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 SUBJECT Fair Employment: Familial Status DESCRIPTION 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). BACKGROUND 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 (more) 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 SB 836 (Kuehl) 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 SB 836 (Kuehl) Page 4 various statutes. COMMENT 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 status." 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 SB 836 (Kuehl) Page 5 responsibilities. 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 SB 836 (Kuehl) Page 6 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 child." "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 SB 836 (Kuehl) Page 7 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 SB 836 (Kuehl) 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 275525] 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. Stamps.com (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. SB 836 (Kuehl) 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. 2001).] 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 SB 836 (Kuehl) 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 SB 836 (Kuehl) Page 11 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 responsibilities. 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 HISTORY 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 **************