BILL ANALYSIS �
SB 404
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Date of Hearing: June 26, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hern�ndez, Chair
SB 404 (Jackson) - As Amended: May 24, 2013
SENATE VOTE : 26-13
SUBJECT : Fair employment: familial status.
SUMMARY : Adds "familial status" to the protected categories of
the employment provisions of the Fair Employment and Housing Act
(FEHA). Specifically, this bill :
1)Expands the scope of prohibited bases of discrimination under
employment provisions of FEHA to include "familial status."
2)Provides that "familial status" means an individual who
provides medical or supervisory care to a family member.
3)Specifies that "family member" means a child, a parent, a
spouse, a domestic partner, or a parent-in-law, as those terms
are defined.
4)Specifies legislative intent that these provisions do not
supersede, limit, or preempt any federal, state, or local law
that provides greater protections from employment
discrimination.
5)Specifies legislative intent that these provisions are not
intended to limit or preclude any claim or cause of action on
the basis of familial status or family responsibilities under
federal, state, or local law.
6)Makes related technical and conforming changes.
EXISTING LAW :
1)Provides, under FEHA and the Unruh Civil Rights Act,
protections against discrimination in employment, housing,
public accommodation and services provided by business
establishments on the basis of specified personal
characteristics such as sex (including gender), race, color,
national origin, religion, sexual orientation, and disability.
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2)Prohibits discrimination based on "familial status" under the
housing provisions of FEHA. Under the Government Code (�
12955.2), "familial status" is defined as one or more
individuals under 18 years of age who reside with a parent,
with another person with care and legal custody of that
individual (including foster parents) or with a designee of
that parent or other person with legal custody. Familial
status also includes a pregnant woman or a person who is in
the process of adopting or otherwise securing legal custody of
any individual under 18 years of age.
FISCAL EFFECT : 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.
COMMENTS : This bill proposes to include "familial status" in
the list of prohibited bases for employment discrimination.
Unlike the housing provisions of FEHA, "familial status" in this
case is defined more broadly to include family relations beyond
independent children.
In the past, discrimination cases have been brought by employees
using existing federal or state statues that, while providing
remedies for some form of discrimination, do not directly
address an employee's status as a family caregiver as a
protected class. Instead these employees have had to try to fit
their circumstances into narrow definitions in the statutes, or
to ask courts to apply decisional law in many jurisdictions to
their case, to be able to fashion some remedy.
For example, in 2004, a school psychologist at an elementary
school, who had received positive performance reviews for two
years and had been assured that she would receive tenure, was
denied tenure after having a child. Her supervisors expressed
concerns that it was "not possible for [her] to be a good mother
and have this job" and questioned whether her commitment work
would drop after she received tenure because she "had little
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ones at home." Despite the fact that there was no
similarly-situated male employee for her to compare herself to,
the Second Circuit allowed her gender discrimination case to
proceed, holding that stereotypes about mothers not being
committed to or compatible with work were "themselves, gender
based." Back v. Hastings on Hudson Union Free School District,
(2004) 365 F.3d 107.
Perhaps the most apparent instance where "familial status" may
not have an adequate substitute in existing bases of
discrimination is evidenced in Tisinger v. City of Bakersfield,
(2002) WL 275525. In this case, Derek Tisinger, a single father
who worked as a firefighter for approximately 13 years, was at
the top of the list for promotion to captain but was passed over
because of his family responsibilities. Tisinger filed a
complaint against the City of Bakersfield for discrimination on
the basis of "marital status" under FEHA. He claimed that he
unfairly received negative evaluation for his use of sick leave
and trading work shifts - done properly under employer policy -
to take care of his children. The claim was eventually denied
because while he argued that his status as a "single parent" was
the basis for discrimination, the Court held that Tisinger could
not provide sufficient evidence that discrimination occurred as
a result of "marital status." Essentially, he was unable to
show that being a "single parent" in this case put him at a
disadvantage as opposed to being a "married parent." In this
particular instance, Tisinger's promotional eligibility was more
closely linked to his relationship to his children - his
"parental status" or familial status" - rather than his "marital
status."
Recent Report on "Family Responsibilities Discrimination" (FRD)
According to a recent report entitled "Caregivers as a Protected
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Class?<1>":
"Over the past five years, the issue of employment
discrimination based on family caregiving responsibilities
has grabbed the attention of legal and human resource
professionals nationwide. Family responsibilities
discrimination, or FRD, is discrimination against employees
based on their responsibilities to care for family
members-including pregnancy discrimination, discrimination
against mothers and against fathers who actively
participate in caring for their children, and
discrimination against workers who care for aging parents
or ill or disabled spouses or family members. FRD can occur
when a new mother is denied a promotion based on the
assumption that she will no longer be as committed to work,
rather than her job performance; or when a father's
employer refuses to allow him to take paternity leave to
which he is legally entitled because "his wife should do
it"; or when an employee is fired for not meeting work
goals while he is on a legally protected family and medical
leave to care for an ailing parent.
