BILL ANALYSIS Ó
SB 400
Page 1
Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 400 (Jackson) - As Amended: April 16, 2013
As Proposed to be Amended
SENATE VOTE : 21-12
SUBJECT : EMPLOYMENT: DISCRIMINATION AGAINST VICTIMS OF DOMESTIC
VIOLENCE
KEY ISSUE : SHOULD EMPLOYERS REASONABLY ACCOMMODATE THE
WORKPLACE SAFETY OF VICTIMS OF DOMESTIC VIOLENCE AND BE
PROHIBITED FROM DISCRIMINATING AGAINST THEM?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is substantially the same as a measure approved by the
Committee last year, which was subsequently held in the
Appropriations Committee. The bill prohibits employers from
discriminating or retaliating against employees who suffer
domestic violence, sexual assault or stalking, and would allow
employees to request reasonable accommodation to ensure their
safety in the workplace. The bill's supporters, including law
enforcement, domestic violence, labor and community groups,
report that domestic violence, sexual assault and stalking
filter into the workplace and jeopardize victims' employment and
safety at work. The problem is appallingly widespread, with one
in five women reportedly experiencing some form of domestic
violence in her lifetime, often associated with alarming rates
of job loss and other problems at work due to abuse. This bill
would offer a modicum of protection. Because acts of violence
can often follow a victim to work, basic accommodations, such as
providing a new telephone extension or work email address, can
help protect abuse victims and the employers. By protecting
victims from discrimination and retaliation, supporters argue,
victims who frequently fear adverse employment actions will be
less hesitant to report and work with law enforcement to
investigate and prosecute domestic abuse crimes.
Business advocates oppose the bill, arguing that it will expose
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employers to costly litigation, as well as interfere with the
employer's ability to efficiently operate its business.
According to opponents," There is simply no evidence to suggest
that the additional protections proposed by SB 400 are necessary
in light of the existing protections, especially in comparison
to the significant burden and cost of litigation SB 400 will
create for employers."
SUMMARY : Prohibits job discrimination and requires reasonable
accommodation of victims of domestic violence, sexual assault
and stalking. Specifically, this bill :
1)Protects victims of domestic violence, sexual assault, or
stalking (all of which are defined by reference to existing
law) from employment discrimination and retaliation if the
victim provides notice to the employer of the status or the
employer has actual knowledge of the status.
2)Requires reasonable accommodation for the workplace safety of
these victims if requested, such as:
a) A transfer, reassignment or modified schedule;
b) Changed work telephone, changed work station or
installed lock;
c) Assistance in documenting domestic violence, sexual
assault or stalking that occurs in the workplace; and,
d) An implemented safety procedure or another adjustment to
a job structure, workplace facility, or work requirement in
response to domestic violence, sexual assault, or stalking.
3)Specifies that an employer is not required to undertake an
action that constitutes an undue hardship on the employer's
business operations.
4)Requires an employee, or an individual acting on the
employee's behalf, to provide a signed written statement to
his or her employer certifying that the accommodation is for a
purpose related to the status as a victim of domestic
violence, sexual assault or stalking.
5)Allows an employer to request that an employee provide either
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a police or court record or other documentation related to the
domestic violence, sexual assault or stalking.
6)Requires employers to maintain as confidential and prohibits
disclosure by the employer, any verbal or written statement,
police or court record, or documentation provided to the
employer identifying an employee as a victim of domestic
violence, sexual assault or stalking. However, this bill
permits an employer to disclose documentation of an employee's
status as a victim of domestic violence, sexual assault or
stalking if federal or state law requires the employer to do
so or if disclosure is necessary to protect the employee's
safety in the workplace.
EXISTING LAW :
1)Prohibits employers from discriminating or retaliating against
victims of domestic violence or sexual assault who take time
off from work to seek judicial relief to help ensure the
health or welfare of the victim or his or her child. (Labor
Code section 230.)
