafness v. Zolin (1987, CA9 Cal ) 812 F2d 1103, 1987 US App LEXIS 3194.

Although a university, which was organized as a nonprofit religious corporation, fired plaintiff after she engaged in extramarital sex and became pregnant, plaintiff failed to raise a triable issue of fact regarding her discrimination claim under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), even if the university received state funds. Although Gov. Code, § 11135 , prohibits discrimination by any program receiving state funds, this statute is not part of FEHA and did not affect the university's exemption, as a nonprofit religious corporation, under FEHA (Gov. Code, § 12926, subd. (c)). FEHA explicitly excludes such a corporation from its definition of employer without regard to whether the corporation received state funds. Arriaga v. Loma Linda University (1992, 4th Dist) 10 Cal App 4th 1556, 13 Cal Rptr 2d 619, 1992 Cal App LEXIS 1328.

In an action by a university employee who was fired after she engaged in extramarital sex and became pregnant, the trial court properly granted judgment in favor of the university on plaintiff's cause of action based on Gov. Code, § 11135 (prohibited discrimination by program receiving state funds). The Legislature intended Gov. Code, § 11135 , to provide an administrative remedy for discrimination, and not to add an additional private remedy for damages. Gov. Code, § 11135 does not provide a private right of action. Arriaga v. Loma Linda University (1992, 4th Dist) 10 Cal App 4th 1556, 13 Cal Rptr 2d 619, 1992 Cal App LEXIS 1328.

Plaintiff lacked standing to bring a civil rights action against domestic violence shelters for violation of Gov C § 11135 by unlawfully refusing to provide him with shelter because he was a man, where plaintiff did not allege that when he suffered domestic violence, he asked for shelter and was denied. Blumhorst v. Jewish Family Servs. of L.A. (2005, Cal App 2nd Dist) 126 Cal App 4th 993, 24 Cal Rptr 3d 474, 2005 Cal App LEXIS 223.

Gov C §§ 11135 , 11139, do not provide for standing by a party who is not personally injured. Blumhorst v. Jewish Family Servs. of L.A. (2005, Cal App 2nd Dist) 126 Cal App 4th 993, 24 Cal Rptr 3d 474, 2005 Cal App LEXIS 223.

 

As interpreted by Cal. Code Regs. tit. 22, § 98010, Gov C § 11135 did not apply to a disparate impact claim based on admission policies because the California State University was a state agency, not a recipient of state support, and thus did not conduct a "program or activity" for the purposes of § 11135. Garcia v Board of Trustees of California State University (2005, 2nd Dist) 131 Cal App 4th 1283, 32 Cal Rptr 3d 724, 2005 Cal App LEXIS 1267.

Gov C 11135( a) did not apply to a disparate impact claim based on university admission policies against individual defendants because Cal. Code Regs. tit. 22, § 98010 defined a "recipient" as one who regularly employed five or more persons. Garcia v Board of Trustees of California State University (2005, 2nd Dist) 131 Cal App 4th 1283, 32 Cal Rptr 3d 724, 2005 Cal App LEXIS 1267.

Gov C § 11135( a), does not apply to the California Polytechnic University at San Luis Obispo . Garcia v Board of Trustees of California State University (2005, 2nd Dist) 131 Cal App 4th 1283, 32 Cal Rptr 3d 724, 2005 Cal App LEXIS 1267.

Caselaw relied upon by a state fair has been superseded by a 1999 amendment to Gov C § 11139, which allows private civil actions seeking equitable relief; accordingly, persons with physical disabilities who require the use of a wheelchair for mobility are not barred from bringing a claim under Gov C § 11135 . McIver v. Cal. State Exposition & Fair (2003, ED Cal) 2003 US Dist LEXIS 26991.