BILL ANALYSIS                                                                                                                                                                                                    

                           SENATE JUDICIARY COMMITTEE
                        Senator Ellen M. Corbett, Chair
                           2007-2008 Regular Session

          SB 836                                                 S
          Senator Kuehl                                          B
          As Amended April 12, 2007
          Hearing Date: April 24, 2007                           8
          Government Code                                        3
          GMO:jd                                                 6

                        Fair Employment: Familial Status


          This bill would add "familial status" to the list of  
          characteristics (i.e., race, religious creed, color,  
          national origin, ancestry, physical disability, mental  
          disability, medical condition, marital status, sex, age or  
          sexual orientation) that are prohibited bases of  
          discrimination under the employment provisions of the Fair  
          Employment and Housing Act (FEHA). 


          Various statutes, such as the Fair Employment and Housing  
          Act (FEHA) and the Unruh Civil Rights Act, prohibit  
          discrimination in employment, housing, public accommodation  
          and services provided by business establishments on the  
          basis of specified personal characteristics such as sex,  
          race, color, national origin, religion, and disability.  
          Over time, these statutes have been amended to include  
          other characteristics such as disability, medical condition  
          and marital status.  Also over time, other statutes were  
          amended to reflect the state's public policy against  
          discrimination in all forms.  

          One area that has experienced a significant increase in  
          litigation is "family responsibility discrimination" in  
          employment.  California's FEHA does not directly prohibit  
          discrimination based on an employee's status as a family  


          SB 836 (Kuehl)
          Page 2

          caregiver.  However, employees with family caregiving  
          responsibilities who work full- or part-time, job-share,  
          use flextime, or follow some type of modified compressed  
          work schedule and were subjected to adverse employment  
          actions have litigated against their employers using  
          various federal statutes.  For example, Title VII of the  
          Civil Rights Act of 1964, 42 U.S.C.  2000e-16(2005), which  
          prohibits employment discrimination on the basis of sex,  
          race, color, religion and national origin, has been used to  
          protect family caregivers in the workplace.  In 1978 Title  
          VII was amended to expand its protections to cover  
          discrimination on the basis of pregnancy.  That law has  
          been of limited use in challenging adverse employment  
          actions arising from the need to care for or rear a child  
          once born. [See Piantanida v. Wyman Center, Inc., 116 F.3d  
          340, 342 (8th Cir. 1997) (holding that claim of  
          discrimination based on plaintiff's status as a new parent  
          is not recognizable under the Pregnancy Discrimination Act,  
           42 U.S.C. 2000e(k) (2005))]. The Family and Medical Leave  
          Act of 1993 (FMLA) [29 U.S.C. 
           2601 et seq. (2005)] and the Americans with Disabilities  
          Act of 1990 (ADA) [42 U.S.C.  12101 et seq. (2005)] have  
          also been used to protect family caregivers in the  
          workplace.  As well, the Equal Pay Act of 1963 has provided  
          some basis for challenging wage discrimination faced by  
          workers providing family care.  But for those who have  
          tried to use these federal laws, the challenge has proven  
          to be difficult and complicated and, because family  
          caregiving responsibility is not directly addressed by the  
          statutes, the path has been tortuous.

          Despite the difficulty of launching a lawsuit against an  
          employer for discrimination based on family caregiving  
          responsibilities, where the federal statutes do not  
          directly provide protection, there has been a significant  
          increase in these cases. In fact, according to a study  
          performed by the University of California-Hastings Center  
          for Worklife Law (Center), the number of family  
          responsibility discrimination cases increased to 481 in the  
          10 years from 1996 to 2005 - nearly 400 percent more than  
          the 97 in the previous decade. These cases involve workers,  
          both men and women, alleging that they were discriminated  
          against by their employers because of their family  
          caregiving responsibilities ranging from raising young  
          children, on the one hand, to caring for elderly relatives  


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          Page 3

          on the other.  Litigation of these cases can be very  
          complicated, difficult, and expensive.  And, according to  
          articles written for employers by human resource journals,  
          employers are increasingly confused about the scope of  
          their responsibility and exposure to liability for  
          employment policies or actions adversely affecting  
          employees with family caregiving responsibilities.  

