BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 1001
                                                                  Page  1

          Date of Hearing:   April 22, 2009

                              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  
          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  

          "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.


           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  
          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  


          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  
          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


          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  
          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

          California Grocers Association

          Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091