2)Prohibits employers with 25 or more employees from discharging
or discriminating against a victim who takes time off to seek
medical attention, obtain services from a domestic violence
shelter or rape crisis center, obtain psychological counseling
or participate in safety planning. (Labor Code section
230.1.)
COMMENTS : The author states that domestic violence, sexual
assault and stalking are forms of violence that trickle into the
workplace and jeopardize victims' employment and safety at work.
Reports indicate that one in five women will experience some
form of domestic violence in her lifetime, and studies have
shown alarming rates of job loss and other problems at work due
to abuse. According to the author, nearly 50 percent of sexual
assault survivors have lost their jobs or were forced to quit
following the assault. Supporters note that economic
independence is a critical factor in permanently escaping abuse.
Because acts of violence can often follow a victim to work,
basic accommodations, such as providing a new telephone
extension or work email address, can help protect abuse victims
and the employers. In addition, supporters argue, victims who
fear adverse employment actions are more hesitant to report and
work with law enforcement in the investigation and prosecution
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of domestic abuse crimes.
Extending Discrimination And Retaliation Protections To Domestic
Violence, Sexual Assault, And Stalking Victims . Existing law
prohibits discrimination and retaliation against employees who
are victims of domestic violence or sexual assault for taking
time off from work to obtain judicial relief or to seek other
relief. This bill would extend these protections to stalking
victims. Independently of the need to take time off, this bill
would also provide discrimination and retaliation protections
for employees whose status as a victim is known by the employer.
Background on Workplace Problems Suffered By Victims of Domestic
Violence. A 2003 report titled "Women's Health: Findings from
the California Women's Health Survey, 1997-2003," (CWHS) found
that one quarter to one-third of all adult women in the United
States (U.S.) have been physically abused by an intimate partner
during their lifetime. The CWHS study also notes that
approximately 40 percent of California women experience physical
intimate partner violence in their lifetimes.
The National Partnership for Women & Families (NPWF) states that
incidents of domestic violence, sexual assault, and stalking
affect a large number of workers. According to NPWF, the loss
of employment can be devastating for domestic violence survivors
because they often need financial security to ensure their
safety and the safety of their children. They note that data
has shown that victims of domestic violence often stay with
their abuser because they are financially dependent on that
person. A 2005 study published in the Journal of Occupational
Health Psychology titled "Domestic Violence and Employment: A
Qualitative Study" (DVE Study) illuminates the consequences that
domestic violence can have on women's employment. The DVE Study
found that domestic violence has an effect on women's job
performance and that women reported missing work, were
terminated from a job or resigned as a direct result of
victimization.
According to the DVE Study, an employer's response to their
employee's disclosure of domestic violence victimization plays
an important role in whether or not an employee chooses to
inform a supervisor or co-worker of her abuse. The DVE Study
notes that employed domestic violence victims often fear job
loss, a sense of shame, or a belief that they can handle work
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and their abusive home situation without help from someone at
work. Unfortunately, data from the DVE Study shows that
significant levels of stress and psychological discomfort that
result from stalking, or an abuser's job interference behaviors,
including showing up at the worksite and incessant calling, can
affect an employee's job performance.
The DVE Study suggests that employer-based supports primarily
lead to short-term job retention, but an employee's concern
about safety often thwarts the long term benefits associated
with employer or co-worker support.
The National Coalition Against Domestic Violence (NCADV) notes
that 37 percent of women have indicated that domestic violence
has had a negative impact on their job performance. NCADV
states that women who have been raped or sexually assaulted
report diminished work function and approximately one-fourth of
the 1 million women who are stalked each year report missing an
average of 11 days as a result of stalking. A 2003 report from
the U.S. Department of Health and Human Services titled "Cost of
Intimate Partner Violence Against Women in the United States"
(HHS Report) found that intimate partner violence (IPV) victims
lose approximately 8 million days of paid work annual; the
equivalent of 32,000 full time jobs. The HHS Report states that
the costs of intimate partner rape, physical assault, and
stalking exceeds $5.8 billion each year, including $0.9 billion
in lifetime earnings lost by victims of IPV homicide.