          FEHA prohibits discrimination on the basis of familial  
          status, but only as to discrimination in housing, not to  
          the workplace.  This bill would address the question of  
          discrimination in the workplace on the basis of familial  
          status directly, by including "familial status" on the list  
          of characteristics that, if used as the basis for an  
          adverse employment action, is prohibited discrimination  
          under the state's Fair Employment and Housing Act.  

                             CHANGES TO EXISTING LAW
           Existing law,  the Fair Employment and Housing Act (FEHA)  
          prohibits discrimination in housing and employment on the  
          basis of race, religious creed, color, national origin,  
          ancestry, physical disability, mental disability, medical  
          condition, marital status, sex, age, or sexual orientation.  
           [Government Code Sec. 12920 et seq. All references are to  
          the Government Code unless otherwise indicated.]

           This bill  would add "familial status" to the list of  
          characteristics on which basis a person may not be  
          discriminated against in employment.

           This bill  would define "familial status" in this context to  
          include "being an individual who is or who will be caring  
          for or supporting a family member."

           This bill  would define "caring for or supporting" a family  
          member as providing supervision or transportation;  
          providing psychological or emotional comfort and support;  
          addressing medical, educational, nutritional, hygienic or  
          safety needs; or attending to an illness, injury or mental  
          or physical disability.

           This bill  would define "family member" as a child, a  
          parent, a spouse, a domestic partner, a parent-in-law, a  
          sibling, a grandparent or a grandchild, as defined in  


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          Page 4

          various statutes.

          1.   Need for the bill
            The author states:

               Although discrimination based on "familial status" is  
               explicitly prohibited under the housing provisions of  
               the FEHA, the same is not true under the employment  
               provisions.  Presently, the FEHA does not adequately  
               and explicitly protect California workers from being  
               discriminated against at work based on their familial  
               status.  Yet research shows that employees are  
               regularly discriminated against because of "familial  

               Currently, if an employee experiences discrimination  
               at work based on his/her familial status for example,  
               her responsibilities as a mother of young children or  
               his responsibilities to care for an elderly parent or  
               disabled spouse - the employee's only recourse is to  
               rely on alternative theories based on existing law for  
               relief.  For example, the employee may argue that  
               he/she experienced discrimination based on sex (using  
               a gender stereotyping theory) or disability (under an  
               "associated with" a person with a disability theory).   
               But not all cases of family responsibilities  
               discrimination fit neatly within existing legal  
               theories.  As a result, many workers are falling  
               through the cracks of existing civil rights  
               protections, while at the same time employers are  
               finding themselves confused about the scope of their  
               potential liability.

            According to the Worklife Law Center there are about 650  
            cases based on family caregiving responsibilities filed  
            under various statutes with half of the cases being won  
            by employees, an unusually high number for employment  
            practices litigation.  Although no federal statute  
            expressly forbids family responsibilities discrimination,  
            some states and local entities such as Alaska and the  
            District of Columbia expressly prohibit discrimination  
            against parents or employees with family  


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          Page 5


            By adding "familial status" to the list of FEHA-protected  
            characteristics in employment, SB 836 would expressly  
            prohibit discrimination based on an employee or applicant  
            for employment having family caregiving responsibilities.

          2.    Familial status: defining a complex phrase

             Currently, "familial status" is recognized in the housing  
            provisions of FEHA as a characteristic of a protected  
            class.  Familial status, under  12955.2 of the  
            Government Code means an under-age person (18 or younger)  
            who resides with a parent or another person with custody  
            of the under-18 person or with the designee of the parent  
            or person with custody by written consent.  The "familial  
            status" protections provided by FEHA also applies to a  
            pregnant individual who is under 18, or who is in the  
            process of securing legal custody of a minor, or who is  
            in the process of being given care and custody of a minor  
            by a state or county agency. 

