BILL ANALYSIS AB 1001 Page 1 Date of Hearing: April 27, 2009 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 1001 (Skinner and Ma) - As Amended: April 14, 2009 SUBJECT : FAIR EMPLOYMENT: FAMILIAL STATUS KEY ISSUE : SHOULD CALIFORNIA EMPLOYERS, EMPLOYMENT AGENCIES AND LABOR UNIONS BE PROHIBITED FROM DISCRIMINATING ON THE BASIS OF FAMILIAL STATUS? FISCAL EFFECT : As currently in print this bill is keyed fiscal. 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 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, including perceived familial status. 2)Defines familial status to mean having or providing care for any of the following: a child, a parent, a spouse or domestic AB 1001 Page 2 partner, a parent-in-law, a sibling, a grandparent, or a grandchild. 3)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.) COMMENTS : In support of the bill the author states: 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. AB 1001 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. The bill is necessary to clarify existing legal theories and such as those recently reviewed in the EEOC Enforcement Guidance (May 2007). Clarifying familial status within FEHA would provide California workers with confidence in their employment rights especially during these vulnerable economic times. At the federal level the Equal Employment Opportunity Commission (EEOC) recently issued a guidance to address caregiver discrimination titled "Enforcement Guidance on Treatment of Workers with Caregiving Responsibilities" (May 2007). This guidance recognizes that there are no federal AB 1001 Page 3 laws that expressly prohibit discrimination against caregivers. However, it presents 20 examples of caregiver discrimination that can broadly fall under federal statues, and where applicable, cites to cases in which courts have so held. Unfortunately, the guidance provides only guidelines and lacks the force of law. President Obama has already recognized the need to strengthen working family protections laws. Part of his plan prioritizes protections against caregiver discrimination 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." Background on Family Responsibilities Discrimination . Supporters of this bill contend that a large majority of workers are responsible for some family member, whether it be a child, partner, or elderly relative, and that recent studies have shown that employees who are responsible for the care of children or other 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, supporters state, "family responsibilities discrimination" (FRD) lawsuits (also known as "familial status discrimination" (FSD) and "caregiver discrimination") have increased 400 percent, including discrimination in promotion, denial of leave time and termination of employment. The rise in caregiver or family responsibilities discrimination is expected to quicken as an increasing number of baby boomers are called on to raise aging parents, often while also caring for children - the so-called "squeezed" or "sandwiched" generation. In the absence of a societal response to these care-giving needs, the burden is placed on individuals, who in turn seek consideration from employers. According to a study performed by the University of California-Hastings Center for Worklife Law, 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 AB 1001 Page 4 of these cases can be very complicated, difficult, and expensive. And, according to articles written for employers by human resource journals, 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. Examples of the fact patterns reflected in reported cases include: 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 because discrimination based on familial status is 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).) The court upheld a district court's finding of discrimination in a case involving a pregnant woman who was not hired as a AB 1001 Page 5 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).) Existing State and Federal Law Does Not Expressly Prohibit Familial Status Discrimination In The Workplace. Various state laws 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. FEHA does not directly prohibit discrimination based on an employee's status as a family caregiver, although FEHA does prohibit discrimination on the basis of familial status in housing. 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 protected characteristics. Recent Federal Guidance Indicates That Employment Discrimination Against Caregivers Is Sometimes But Incompletely Covered By Existing Law. Federal law likewise does not expressly prohibit different treatment of an employee because s/he is a caregiver. Nevertheless, the author points out that in May 2007, the federal Equal Employment Opportunity Commission (EEOC) issued policy guidance to address caregiver discrimination titled "Enforcement Guidance on Treatment of Workers with Caregiving Responsibilities." The author states that this guidance recognizes that while there are no federal laws that expressly prohibit discrimination against caregivers, it presents 20 examples of various forms of caregiver discrimination that may AB 1001 Page 6 be unlawful under federal statutes. As noted above, supporters note that employees with family caregiving responsibilities who have been subjected to adverse employment actions have litigated claims against their employers using