A 2009 Report titled "Domestic Violence and Work: Legal and
Business Perspectives," (DVW Report) asserts that domestic
violence causes problems for employers as well as employees,
including, economic loss due to lost productivity,
administrative difficulties that result from employees who take
unplanned time off, higher insurance premiums and the
possibilities of lawsuits. The DVW Report asserts that research
has shown that one out of every five employed adults has
personally experienced domestic violence and 96 percent of
victims have experienced trouble at work related to domestic
violence. In addition, the DVW Report, similar to the
aforementioned DVE Study, notes that employees experience
decreased productivity during and after actual or threatened
violence and may require time off from work, or flexible work
arrangements to address safety concerns, medical needs and legal
issues arising out of or related to domestic violence.
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According to the DVW Report, safety planning by employees and
employers is necessary to address domestic violence at work
because the effects of domestic violence spill over into the
workplace even if the specific acts of violence are not
perpetrated at work. The DVW Report also states that safety
planning for employees includes communicating with colleagues
and supervisors about one's situation, changing the location or
schedule of work as well and work contact information, such as
email addresses and telephone numbers or seeking a protection
order that includes the worksite. Safety planning for employers
can also include the implementation of a written policy
establishing protocols for responding to and supporting
employees who are victims of domestic violence.
Unfortunately, the DVW Report states that there is often little
or no structure in place at work for employees who want to
disclose their status as a victim of domestic violence to a
supervisor or coworker's attention. According to the United
States Bureau of Labor Statistics (BLS), over 70 percent of U.S.
workplaces do not have a formal program or policy that addresses
workplace violence. BLS notes that, of the 30 percent of
establishments that have formal programs or policies in place,
only 44 percent address domestic violence.
Recent Controversy Highlights Issues Raised By The Bill.
Supporters argue that the need for the bill is illustrated by a
recent controversy that has attracted media attention.
According to a Los Angeles Times report, "A veteran teacher at a
Catholic school has lost her job because school officials are
worried her ex-husband, now serving a jail sentence for domestic
abuse and stalking, will pose a danger to students and teachers
when he is released. ? "Please understand that this was a very
difficult decision to make, and we are deeply, deeply sorry
about this situation," the diocese's director of schools wrote.
"We will continue to pray for you and your family."
Charlesworth said Friday that she and her children are being
punished for her ex-husband's volatile behavior. She said she
is unsure how she will support the family. "I was shocked that
they were going to leave me without a job," she said. "It was
devastating." ? After the case was reported this week on local
TV, Rodrigo Valdiva, chancellor of the Roman Catholic Diocese of
San Diego, issued a statement saying the diocese "has acted
responsibly in addressing the Holy Trinity School personnel
matter with concern for the safety and well-being of both Carie
Charlesworth and the children enrolled at the school." ? Carie
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Charlesworth has a bachelor's degree, a master's degree and a
teaching credential, but teaching jobs are scarce in the current
economy. After 14 years in diocese schools, including the last
four at Holy Trinity, she was earning $37,000 a year. "I'm just
trying to figure what to do now," she said. She considered
moving away from San Diego County or possibly going back to
college to start a new career - maybe nursing - but said that
she has realized that both ideas are financially impossible. The
couple has sons 9 and 11 years old and twin 7-year-old girls.
Under the divorce decree, Carie Charlesworth, who lives in
Spring Valley, has custody of the children, but Martin
Charlesworth has visitation privileges. "We'll probably be in a
shelter after he's released," she said. "But we can't live life
in fear. The kids need a normal life. Hopefully, he'll abide
by his probation report." (Teacher At Catholic School Loses Job
Over Ex-Husband's Actions, Los Angeles Times, June 14,
2013)(latimes.com/news/local/la-me-0615-catholic-teacher
20130615,0,6752429.story).)
Existing Law Allows Time Off Work And Prohibits Retaliation For
Exercising That Right . Under existing law, an employer may not
discharge, discriminate or retaliate against an employee who is
a victim of domestic violence or a victim of sexual assault for
taking time off from work to obtain or attempt to obtain any
relief, including, but not limited to, a temporary restraining
order, restraining order, or other injunctive relief, to help
ensure the health, safety, or welfare of the victim or his or
her child.