            In the context of the workplace, SB 836 would define  
            "familial status" to include "being an individual who is  
            or who will be caring for or supporting a family member."

            a.    "Family member" definitions  

               "Family member" would be defined as 

                           "a child as defined in Section 3302 of  
                    the Unemployment Insurance Code."

                    In turn, the Unemployment Insurance Code defines  
                    "a child" as "a biological, adopted, or foster  
                    son or daughter, a stepson or stepdaughter, a  
                    legal ward, a son or daughter of a domestic  
                    partner, or the person to whom the employee  
                    stands in loco parentis."

                    The definition is lifted from that section of the  
                    Paid Family Leave provisions of the Unemployment  
                    Insurance Code.  These provisions allow the  
                    payment of "wage replacement benefits" under the  
                    state's temporary family disability insurance for  


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                    a period of six weeks to workers who take time  
                    off work to care for a seriously ill child,  
                    parent, spouse, domestic partner or to bond with  
                    a minor child within one year of birth or  
                    placement for foster care or adoption.     

                    Under this bill, an aunt who has taken over the  
                    care of a niece or nephew, but who has not taken  
                    steps to be appointed the legal guardian of the  
                    child, could be protected from discrimination if  
                    she takes off work to take care of this child and  
                    returns to work later to find her employment  
                    terminated for no other reason than that she had  
                    taken leave to fulfill her familial caregiving  
                    responsibilities, when other employees were able  
                    to take leave for other purposes.  The aunt in  
                    this case would be an employee who is a "person  
                    who stands in loco parentis" to the child.  The  
                    burden of proof generally used for all other  
                    employment discrimination cases would apply to  
                    these types of cases. (See Comment 4.)

                           "a parent as defined in Section 3302 of  
                    the Unemployment Insurance Code."

                    Thus "a parent" would mean "a biological, foster,  
                    or adoptive parent, a stepparent, a legal  
                    guardian, or other person who stood in loco  
                    parentis to the employee when the employee was a  

                           "a spouse, which means the partner to a  
                    lawful marriage"

                    This was also lifted from Unemployment Insurance  
                    Code  3302.  There is no definition of "spouse"  
                    in the Family Code.

                           "a domestic partner as defined in Section  
                    297 of the Family Code"

                    Section 297 requires registration of qualified  
                    partners with the Secretary of State.

                           "a parent-in-law which means the parent  


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                    of a spouse or domestic partner"

                           "a sibling as defined in paragraph (c) of  
                     362.1 of the Welfare and Institutions Code."

                    Thus "a sibling" is a child related to another  
                    person by blood, adoption, or affinity through a  
                    common legal or biological parent.

                           "a grandparent"

                    By including "grandparent" and "grandchild" in  
                    the definition of "family member," the bill would  
                    sidestep the need to show that an employee is a  
                    grandparent who stands in loco parentis to a  
                    child or that the employee's grandparent stood in  
                    loco parentis to the employee when the employee  
                    was a child.

                           "a grandchild"

            b.   "Caring for or supporting" definition  

               Under SB 836, "caring for or supporting" a family  
               member means: 
               (a) providing supervision or transportation; or
               (b) providing psychological or emotional comfort and  
               support; or
               (c) attending to an illness, injury, or mental or  
               physical disability; or
               (d) addressing medical, educational, nutritional,  
               hygienic, or safety needs.

               The described activities encompass many of the fact  
               patterns of cases that have been brought as "family  
               caregiving responsibility" cases under the five  
               federal laws mentioned earlier.  For example:

                           A single father who worked as a  
                    firefighter for 13 years and who was in line for  
                    a promotion was passed over because of his family  
                    responsibilities.  He was criticized for trading  
                    workshifts - which was permitted under employer  