various federal statutes. For example, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, among other characteristics, 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 raise a child. (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.) The Family and Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act of 1990 (ADA) in particular 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. Currently, if an employee experiences discrimination at work based on his/her familial status - for example, her 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, some workers may be 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. Reasonable Distinctions Permitted . As with existing law regarding marital status discrimination, this bill expressly AB 1001 Page 7 provides that discrimination on account of familial status shall not 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. 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 a minor child who resides with a parent or another person with custody of the minor, as well as a pregnant individual who is under 18, or who is in the process of securing legal custody of a minor. This definition from housing law, focused on cohabitation, has the advantage of offering a bright-line test, but one that would appear to be inappropriate to address the problems of caregivers, who may not reside with the person for whom they are providing care. This bill therefore focuses on the caregiving responsibility as the trigger for protection. Unlike a prior related bill, SB 836 (Kuehl) of 2007, this bill does not purport to define "providing care," nor does it include the arguably broader term of the prior measure, "caring for or supporting" a family member, which was defined in SB 836 to mean: (1) providing supervision or transportation; or (2) providing psychological or emotional comfort and support; or (3) attending to an illness, injury, or mental or physical disability; or (4) addressing medical, educational, nutritional, hygienic, or safety needs. This bill is somewhat broader than SB 836 however by including an alternative definition that is satisfied by the simple existence of the specified familial relationships - e.g., having a child, spouse/domestic partner, grandparent, sibling, etc. The authors may therefore wish to consider whether focusing on their evident objective of reasonably protecting the caregiving relationship may better accomplish their laudable purpose while reassuring employers that the bill can be implemented without undue breadth or uncertainty, as it apparently has been in other jurisdictions. Expanded Employment Leave Provision Deleted. As introduced, the bill included proposed amendments to the law regarding family AB 1001 Page 8 and medical leave comparable to SB 836. That provision has since been amended out so that the bill simply maintains current law. Similar Laws and Legislation In Other Jurisdictions . 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. Vetoed Prior Bill Was Similar But Broader Than This Measure. As noted above, this bill is similar to but narrower than SB 836 (Kuehl) of 2007 which also sought to prohibit discrimination on the basis of familial status. That measure was vetoed with the following message: 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. ARGUMENTS IN OPPOSITION : The California Chamber of Commerce represents the opposition, arguing that the bill "unnecessarily AB 1001 Page 9 creates a vague and expansive new basis for liability under the Fair Employment and Housing Act. 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. The study also concludes that "?plaintiffs are more likely to win family responsibility discrimination lawsuits than other types of employment discrimination cases. The average award is just over $100,000; the largest award to date is $25 million. The lawsuits analyzed in this report make a strong case that companies' effective handling of workers' caregiving responsibilities is an issue of risk management; companies that mismanage their work/life programs tend to fare poorly in court." 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 all employees have a spouse, child, parent, grandparent, grandchild or sibling, "familial status" can serve as a new, easy form of discrimination to allege. In the Governor's veto message of SB 836 (Keuhl), a similar bill in 2007, he states "?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. AB 1001 Page 10 Finally, this bill may result in burdensome expanded leave rights. AB 1001 appears to be the first step in a broader agenda to expand employee family care leave and opens the door to new mandates on employers to provide modified. REGISTERED SUPPORT / OPPOSITION : Support California Commission on Status of Women (sponsor) ACLU AFSCME Amalgamated Transit Union California Labor Federation California Nurses Association California State Employees Association California Teamsters Public Affairs Council California Women's Law Center Engineers and Scientists of California Equal Rights Advocates International Longshore & Warehouse Union Peace Officers Research Association of California Professional & Technical Engineers, Local 21 Strategic Committee of Public Employees United Food and Commercial Workers Union UNITE HERE! Opposition California Chamber of Commerce California Grocers Association Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334