In addition, existing law prohibits an employer with 25 or more
employees from discharging or in any manner discriminating or
retaliating against an employee who is a victim of domestic
violence or a victim of sexual assault for taking time off from
work to attend to any of the following: (1) To seek medical
attention for injuries caused by domestic violence or sexual
assault; (2) To obtain services from a domestic violence
shelter, program, or rape crisis center as a result of domestic
violence or sexual assault; (3) To obtain psychological
counseling related to an experience of domestic violence or
sexual assault; (4) To participate in safety planning and take
other actions to increase safety from future domestic violence
or sexual assault, including temporary or permanent relocation.
Violation of these statutes is remedied by reinstatement and
reimbursement for lost wages and work benefits caused by the
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acts of the employer via either a complaint to the Division of
Labor Standards Enforcement of the Department of Industrial
Relations or by court action.
This Bill Requires The Same Types of Proof of Domestic Violence
As Currently Apply To Existing Job Protections For These
Victims. Victims of domestic violence and sexual assault are
currently protected against discrimination and retaliation for
taking time off work to participate in judicial proceedings or
to obtain other forms of relief. To ensure that these rights
are exercised only by those who need them, existing law provides
that employers may rely on certain documents verifying the
victim's status, such as police report, court order, or
documentation by specified professionals. This bill likewise
provides that an employee who requests reasonable accommodation
may be required to provide his or her employer with identical
evidence of need. This approach is also consistent with the
documentation required by SB 612 (Leno), a measure the Committee
recently approved to provide relief from residential leases for
DV victims.
Similar Laws In Other States. Connecticut state law (Public Act
No. 10-144) prohibits an employer from firing, penalizing or
threatening an employee for attending or participating in a
court proceeding related to a civil case in which the employee
is a victim of family violence. The state defines as an
incident resulting in physical harm, bodily injury or assault,
or an act of threatened violence that constitutes fear of
imminent physical harm, bodily injury or assault between family
or household members. Connecticut state law also requires
employers to give employee victims of family violence up to
twelve days of unpaid leave during a calendar year, in addition
to other leave provided under state and federal law, to seek
medical care or psychological counseling, obtain services from a
domestic violence assistance organization, victim relocation or
participate in criminal proceedings related to or resulting from
family violence.
Hawaii's Revised Statutes (Section 378-2), include domestic or
sexual violence victim status in its anti-discrimination labor
laws and requires employers to make reasonable accommodations
for victims of domestic or sexual violence, including, but not
limited to changing contact information such as telephone number
or email addresses, screening the employee's telephone calls,
changing the work location for the employee, installing locks
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and other security devices and allowing the employee to work
flexible hours. Hawaii state law also allows employers to
request that the employee verify that he or she is a victim of
domestic or sexual abuse by providing a written statement from
the employee, or other sources including, police or court
records.
Illinois' Compiled Statutes (Section 820, ILCS 180/15) prohibits
employer discrimination based on an employee's status as a
victim of domestic or sexual violence. Illinois state law also
entitles employed victims of domestic or sexual violence and
employees with a family or household member who is a victim to
take unpaid leave to seek medical help, legal assistance,
counseling, safety planning, and other assistance without
penalty from their employers. The state's law also protects
employees from discharge and harassment when, in response to
actual or threatened domestic or sexual violence, they request
an adjustment to their job structure, workplace facility, work
requirement, including a transfer, reassignment, or modified
schedule, leave, a changed telephone number or seating
assignment, installation of a lock or implementation of a safety
procedure.
ARGUMENTS IN OPPOSITION : A coalition of business interests
filed opposition to the bill, as they resolutely have in
response to prior measures, arguing:
[T]he expanded protections under SB 400 will increase the
already significant burden on employers to conduct business
in California and will expose such employers to costly
litigation.