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          Page 8

                    policy - to cover his child care needs.  A jury  
                    verdict in his favor was overturned by the  
                    appellate court, but the court also stated that  
                    discrimination based on familial status was not  
                    illegal under FEHA.  The firefighter had sued for  
                    discrimination on the basis of marital status,  
                    and the court held that did not apply in his  
                    case. [Tisinger v. City of Bakersfield,  2002 WL  
                           A vice president of marketing was  
                    terminated while seven months pregnant and  
                    planning to take a maternity leave.  She had had  
                    excellent performance reviews and her supervisor  
                    had placed her name on a list of employees to be  
                    retained during a downsizing. Employer told her  
                    that her position was eliminated, yet another  
                    person was placed in her position. Employer said  
                    she had "mentally checked out" during her  
                    pregnancy. The appellate court found that summary  
                    judgment granted by trial court to the employer  
                    was improper. [Kelly v. (2005) 135  
                    Cal.App.4th 1088 (2d District).]
                           A truck driver for Albertsons took  
                    several months off of work to provide assistance  
                    and comfort for his father who became severely  
                    depressed after the employee's sister was  
                    murdered.  When the employee tried to return to  
                    work he found out he would have to start over as  
                    a probationary employee with no seniority.  He  
                    claimed his circumstances were covered by the  
                    FMLA. Viewing the evidence most favorably for the  
                    employee, the court found enough to create a  
                    triable issue of fact warranting a trial.  
                    [Scamihorn v. General Truck Drivers, Office, Food  
                    and Warehouse Union, Local 952, 282 F.3d 1078  
                    (9th Cir. 2002).]
                           The court upheld a district court's  
                    finding of discrimination in a case involving a  
                    pregnant woman who was not hired as a result of  
                    her potential employer's fear that she would take  
                    family leave. [Wagner v. Dillard Dept. Stores,  
                    2001 WL 967495 (4th Cir. 2001).]
                           A male trooper with the state police  
                    sought to take leave under his employer's  
                    "nurturing leave" policy for primary caregivers.   


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          Page 9

                    His employer told him that "God made women to  
                    have babies and, unless [he] could have a baby,  
                    there is no way [he] could be primary  
                    care[giver]," and that his wife had to be "in a  
                    coma or dead" before he could qualify as a  
                    primary caregiver under the employer's policy.  
                    [Knussman v. Maryland, 272 F.3d 625 (4thCir.  

          3.    Advantages of a FEHA action vs. federal suit under  
            Title VII, FMLA, EPA, ADA, PDA and Title IX  

            As discussed above, discrimination cases have been  
            brought by employees using existing federal statutes  
            that, while providing remedies for some form of  
            discrimination, do not directly address an employee's  
            status as a family caregiver as a protected class.   
            Instead, these employees have had to try to fit their  
            circumstances into pigeonholed definitions in the  
            statutes, or to ask the courts to apply decisional law in  
            many jurisdictions to their case, to be able to fashion  
            some remedy.  While some of the cases were successful,  
            many have not been as successful because of the  
            difficulty of fitting facts to a statute not designed for  
            that type of protection. 

            This bill would create a direct prohibition against  
            discrimination on the basis of familial status under the  
            Fair Employment and Housing Act.  

            Attorneys have relied on Title VII of the Civil Rights  
            Act of 1964 to challenge employers' unfair treatment of  
            family caregivers in the workplace.  Title VII covers all  
            public and private employers with 15 or more employees,  
            and prohibits employment discrimination based on race,  
            color, religion, sex or national origin, and applies to  
            all aspects of the employment relationship, including  
            hiring, compensation, training, benefits, working  
            conditions, discipline, promotion and termination.

            However, California's antidiscrimination statutes under  
            FEHA, while providing more protection than even Title  
            VII, also provides for a longer statute of limitations  
            for filing a complaint and a longer period of time for  
            filing a complaint in court after receipt of a right to  


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          Page 10

            sue letter. [Gov. Code 
             12965 et seq.] 

            To be sure, the addition of familial status as a new  
            basis for the prohibition against discrimination will  
            probably result in more workers taking on their familial  
            caregiving responsibilities knowing that their jobs would  
            not be jeopardized solely due to this commitment to  
            family.  However, an employee who brings a challenge to  
            an employer's policy that results in an adverse  
            employment action will have to prove his or her case in  
            the same manner that other protected classes now prove  
            that they have been discriminated against: by showing  
            disparate treatment, hostile work environment,  
            constructive discharge, retaliation, disparate impact,  
            among others.  And, the current burden of proof, and the  
            shifting of the burden as a case moves through the  
            process, will apply.

