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



           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

          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  

          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  

          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. (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  

          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  

           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  
          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  
          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  

               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.


          California Commission on Status of Women (sponsor)
          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!

          California Chamber of Commerce
          California Grocers Association

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