BILL ANALYSIS
SB 836
Page 1
Date of Hearing: July 10, 2007
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 836 (Kuehl) - As Amended: April 12, 2007
SENATE VOTE : 25-14
SUBJECT : FAIR EMPLOYMENT: FAMILIAL STATUS
KEY ISSUE : SHOULD CALIFORNIA EMPLOYERS, EMPLOYMENT AGENCIES AND
LABOR UNIONS BE PROHIBITED FROM DISCRIMINATING ON THE BASIS OF
AN EMPLOYEE'S OR AN APPLICANT'S FAMILIAL STATUS?
SYNOPSIS
This bill would add "familial status" to the list of
characteristics (e.g., race, sex, religion, etc.) that are
prohibited bases of discrimination under the employment
provisions of the Fair Employment and Housing Act (FEHA).
Supporters argue that the bill is needed to prevent employers
from unfairly relying on stereotypes and assumptions about an
individual's family responsibilities in the same way that
existing law prohibits such irrational decisions on the basis of
race, sex and other factors. Because existing law does not
cover all cases of different treatment based on real or
perceived family responsibilities, supporters state, many
workers are falling through the cracks of existing civil rights
protections, while at the same time employers find themselves
confused about the scope of their potential liability. In
opposition, the Chamber of Commerce argues, in sum, that the
bill is vague and overly broad, unnecessary, and would invite
frivolous litigation.
SUMMARY : Prohibits discrimination in employment and in training
programs by employers, employment agencies and labor
organizations on the basis of familial status. Specifically,
this bill :
1)Adds "familial status" to the list of characteristics on which
basis a person may not be discriminated against in employment.
2)Defines familial status as being an individual who is or who
will be caring for or supporting a family member.
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3)Defines "caring for or supporting" as any of the following:
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.
4)Defines "family member" as any of the following: a child, a
parent, a spouse or domestic partner, a parent-in-law, a
sibling, a grandparent, or a grandchild.
5)Provides that nothing in this part relating to discrimination
on account of familial status shall do either of the
following: (A) affect the right of an employer to reasonably
regulate, for reasons of supervision, safety, security, or
morale, the working of spouses in the same department,
division, or facility, consistent with the rules and
regulations adopted by the commission; (B) prohibit bona fide
health plans from providing additional or greater benefits to
employees with dependents than to those employees without or
with fewer dependents.
EXISTING LAW , under 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 section 12920 et seq. All references are to the Government
Code unless otherwise indicated.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : In support of 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
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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 Center for Worklife Law, 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, the sponsor reports that some
states and local entities, such as Alaska and the District of
Columbia, do expressly prohibit discrimination against parents
or employees with family 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.
Background on Family Responsibility Discrimination. 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. These statutes have evolved to
reflect various protected classifications as public policy has
recognized the pernicious effects of irrational hostility based
on stereotypes and assumptions about people having particular
personal characteristics.
Supporters of the bill state that 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 caregiver. However, supporters state, employees
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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, 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. According to supporters, 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. section 2000e (k) (2005).)
The Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C.
section 2601 et seq.) and the Americans with Disabilities Act of
1990 (ADA) (42 U.S.C. 12101 et seq.) 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, supporters
report, 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, supporters state, there has been a
significant increase in these cases. 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 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,
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supporters contend, 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.
Defining Familial Status For Employment Purposes. Currently,
"familial status" is recognized as a protected class in the
housing provisions of FEHA. These provisions define familial
status to mean 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. "Family member" would
be defined consistently with existing law. For example, under
the paid family leave provisions of the Unemployment Insurance
Code, a child is defined in section 3302 of the Unemployment
Insurance Code 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." Similarly, a parent is
defined in Section 3302 of the Unemployment Insurance Code as "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." Likewise, the terms
"spouse," "domestic partner," "sibling" and the like are defined
by incorporation of existing statutory definitions.
Definition of "Caring For Or Supporting." Under SB 836, "caring
for or supporting" a family member means: (a) providing
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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.
Supporters state that 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 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).)
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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. 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).)
ARGUMENTS IN SUPPORT : SB 836 has garnered broad support from
many groups of workers, civil rights advocates, mothers,
emancipated youth groups, caregivers, 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 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
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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."
ARGUMENTS IN OPPOSITION : The California Chamber of Commerce
represents the opposition, arguing that the bill is vague and
overly broad, unnecessary, and invites frivolous litigation.
Specifically, CalChamber argues:
First, this bill is unnecessary. 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. 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 cases 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 many employees have a spouse,
child, parent, or sibling that might need supervision or
transportation, "familial 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
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law, employers must provide extensive modified schedules or
full-time leave for purposes 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Commission on Status of Women (co-sponsor)
Equal Rights Advocates (co-sponsor)
Legal Aid Society - Employment Law Center (co-sponsor)
9 to 5 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
Berkeley Federation of Teachers
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
Communications Workers of America, 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
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 (SEIU) California State
Council
Service Employees International Union (SEIU), Locals 100, 1021
and 1877
Strategic Committee of Public Employees, Laborers' International
Union of North America Transgender Law Center
UNITE HERE!
United Auto Workers Locals 2865 and 4123
United Food and Commercial Workers Union, Western States Council
Warehouse Union Local 6, ILWU
One individual
Opposition
California Chamber of Commerce
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334