          5.    Supporters' Arguments

             SB 836 has garnered broad support from many groups of  
            workers, civil rights advocates, mothers, emancipated  
            youth groups, caregivers, mothers, parents, nurses and  
            teachers.  One supporter, the California Coalition of  
            Caregivers (CCC), states:

               Senate Bill 836 addresses the needs of working  
               families in California who are struggling to meet  
               the competing demands of work and family  
               obligations. A large majority of workers are  
               responsible for some care of a family member  
               whether it be a child, partner or elderly relative.  
               Employers often take unfair employment actions  
               against these working caregivers by passing them  
               over in promotions or terminating their employment  
               altogether because they have family commitments by  
               assuming they are not committed to their jobs or  
               are less reliable at work.

               Specifically listing familial status as a protected  
               classification under FEHA would provide greater  
               protection to workers from being discriminated  
               against based on their family caregiving  
               responsibilities and greater clarity to employers  


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               about their legal obligations to their employees.   
               The bill recognizes the diverse family caregiving  
               arrangements of California's workforce: studies  
               show that families of color are most likely to be  
               caring for elder relatives?The [CCC] supports  
               Senate Bill 836 in that it recognizes that  
               California's diverse population has a variety of  
               family obligations that should not subject them to  
                                                                                       discriminatory treatment in the workplace.

            A co-sponsor, the Legal Aid Society - Employment Law  
            Center, simply states: Senate Bill 836 recognizes that  
            family caregivers make good workers.  Expressly listing  
            familial status as a protected classification under FEHA  
            will help ensure that workers are not unfairly  
            discriminated against based on their  family  

          Support:  9 to5 Bay Area; Amalgamated Transit Union;  
          American Federation of 
                 State, County and Municipal Employees (AFSCME);  
                 AFSME Retirees, Chapter 36; American Federation of  
                 Teachers, AFL-CIO; Association of California  
                 Caregiver Resource Centers; California Alliance for  
                 Retired Americans; California Association of  
                 Community Organizers for Reform Now (ACORN);  
                 California Coalition for Caregivers; California  
                 Conference of Machinists; California Federation of  
                 Teachers; California Labor Federation; California  
                 Nurses Association; California School Employees  
                 Association; California State Employees Association;  
                 California Teachers Association (CTA); California  
                 Teamsters; California Women's Law Center; Central  
                 Labor Council of Alameda County, AFL-CIO;  
                 Communications Workers of America, Local Union 9410;  
                 Engineers and Scientists of California, IFPTE Local  
                 20; Family Caregiver Alliance; Golden Gate  
                 University, School of Law - Women's Employment  
                 Rights Clinic; Honoring Emancipated Youth;  
                 International Association of Machinists & Aerospace  
                 Workers, ATE Lodge 1781; International Federation of  
                 Professional and Technical Engineers, Local 21;  
                 Labor Project for Working Families; Legal Aid  
                 Society - Employment Law Center; Mothers & More;  
                 North Bay Labor Council, AFL-CIO; Office &  


          SB 836 (Kuehl)
          Page 12

                 Professional Employees International Union, Local  
                 29; Office & Professional Employees International  
                 Union, Local 3; Parent Voices; San Mateo County  
                 Central Labor Council; Service Employees  
                 International Union (SEIU), Local 1021; Service  
                 Employees International Union (SEIU), Local 1877;  
                 Strategic Committee of Public Employees, Laborers'  
                 International Union of North America; Transgender  
                 Law Center; UNITE HERE!; United Food and Commercial  
                 Workers Union, Western States Council; Warehouse  
                 Union Local 6, ILWU; One individual

          Opposition: None Known

          Source: Legal Aid Society - Employment Law Center , Equal  
                 Rights Advocates, and the State of California  
                 Commission on the Status of Women (co-sponsors)

          Related Pending Legislation: None Known

          Prior Legislation: None Known