SB 400 seeks to prevent employment discrimination or
retaliation against employees who are victims of domestic
abuse, sexual assault, or stalking. Unlike other existing
protected classifications under the Fair Employment and
Housing Act ("FEHA") that are more objective, determining
who is a victim of domestic abuse, sexual assault, or
stalking is a daunting task for employers. For example, at
what point does a marital dispute turn into domestic abuse?
How many phone calls per day from a significant other
qualifies as "stalking"? SB 400 will force an employer
into a judicial role to determine when a crime of domestic
abuse, stalking, or sexual assault has occurred for
purposes of triggering the proposed protection provided by
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SB 400. Employers are not in a position to make such
decisions and should not be forced into making one by this
legislation.
Moreover, SB 400 will require employers to inquire into an
employee's personal life, outside of work, thereby placing
them in a legal predicament. California Labor Code section
96(k) precludes employers from taking any action based upon
off-duty conduct. Article 1, Section 1 of the California
Constitution also recognizes that employees have a legal
right to privacy in their personal lives and relationships.
SB 400 would blur the distinction between personal and
workplace issues by forcing employers to determine if
activities in an employee's personal life have triggered
the proposed protections under SB 400.
Specifically, SB 400 only requires an employee to
"disclose" his or her status as a victim for purposes of
requesting a reasonable accommodation. There is no similar
disclosure requirement on an employee for the broader
anti-discrimination/retaliation protections proposed under
this bill. Rather, an employer is prohibited from
discriminating or retaliating against an employee of
domestic abuse, stalking, or sexual assault if the employer
simply "knows" of the employee's protected status. Courts
have interpreted a "knowledge" standard to mean not only
actual knowledge, but also constructive knowledge.
Accordingly, employers will be potentially forced to choose
between: (1) a claim of discrimination under SB 400 by
failing to have known or inferred that the employee is a
victim of domestic abuse, sexual assault, or stalking; or,
(2) a claim for invasion of privacy and violation of the
labor code, because the employer inquired into the
employee's off-duty, personal life.
SB 400 also exposes employers of any size to costly
litigation for any alleged violation of the provisions of
the bill, including an employee only right to attorney's
fees. Currently, existing law requires similar employees to
resolve any issue with the Division of Labor Standards
Enforcement ("DLSE") through an administrative hearing.
See Labor Code section 230.1. Creating a private right of
action with employee only attorney's fees will incentivize
frivolous litigation. Moreover, there is no evidence that
such complaints cannot be efficiently handled through the
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DLSE.
Finally, there are already significant protections in place
for victims of domestic abuse, sexual assault, and
stalking. Labor Code sections 230-230.2 preclude an
employer from discriminating or retaliating against an
employee who is a victim of domestic abuse or sexual
assault and provides the employee with an indefinite
protected leave of absence to seek medical attention,
services, counseling, or attend criminal proceedings.
Labor Code sections 132(a) and 3553 extend workers'
compensation benefits to employees who are victims of crime
at the workplace, and prevent an employer from
discriminating on that basis. Code of Civil Procedure
section 527.8 allows an employer to obtain a restraining
order on behalf of an employee who has suffered "unlawful
violence" or has been threatened with "unlawful violence."
There is simply no evidence to suggest that the additional
protections proposed by SB 400 are necessary in light of
the existing protections, especially in comparison to the
significant burden and cost of litigation SB 400 will
create for employers.
The Civil Justice Association of California adds:
Senate Bill 400 would expand existing protections afforded
employees from employment discrimination or retaliation who
are victims of domestic abuse and sexual assault. While the
intent of SB 400 is laudable, we are concerned that the
provisions in the bill may put employers in the impossible
position of violating an employee's privacy in order to
comply with the bill's requirements or face expensive
litigation.
