BILL ANALYSIS AB 1001 Page 1 Date of Hearing: April 22, 2009 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT William W. Monning, Chair AB 1001 (Skinner) - As Amended: April 14, 2009 SUBJECT : Employment: familial status protection. 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 care for a family member. 2)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 2)Prohibits discrimination based on "familial status" under the housing provisions of FEHA. Specifically, under 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. AB 1001 Page 2 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. In the past, discrimination cases have been brought by employees using existing federal or state 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 , (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 AB 1001 Page 3 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 large majority of workers are responsible for some family member, whether it be a child, partner, or elderly relative. Recent studies have shown that employees who are responsible for children or ill family members experience unfair employment decisions based on employers' assumptions that caregivers will be less committed to their jobs or less reliable at work. From 1996 to 2006 'family responsibilities discrimination' (FRD) lawsuits (also known as 'familial status discrimination' (FSD) and 'caregiver discrimination') have increased 400 percent. Familial status discrimination in the workplace can take different forms such as being passed up for promotion, denied leave, or terminated altogether. "Currently, discrimination based on familial status is only prohibited under the housing provisions of the Fair Employment and Housing Act (FEHA). Under FEHA employers are not allowed to discriminate an employee based on their marital status, race, national origin, sex, religion, and other existing protected classifications, however there is no explicit protection in California employment law against discrimination on the basis of familial status. "Existing law does not adequately safeguard large numbers of California employees who experience workplace discrimination based on the need to care for children and other family members. Discrimination cases related to familial status must apply alternative legal theories or federal statutes to their cases. [This bill] would address this gap in the law by including 'familial status' on the list of characteristics that, if used as the basis for discrimination, is prohibited under the state's Fair Employment and Housing Act?Clarifying familial status within FEHA would provide California workers with confidence in AB 1001 Page 4 their employment rights especially during these vulnerable economic times." In addition, the author points out that in May 2007, the federal Equal Employment Opportunity Commission (EEOC) issued a guide to address caregiver discrimination titled "Enforcement Guidance on Treatment of Workers with Caregiving Responsibilities." The author states that this guide recognizes that there are no federal laws that expressly prohibit discrimination against caregivers. However, it presents 20 cases of caregiver discrimination that can broadly fall under federal statues. Unfortunately, these are only guidelines and lack the force of law. The author states that, for these reasons various employment lawyers and advocates suggest that this guidance provides a limited protection for employees and employers. In addition, the author notes that President Obama has already recognized the need to strengthen working family protections laws by stating, "Workers with family obligations often are discriminated against in the workplace. We will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination." The author argues that this all suggests that employers' views about family and work need to evolve or else they may face significant liability for future familial status discrimination claims. ARGUMENTS IN OPPOSITION: The California Grocers Association (CGA) argues that in the current economic climate, employers struggle to distinguish between many similarly qualified candidates for few available positions. They contend that this bill could well serve to provide applicants with additional opportunities to file suit if they are denied a desired position or promotion. CGA states that it is counterproductive to make it more difficult for employers to distinguish between applicants free from fear of liability. PRIOR LEGISLATION: This bill is similar, but not identical, to SB 836 (Kuehl) of 2007. Specifically, the final version of SB 836 defined "familial status" as being an individual who is or who will be "caring for or supporting" a family member. SB 836 further defined "caring for or supporting" as any of the following: AB 1001 Page 5 providing supervision or transportation; providing psychological or emotional comfort and support; or addressing medical, educational, nutritional, hygienic, or safety needs. That measure was vetoed by Governor Schwarzenneger, who stated the following: "California has the strongest workplace laws against discrimination and harassment in the country. These laws provide workers necessary protections from unfair retaliation, discipline, and termination for matters unrelated to job performance. Although I support these laws, expanding workplace protections to include something as ambiguous as "familial status" is not appropriate. This bill will not only result in endless litigation to try and define what discrimination on the basis of "familial status" means, it will also unnecessarily restrict employers' ability to make personnel decisions." SIMILAR EFFORTS IN OTHER STATES/LOCALITIES : According to the author, New Jersey, the District of Columbia, and Alaska currently prohibit employment discrimination against employees with responsibility for caring for children or other family members. See N.J. Stat. Section 10:5-4 ("familial status"); Alaska Stat. Section 18.80.200 ("parenthood."); D.C. Human Rights Act, D.C. Code Section 2-1402.11 ("family responsibilities"). In addition, the author notes that proposals to incorporate family responsibility, familial status, or parental status as part of their employment anti-discrimination laws have been adopted in the following localities: Aspen, Colorado; Atlanta, Georgia; Cook County, Illinois; Crested Butte, Colorado; Harrisburg, Pennsylvania; Howard County, Maryland; Miami-Dade County, Florida; Milwaukee, Wisconsin; State College, Pennsylvania; Tacoma, Washington; and Tampa, Florida Finally, the author states that similar legislation is pending in Florida, Maine, Michigan, and New York. AB 1001 Page 6 REGISTERED SUPPORT / OPPOSITION : Support American Civil Liberties Union American Federation of State, County and Municipal Employees California Commission on the Status of Women California Conference Board of the Amalgamated Transit Union California Labor Federation, AFL-CIO California Nurses Association/National Nurses Organizing Committee California Teamsters Public Affairs Council California Women's Law Center Engineers and Scientists of California Equal Rights Advocates International Longshore & Warehouse Union Professional & Technical Engineers, Local 21 Strategic Committee of Public Employees, LIUNA UNITE HERE! United Food and Commercial Workers Union, Western States Council Opposition California Grocers Association Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091