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


          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.


                                                                  SB 836
                                                                  Page  2

          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  

          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  


                                                                  SB 836
                                                                  Page  3

               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  


                                                                  SB 836
                                                                  Page  4

          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,  


                                                                  SB 836
                                                                  Page  5

          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  

           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  


                                                                  SB 836
                                                                  Page  6

          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  

           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).)


                                                                  SB 836
                                                                  Page  7

           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  

               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  


                                                                 SB 836
                                                                  Page  8

               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  


                                                                  SB 836
                                                                  Page  9

               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.


          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  
          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  
          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


                                                                  SB 836
                                                                  Page  10

          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  
          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

          California Chamber of Commerce

           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334