For example, the bill provides that an employer shall not
take an adverse action against a person because of his or
her "known status." (Page 3, line 26). The term "known
status" is ambiguous and would result in having an employer
inquire into an employee's personal life because courts
have found that "knowledge" means "actual and constructive
knowledge." Constructive knowledge is that which the
employer knew or should have known
Although SB 400 requires a victim to disclose his or her
status when asking for an accommodation at work, for an
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employer to appropriately act under the bill's
requirements, the employer would need to constantly delve
into personal information that otherwise would be off
limits. Employers are not allowed to invade an employee's
privacy, Labor Code section 96(k) prohibits employers from
taking action based upon off-duty conduct.
California law requires employers to provide a safe
workplace. Employers must protect their employees from
threatened or actual violence, or they face potential civil
liability. This bill does not provide for the consideration
of other employees in the provision of accommodations.
Finally, SB 400 creates new lawsuits against employers for
failing to provide a "reasonable accommodation" (Page 5,
lines 38-40). This bill puts employers in a legal Catch-22
by exposing them to liability for infringing on an
employee's right of privacy when making job-related
decisions.
Author's Proposed Amendments. In response to opposition
concerns, the author helpfully proposes to amend the bill by
making it abundantly clear that its protection extends only
where the victim has provided notice of his or her status to the
employer or the employer has actual knowledge of the status.
Specifically, the amendment would be, to strike out "known" on
page 3, line 26, and on line 27 insert the following after
"stalking:" if the victim provides notice to the employer of
the status or the employer has actual knowledge of the status.
Prior Related Legislation . AB 1740 (V.M. Perez) of 20112 was a
substantively identical measure which passed this Committee but
was held in Assembly Appropriations. SB 1745 (Kuehl) of 2006
was similar to this bill, but took a different approach, adding
a provision to the Civil Code that declared it against the
public policy of the state for any employer to harass or
discriminate against an individual because the person is a
victim of domestic violence, sexual assault or stalking. SB
1745 was vetoed by Governor Schwarzenegger.
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REGISTERED SUPPORT / OPPOSITION :
Support
A Better Balance
ACLU of California
The Work and Family Legal Center
Alameda County Family Justice Center
American Civil Liberties Union of California
Asian Pacific Islander Legal Outreach
California Communities United Institute
California Immigrant Policy Center
California Labor Federation, AFL-CIO
California Latinas for Reproductive Justice
California Legislative Women's Caucus
California Nurses Association
California Police Chiefs Associations, Inc.
California Rural Legal Assistance Foundation
California School Employees Association
California Women's Law Center
Center for Domestic Peace
Centro Legal de la Raza
Child Abuse Listening Mediation
Community United Against Violence
Crime Victims United of California
Domestic Violence Solutions for Santa Barbara County
Emergency Shelter Program
Equal Rights Advocates
Exelligence Learning Corporation
Futures Without Violence
Hawaii State Coalition Against Domestic Violence
Interface Children & Family Services
Jewish Family Service of Los Angeles
La Casa de las Madres
Legal Aid Society - Employment Law Center
Legal Aid Society of San Mateo County
Legal Momentum - The Women's Legal Defense and Education Fund
Mountain Crisis Services
Natinal Association of Social Workers - California
Next Door Solutions to Domestic Violence
Organización en California de Líderes Campesinas, Inc.
Peace Officers Research Association of California
Peace Over Violence
Sargent Shriver National Center on Poverty Law
South Asian Network
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United Automotive Workers, Local 2865
U.S. Women's Chamber of Commerce
Violence Prevent Coalition
Walnut Avenue Women's Center
Western Center on Law & Poverty
Williams-Sonoma, Inc.
Women's Crisis Support - Defensa de Mujeres
Women's Employment Rights Clinic - Golden Gate University School
of Law
Women's Foundation of California
Worksafe
Opposition
Associated General Contractors
California Association of Joint Powers Authority
California Bankers Association
California Chamber of Commerce
California Employment Law Council
California Framing Contractors Association
California Grocers Association
California Hotel and Lodging Association
California Independent Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
Chambers of Commerce Alliance Ventura & Santa Barbara Counties
National Federation of Independent Business
South Bay Association of Chambers of Commerce
Western Electrical Contractors Association, Inc.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334