BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 404|
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THIRD READING
Bill No: SB 404
Author: Jackson (D)
Amended: 5/24/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 4/2/13
AYES: Evans, Corbett, Jackson, Leno, Monning
NOES: Walters, Anderson
SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/23/13
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
SUBJECT : Fair employment: familial status
SOURCE : California Employment Lawyers Association
Center for WorkLife Law
Equal Rights Advocates
DIGEST : This bill includes familial status, as an additional
basis upon which the right to seek, obtain, and hold employment
cannot be denied.
ANALYSIS : Existing law, 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.
This bill:
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1. Adds "familial status" to the list of characteristics on
which basis a person may not be discriminated against in
employment.
2. Defines "familial status" in this context to include "an
individual who provides medical or supervisory care to a
family member."
3. Defines "family member" as a child, parent, spouse, domestic
partner, or parent-in-law, as defined in various statutes.
4. Makes technical and conforming changes to various code
sections.
Background
Various statutes, such as FEHA and the Unruh Civil Rights Act,
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. Over
time, these statutes have been amended to include other
characteristics such as medical conditions, marital status, and
sexual orientation. Also over time, other statutes were amended
to reflect the state's public policy against discrimination in
all forms.
One area that has experienced a significant increase in
litigation is "family responsibility discrimination" in
employment. FEHA does not directly prohibit discrimination
based on an employee's status as a family caregiver. However,
employees with family caregiving responsibilities who work full-
or part-time, job-share, use flextime, or follow some type of
modified compressed work schedule and were subjected to adverse
employment actions have litigated against their employers using
various federal statutes. For example, Title VII of the Civil
Rights Act of 1964, 42 U.S.C.S. Sec. 2000e, which prohibits
employment discrimination on the basis of sex, race, color,
religion and national origin, 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. That law has been of limited use in challenging
adverse employment actions arising from the need to care for or
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rear a child once born. (See Piantanida v. Wyman Center, Inc.
(8th Cir. 1997) 116 F.3d 340, 342 (holding that claim of
discrimination based on plaintiff's status as a new parent is
not recognizable under the Pregnancy Discrimination Act, 42
U.S.C.S. Sec. 2000e(k)).) The Family and Medical Leave Act of
1993 (FMLA) (29 U.S.C.S. Sec. 2601 et seq.) and the Americans
with Disabilities Act of 1990 (ADA) (42 U.S.C.S. Sec. 12101 et
seq.) 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, the challenge has proven to be difficult and
complicated and, because the family caregiving responsibility is
not directly addressed by the statutes, the path has been
tortuous.
Despite the difficulty of launching a lawsuit against an
employer for discrimination based on family caregiving
responsibilities, where the federal statutes do not directly
provide protection, there has been a significant increase in
these cases. 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. (Stephanie Bornstein, Robert J.
Rathmell, Univ. of Cal. Hastings Center for Worklife Law,
Caregivers as a Protected Class?: The Growth of State and Local
Laws Prohibiting Family Responsibilities Discrimination (Dec.
2009), p. 2.) 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 of these cases can be very
complicated, difficult, and expensive. According to articles
written for employers by human resource journals, 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.
Other state statutes providing familial status protection . The
University of California-Hastings Center for Worklife Law issued
a study (Study) on laws prohibiting family caregiver
discrimination, which identified "63 local laws in 22 states
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that go beyond state and federal law to expressly prohibit
discrimination at work against those who are also caregivers at
home." (Stephanie Bornstein, Robert J. Rathmell, Univ. of Cal.
Hastings Center for Worklife Law, Caregivers as a Protected
Class?: The Growth of State and Local Laws Prohibiting Family
Responsibilities Discrimination (Dec. 2009), p. 1.)
In particular, the Study notes several states that provide
various levels of family caregiving status protections as
follows:
Alaska's state employment antidiscrimination law includes
"parenthood" as a protected classification in order to prevent
discrimination in employment because of parenthood. (See
Alaska Stat. Sec. 18.80.220(a).)
The District of Columbia (D.C.), in its Human Rights Act,
includes the term "family responsibilities" as a protected
classification in its employment antidiscrimination law.
Under D.C. law, family responsibilities means "the state of
being, or the potential to become, a contributor to the
support of a person or persons in a dependent relationship,
irrespective of their number, including the state of being the
subject of an order of withholding or similar proceedings for
the purpose of paying child support or a debt related to child
support." (D.C. Code Ann. Sections 2-1401.01, 2-14101.02,
1-2502(12).)
Connecticut's employment antidiscrimination provisions
prohibit employers from requesting or requiring employee
information related to "familial responsibilities" unless the
information is directly related to a bona fide occupational
qualification. (Conn. Gen. Stat. Section 46a-60(a)(9)).
Unlike the Alaska and D.C. statutes, this is not a general
prohibition against employment discrimination on the basis of
familial responsibilities, but rather a limitation on an
employer's right to collect personal information that could be
used for a discriminatory purpose.
New Jersey has enacted a regulation, which accompanies the
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antidiscrimination statutes, that expressly prohibit state
(but not private) employers from discriminating against their
employees based on familial status. (N.J. Admin. Code Sec.
4A:7-3.1(a).) The regulation prohibits not only
discriminatory acts and harassment based on familial status,
but also retaliation for participation in the complaint
process. (N.J. Admin. Code Section 4A:7-3.1(h).)
