BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 836
                                                                  Page  1


          SENATE THIRD READING
          SB 836 (Kuehl)
          As Amended April 12, 2007
          Majority vote 

           SENATE VOTE  :25-14  
           
           LABOR AND EMPLOYMENT      6-2   JUDICIARY           7-1         
           
           ----------------------------------------------------------------- 
          |Ayes:|Swanson, DeSaulnier,      |Ayes:|Jones, Evans, Feuer,      |
          |     |Fuentes, Laird, Leno,     |     |Krekorian, Laird, Levine, |
          |     |Ruskin                    |     |Lieber                    |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Strickland, Gaines        |Nays:|Tran                      |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           APPROPRIATIONS      12-5                                            
                                                                  
           
           -------------------------------- 
          |Ayes:|Leno, Caballero, Davis,   |
          |     |DeSaulnier, Huffman,      |
          |     |Karnette, Krekorian,      |
          |     |Lieu, Ma, Nava, Solorio,  |
          |     |De Leon                   |
          |     |                          |
          |-----+--------------------------|
          |Nays:|Walters, Emmerson, La     |
          |     |Malfa, Nakanishi, Sharon  |
          |     |Runner                    |
          |     |                          |
           -------------------------------- 
           
          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",  







                                                                  SB 836
                                                                  Page  2


            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-law, 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 Section  
            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  :  According to the Assembly Appropriations  
          Committee, the Department of Fair Employment and Housing, which is  
          responsible for enforcing provisions of FEHA, estimates that it  
          would need $740,000 for eight staff to handle the increased volume  
          of complaints resulting from this bill.  

           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  







                                                                  SB 836
                                                                  Page  3


          Unemployment Insurance Code Section 3302.

          In the past, 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 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  , (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  







                                                                  SB 836
                                                                  Page  4


          status" - rather than his "marital status."
           

          Analysis Prepared by  :    Mike Sheen / L. & E. / (916) 319-2091      
                             
                                                                  FN: 0002652