Sen. Steven Bradford, (D-Gardena) has introduced Senate Bill 788 to prohibit considering race, religion, sexual orientation and other protected classes when determining a percentage of permanent disability. This bill’s text states that it purpose is to root out biased and discriminatory practices in the state’s workers’ compensation system. The California Applicants’ Attorneys Association (CAAA) is sponsoring the bill and is certainly pushing that angle arguing that current law allows and promotes racial and gender discrimination and that this bill would bring an end to that. A noble cause to be sure, but is it just a red herring, a ruse to allow a more nefarious purpose?
If passed, SB 788 would not allow approximate percentages of permanent disability to be calculated using “race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics.” Notice anything odd here? As the old saying goes, “two of these things are not like the others, two of these things just don’t belong”.
By adding in age and genetic characteristics, this bill opens the door for wiping out apportionment to degenerative conditions. Degenerative conditions, by their very nature, get worse over time. As the worker gets older, their condition continues to degenerate. This is definitional. Are we going to see arguments that we can no longer apportion to arthritis or other degenerative conditions if this bill passes? And, what about genetic characteristics? How many degenerative conditions like arthritis have a genetic component?
This bill uses a worthy cause, eliminating racial and gender discrimination, as a ruse to start eliminating apportionment to genetic conditions. And, cloaked in this noble cause, it will be easy to argue that anyone opposed to this bill wants to not eliminate that discrimination. This would paint opponents as bigots and make opposition less likely. If ending racial and gender discrimination were truly the purpose, then leave it at that and let's get this done. It appears though that ending discrimination is just a cover to allow eliminating discrimination in other areas, something they could not openly do so easily.
The approximate percentage of the permanent disability caused by other factors shall not include consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics.