BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 836
                                                                  Page  1

          Date of Hearing:   July 2, 2007

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                              Sandre R. Swanson, Chair
                     SB 836 (Kuehl) - As Amended:  April 12, 2007

           SENATE VOTE  :   25-14
           
          SUBJECT  :   Fair employment: familial status.

           SUMMARY  :   Adds "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 (including gender), age, or sexual  
          orientation) that are prohibited bases of discrimination under  
          the employment provisions of the Fair Employment and Housing Act  
          (FEHA).  Specifically,  this bill  :   

          1)Expands the scope of prohibited bases of discrimination under  
            employment provisions of FEHA to include "familial status",  
            defined as being an individual who is or who will be caring  
            for or supporting a family member.

          2)Defines "caring for or supporting" as any of the following:  
            providing supervision or transportation; providing  
            psychological or emotional comfort and support; or addressing  
            medical, educational, nutritional, hygienic, or safety needs.

          3)Defines "family member" as any of the following: a child, a  
            parent, a spouse, a domestic partner, a parent-in-taw, a  
            sibling, a grandparent, or a grandchild.

           EXISTING LAW  :

          1)Provides, under FEHA and the Unruh Civil Rights Act,  
            protections against discrimination in employment, housing,  
            public accommodation and services provided by business  
            establishments on the basis of specified personal  
            characteristics such as sex (including gender), race, color,  
            national origin, religion, sexual orientation, and disability.  
             Over time, these bases have been amended to include other  
            characteristics to reflect the state's policies against  
            discrimination in all forms.

          2)Prohibits discrimination based on "familial status" under the  
            housing provisions of FEHA.  Under the Government Code (  







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            12955.2), "familial status" is defined as one or more  
            individuals under 18 years of age who reside with a parent,  
            with another person with care and legal custody of that  
            individual (including foster parents) or with a designee of  
            that parent or other person with legal custody. Familial  
            status also includes a pregnant woman or a person who is in  
            the process of adopting or otherwise securing legal custody of  
            any individual under 18 years of age.

           FISCAL EFFECT  :   Unknown





           COMMENTS  :

          This bill proposes to include "familial status" in the list of  
          prohibited bases for employment discrimination.  Unlike the  
          housing provisions of FEHA, "familial status" in this case is  
          defined more broadly to include family relations beyond  
          independent children.  This definition is consistent with that  
          of Section 3302 of the Unemployment Insurance Code.

          In the past, discrimination cases have been brought by employees  
          using existing federal statues 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 narrow definitions in the statutes, or to ask  
          courts to apply decisional law in many jurisdictions to their  
          case, to be able to fashion some remedy.  

          For example, in 2004, a school psychologist at an elementary  
          school, who had received positive performance reviews for two  
          years and had been assured that she would receive tenure, was  
          denied tenure after having a child. Her supervisors expressed  
          concerns that it was "not possible for [her] to be a good mother  
          and have this job" and questioned whether her commitment work  
          would drop after she received tenure because she "had little  
          ones at home." Despite the fact that there was no  
          similarly-situated male employee for her to compare herself to,  
          the Second Circuit allowed her gender discrimination case to  
          proceed, holding that stereotypes about mothers not being  
          committed to or compatible with work were "themselves, gender  
          based."  Back v. Hastings on Hudson Union Free School District  ,  







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          (2004) 365 F.3d 107.

          Perhaps the most apparent instance where "familial status" may  
          not have an adequate substitute in existing bases of  
          discrimination is evidenced in  Tisinger v. City of Bakersfield  ,  
          (2002) WL 275525.  In this case, Derek Tisinger, a single father  
          who worked as a firefighter for approximately 13 years, was at  
          the top of the list for promotion to captain but was passed over  
          because of his family responsibilities.  Tisinger filed a  
          complaint against the City of Bakersfield for discrimination on  
          the basis of "marital status" under FEHA.  He claimed that he  
          unfairly received negative evaluation for his use of sick leave  
          and trading work shifts - done properly under employer policy -  
          to take care of his children.  The claim was eventually denied  
          because while he argued that his status as a "single parent" was  
          the basis for discrimination, the Court held that Tisinger could  
          not provide sufficient evidence that discrimination occurred as  
          a result of "marital status."   Essentially, he was unable to  
          show that being a "single parent" in this case put him at a  
          disadvantage as opposed to being a "married parent."  In this  
          particular instance, Tisinger's promotional eligibility was more  
          closely linked to his relationship to his children - his  
          "parental status" or familial status" - rather than his "marital  
          status."
          
           ARGUMENTS IN SUPPORT:

           According to the author, the effect of the bill is to prevent an  
          employer from unfairly using an individual's familial status as  
          a factor in an employment decision.  When used as a factor in an  
          employment decision, stereotypes and assumptions about  
          individuals based on their familial status would be unlawful  
          under this bill - as are currently, stereotypes and assumptions  
          about workers based on their race, national origin, sex,  
          religion, marital status, and other existing protected  
          classifications.




          "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  







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          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.

          "The bill is solely an anti-discrimination measure:  It does not  
          call for any employee entitlements or any additional leave  
          related to family responsibilities.  The bill also has no effect  
          on current law that prohibits familial status discrimination in  
          housing."

           ARGUMENTS IN OPPOSITION:

           Opponents of this bill contend that this bill creates a broad  
          definition for "familial status."  The California Chamber of  
          Commerce believes this bill is unnecessary in reality and would  
          invite frivolous litigation.  "Combined federal and state laws  
          already provide extensive family care protections to 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."

          In addition, opponents argue that there are sufficient  
          protections in place, and the provision of additional  
          protections for "familial status" would invite frivolous  
          lawsuits because such a broad definition can serve as an easy  
          form of discrimination to allege.  Opponents argue that this  
          bill also "significantly opens the door" for expanding leave  
          rights and encouraging a hostile work environment through an  
          increase in business liability.
           
          RELATED LEGISLATION:
           
          AB 537 (Swanson) of 2007 would expand the definition of family  
          member, in harmony with this bill's definitions, as it applies  
          to permissible unpaid family leave under the California Family  
          Rights Act (CFRA).  AB 537 amends the definition of "child" to  
          remove references to age and dependent status.  In addition, AB  
          537 expands the scope of "family member" to include  
          grandparents, grandchildren, and parents-in-law.








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          SB 727 (Kuehl) of 2007 would expand the definition of family  
          member, in harmony with this bill's definition as it applies to  
          the family temporary disability insurance (FTDI), also known as  
          Paid Family Leave.  SB 727 would expand FTDI to include  
          grandparents, grandchildren, parents-in-law and siblings within  
          the definition of family.  Changes to the definition of "child"  
          were not included in the SB 727 because the FTDI, unlike the  
          CFRA, already includes independent children without reference to  
          age in its definition of "child."

           REGISTERED SUPPORT / OPPOSITION:
           
           Support 
           
          Commission on the Status of Women, State of California  
          (co-sponsor)
          Equal Rights Advocates (co-sponsor)
          Legal Aid Society - Employment Law Center (co-sponsor)
          9to5 Bay Area
          Amalgamated Transit Union
          American Civil Liberties 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
          Berkeley Federation of Teachers
          Calegislation
          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 (CWA)
          CWA, Local Union 9410
          Engineers and Scientists of California, IFPTE Local 20
          Family Caregiver Alliance







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          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 3
          Office & Professional Employees International Union, Local 29
          Parent Voices
          San Mateo County Central Labor Council
          Service Employees International Union (SEIU) California State  
          Council
          SEIU Local 1000
          SEIU Local 1021
          SEIU Local 1877
          Strategic Committee of Public Employees, Laborers' International  
          Union of North America
          Teamsters
          Transgender Law Center
          UNITE HERE!
          United Auto Workers (UAW) Local 4123
          UAW Local 2865
          United Food and Commercial Workers Union, Western States Council  

          Warehouse Union Local 6, ILWU
          Several individuals
           
            Opposition 
           
          California Chamber of Commerce
          California Manufacturers and Technology Association

           Analysis Prepared by  :    Mike Sheen / L. & E. / (916) 319-2091