In addition to state laws, the Equal Employment Opportunity
Commission released a guideline regarding unlawful disparate
treatment for family caregivers under federal laws. The
guideline notes that "[a]lthough the federal EEO [Equal
Employment Opportunity] laws do not prohibit discrimination
against caregivers per se, there are circumstances in which
discrimination against caregivers might constitute unlawful
disparate treatment." (U.S. Equal Empl. Opp. Comm., Enforcement
Guidance: Unlawful Disparate Treatment of Workers with
Caregiving Responsibilities (May 23, 2007)
[as of March 28,
2013].) This bill provides clear statutory guidance to
California employers for family caregiver discrimination rather
than requiring employers to sort through various federal laws,
guidelines, and state regulations.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee, the Department
of Fair Employment and Housing (DFEH) anticipates that the
inclusion of "familial status" among the bases upon which
employment discrimination is prohibited would cause a
non-absorbable increase in workload related to the number of
complaints filed for investigation. Specifically, DFEH estimates
on-going costs of $138,750 to add 1.5 positions to investigate
the additional complaints it anticipates would be filed if this
bill is enacted. DFEH will not receive federal reimbursement
for the investigation and prosecution of these additional
complaints under its workshare agreement with the Equal
Employment Opportunity Commission.
DEFH already investigates complaints involving large employers'
(50 or more employees within 75-miles of worksite)
discrimination of employees' qualified California Family Rights
Act (CFRA) leave to care for a child, parent and/or spouse.
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Thus, investigations of these claims for all FEHA employers
under this bill could be absorbed.
The 144 additional complaints estimated to be filed annually
will generate investigations but are not anticipated to lead to
significant workload related to prosecution. Generally, less
than one percent of complaints filed with DFEH result in
prosecutions.
SUPPORT : (Verified 5/23/13)
California Employment Lawyers Association (co-source)
Center for WorkLife Law (co-source)
Equal Rights Advocates (co-source)
9 to 5 National Association of Working Women
American Association of University Women
BreastfeedLA
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Immigrant Policy Center
California Labor Federation, AFL-CIO
California Nurses Association
California Professional Firefighters
California State Association of Electrical Workers
California State Pipe Trades Council
California Teamsters Public Affairs Council
California Women's Law Center
Cancer Legal Resource Center
Communications Workers of America, AFL-CIO, District 9
Engineers & Scientists of California, IFPTE Local 20
Family Caregiver Alliance
International Longshore & Warehouse Union
Labor Project for Working Families
Laborers Locals 777 & 792
Legal Aid Society-Employment Law Center
Los Angeles Alliance for a New Economy
Mexican American Legal Defense and Educational Fund
National Association of Social Workers, California Chapter
Organization of SMUD Employees
Professional and Technical Engineers, IFPTE Local 21
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
Service Employees International Union, California
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The Center for WorkLife Law at UC Hastings College of Law
United Auto Workers, Local 2865
United Food and Commercial Workers Western States Council
UNITE-HERE, AFL-CIO
Utility Workers Union of America, Local 132
Western States Council of Sheet Metal Workers
OPPOSITION : (Verified 5/23/13)
Air Conditioning Trade Association
Associated Builders and Contractors of California
California Association of Joint Powers Authorities
California Chamber of Commerce
California Chapter of the American Fence Association
California Employment Law Council
California Farm Bureau Federation
California Fence Contractors Association
California Grocers Association
California Independent Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
Chambers of Commerce Alliance of Ventura & Santa Barbara
Counties
Civil Justice Association of California
Culver City Chamber of Commerce
Engineering Contractors Association
Flasher Barricade Association
Fullerton Chamber of Commerce
Goleta Valley Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Fresno Area Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
Palm Desert Area Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association of California
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Tulare Chamber of Commerce
Visalia Chamber of Commerce
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Western Electrical Contractors Association
ARGUMENTS IN SUPPORT : According to the author's office,
although discrimination based on "familial status" is explicitly
prohibited under the housing provisions of the FEHA, the same is
not true under the employment provisions. Presently, the FEHA
does not adequately and explicitly protect California workers
from being discriminated against at work based on their familial
status. Yet research shows that employees are regularly
discriminated against because of "familial status."
When used as a factor in an employment decision, stereotypes and
assumptions about individuals based on their familial status
would be unlawful-as are, currently, stereotypes and assumptions
about workers based on their race, national origin, sex,
religion, marital status, and other existing protected
classifications.
This bill is solely an anti-discrimination measure, it does not
call for any employee entitlements or any additional leave
related to family responsibilities. This bill also has no
effect on current law that prohibits familial status
discrimination in housing.
The bill's sponsors note that the majority of American workers
have some family caregiving responsibilities outside of work, a
reality that has significant impacts on both employees and their
employers. Seventy percent of U.S. families with children have
both parents in the labor force. One in four employed men and
women have elder care responsibilities and nearly one in 10
workers have caregiving responsibilities for both elders and
children. Any person who has both a job and family
responsibilities can be affected by familial status
discrimination.
ARGUMENTS IN OPPOSITION : Opponents argue that this bill
applies to anyone who is perceived to provide familial care or
associated with someone who provides familial care. Such a
broad application of a protected classification will essentially
encompass almost all employees in the workforce and, therefore,
will hamper an employer's ability to manage their business, as
any adverse employment action the employer takes against an
employee could be potentially challenged as discriminatory on
the basis of "familial status."
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This burden that this bill creates will not only impact large
businesses, but also small businesses. FEHA applies to any
employer who has five employees or more. Accordingly, this bill
will subject these small businesses to potential costly
litigation based on the allegation that an employee who suffered
an adverse employment action provided familial medical or
supervisory care, was perceived as providing such care, or was
associated with someone providing such care.
AL:d 5/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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