BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



           ------------------------------------------------------------ 
          |SENATE RULES COMMITTEE            |                   SB 836|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 651-1520         Fax: (916) |                         |
          |327-4478                          |                         |
           ------------------------------------------------------------ 
           
                                         
                                 THIRD READING


          Bill No:  SB 836
          Author:   Kuehl (D)
          Amended:  4/12/07
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  4-1, 4/24/07
          AYES:  Corbett, Harman, Kuehl, Steinberg
          NOES:  Ackerman

          SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8 


           SUBJECT  :    Fair employment:  familial status

           SOURCE  :     Legal Aid Society  Employment Law Center
                      Equal Rights Advocates
                      State of California Commission on the Status of  
          Women


           DIGEST  :    This bill adds familial status to the list of  
          characteristic (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.

           ANALYSIS  :    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  
                                                           CONTINUED





                                                                SB 836
                                                                Page  
          2

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

          This bill defines "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 defines "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 defines "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 various  
          statutes.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

           SUPPORT  :   (Verified  5/21/07)

          Commission on the Status of Women, State of California  
          (co-source)
          Equal Rights Advocates (co-source)
          Legal Aid Society - Employment Law Center (co-source)
          9to5 Bay Area
          Amalgamated Transit Union
          American Federation of State, County and Municipal  
          Employees 
          AFSME Retirees, Chapter 36
          American Federation of Teachers, AFL-CIO
          Association of California Caregiver Resource Centers
          Berkeley Federation of Teachers
          California Alliance for Retired Americans
          California Association of Community Organizers for Reform  







                                                                SB 836
                                                                Page  
          3

          Now
          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
          California Teamsters
          California Women's Law Center
          Central Labor Council of Alameda County, AFL-CIO
          Communications Workers of America
          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
          Mothers & More
          North Bay Labor Council, AFL-CIO
          Office & 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, California State  
          Council
          Service Employees International Union, Local 1000
          Service Employees International Union, Local 1021
          Service Employees International Union, Local 1877
          Strategic Committee of Public Employees, Laborers'  
          International Union
            of North America
          Transgender Law Center
          UNITE HERE!







                                                                SB 836
                                                                Page  
          4

          United Food and Commercial Workers Union, Western States  
          Council 
          Warehouse Union Local 6, ILWU

           OPPOSITION  :    (Verified  5/21/07)

          CalChamber

           ARGUMENTS IN SUPPORT  :    The author's office 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."

           ARGUMENTS IN OPPOSITION  :    The California Chamber of  
          Commerce state that, "We oppose SB 836 (Kuehl), as amended  
          for the following reasons, first this bill is unnecessary,  
          combined federal and state laws already provide extensive  
          family care protections for employees.  Under these laws,  
          it is possible for an employee to take many months of full  
          or modified leave time for a family member's illness or  
          pregnancy.  The number and rate of successful suits under  
          these laws shows they provide more than sufficient  
          protections.  According to a study by the UC Hastings  
          Center for Worklife Law, under federal law alone, the  
          number of lawsuits alleging "family responsibility  
          discrimination" has increased nearly 400 percent more in  
          the past decade than the prior decade.  Moreover, employees  
          win about half the case currently filed under federal and  
          state family statutes, a rate considered unusually high.

          "Second, this bill will invite frivolous litigation.  The  
          Fair Employment and Housing Act automatically awards  
          attorneys' fees to a prevailing plaintiff, though the  
          threshold for filing a lawsuit is low.  This imbalance in  
          the law is a magnet for frivolous lawsuits.  Employees  
          hiring attorneys' on a contingency fee basis pay nothing to  
          initiate a frivolous suit, but employers who successfully  
          defend these cases are still left to pay all of their own  
          attorneys' fees.  Since almost every employee has a spouse,  







                                                                SB 836
                                                                Page  
          5

          child, parent, or sibling that might nee supervision or  
          transportation, "famililial status" can serve as a new,  
          easy form of discrimination to allege.

          "Finally, this bill may result in burdensome expanded leave  
          rights.  SB 836 appears to be the first step in a broader  
          agenda to expand employee family care leave.  Under current  
          law, employers must provide extensive modified schedules or  
          full-time leave for purpose of family medical situations.   
          SB 836 appears to open the door to new mandates on  
          employers to provide modified schedules or leave to  
          accommodate babysitting or driving children to soccer  
          practice.  Currently, employees can be held accountable if  
          their work performance is negatively impacted by too much  
          missed work due, for example, to extended daycare issues.   
          Although proponents of the bill claim that SB 836 is not  
          intended to expand leave rights to these situations, we  
          believe the bill significantly opens door for them."


          RJG:do 5/23/07   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****