Also known as caregiver discrimination, FRD has become a
hot topic not only among attorneys and human resources
professionals, but also with workers, unions, employers,
courts, policymakers, and the press. In 2006, the Center
for WorkLife Law (WLL) released the first study of FRD
lawsuits, analyzing more than 600 such suits filed between
1971 and 2005. The 2006 study documented a 400% increase
in the number of FRD cases filed between 1996 and 2005 as
compared to the number filed in the decade prior, between
1986 and 1995. To date, WLL has now collected data on more
than 2000 FRD lawsuits; preliminary analysis of this much
larger group of cases shows the number of FRD lawsuits
filed continuing to increase each year between 2006 and
2008.
Recognizing the growing scope of the problem, in 2007, the
U.S. Equal Employment Opportunity Commission (EEOC) issued
-------------------------
<1> Bornstein Stephanie & Robert J. Rathmell. "Caregivers as
Protected Class? The Growth of State and Local Laws Prohibiting
Family Responsibilities Discrimination." The Center for
Worklife Law, University of California, Hastings College of the
Law (December 2009).
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Enforcement Guidance on the topic of caregiver
discrimination, explaining in detail how existing federal
laws that prohibit sex and disability discrimination
protect family caregivers at work. The Guidance raised the
profile of the problem of FRD considerably, in particular
catching the attention of employers and the attorneys who
represent them. In April 2009, the EEOC followed up with a
second publication on the topic, which supplements the 2007
Guidance by providing examples of best practices for
employers to decrease the likelihood of EEO complaints and
remove barriers to equal employment for workers with
caregiving responsibilities.
The number of lawsuits alleging FRD is vast and
ever-growing; yet while FRD is actionable under many
theories in existing federal and state law, with a very few
exceptions, FRD is not expressly prohibited in most state
and in federal statutes. This means that, barring the few
exceptions, there are no laws that protect caregivers or
people with family responsibilities as a specific group or
class from discrimination. Instead, plaintiffs who have
sued their employers for FRD have successfully fit their
FRD-related claims into other legal theories in existing
state and federal law-for example as sex discrimination,
discrimination based on association with a person with a
disability, or a violation of state or federal family and
medical leave laws.
This report identifies that, while no federal law and only
a few state laws expressly prohibit FRD, at least 63 local
laws do-by specifically including parental or familial
status or family responsibilities as a protected
classification, like sex, race, religion, and so on, in
city or county codes that prohibit employment
discrimination. The report presents the findings of a
survey by the Center for WorkLife Law of nearly 3,700 local
government laws (city and county ordinances and codes) that
found 63 local governments that explicitly prohibit
employment discrimination based on an employee's family
status or responsibilities."
Other State Laws Cited by Supporters
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The University of California-Hastings Center for Worklife Law
cites the aforementioned study on laws prohibiting family
caregiver discrimination, which identified "63 local laws in 22
states that go beyond state and federal law to expressly
prohibit discrimination at work against those who are also
caregivers at home.
In particular, that 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. Secs. 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. Sec.
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 accompany the
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
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complaint process. (N.J. Admin. Code Sec. 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].)
Upon passage out of this Committee, this bill will be referred
to Assembly Judiciary Committee.
ARGUMENTS IN SUPPORT :
The author writes the following in support of this bill:
"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.
The bill is solely an anti-discrimination measure: It does
not call for any employee entitlements or any additional leave
related to family responsibilities. The bill also has no
effect on current law that prohibits familial status
discrimination in housing."
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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 ten
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 :
A coalition of opponents to this bill raises various concerns
about creating an additional characteristic under FEHA that
would have anti-discrimination protection. First, the coalition
argues that this bill would be a "job killer" because expanding
FEHA protections for "familial status" will dramatically
increase the amount of frivolous litigation and will hamper
California employers' ability to conduct business and manage
employees. Second, the coalition argues that the term "medical
care" in this bill is "undefined and therefore could be
liberally interpreted to include such tasks as administering
over the counter medication once a day or even driving a listed
family member to a doctor's appointment on a quarterly basis."
Third, the coalition argues that the term "supervisory care is
also ambiguous and would expand this proposed classification to
employees who are not actually providing any care to a covered
family member, but rather are 'supervising' the care the family
member receives." (Emphasis in original.)
Additionally, the opposition argues that this bill will have a
broad application that will impact both large and small
businesses. These businesses will be subject to "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."
Finally, the opposition argues that "California already protects
employees from discrimination on the basis of sex, pregnancy,
medical condition, mental disability, or physical disability . .
. provides employees with leave to care for the serious medical
condition of family members . . . [and] requires 'kin care' that
mandates an employee be allowed to use at least half of any
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accrued sick leave to care for family members. These various
leaves and protections are in addition to those provided by
federal law. Given these existing protections, there is simply
no basis to include such a broad protected classification under
California law as proposed by [this bill], other than to
increase litigation opportunities."
PRIOR LEGISLATION :
This bill is substantially similar, but not identical to, AB
1999 (Brownley) from 2012. AB 1999 defined "familial status" to
include being an individual who is, who will be, or who is
perceived to be, a family caregiver. AB 1999 was held in the
Senate Appropriations Committee.
This bill is also similar, but not identical, to AB 1001
(Skinner) of 2009. AB 1001 defined "familial status" as being
an individual who is or who will care for a family member. AB
1001 was held under submission in the Assembly Appropriations
Committee.
This bill is also similar, but not identical, to SB 836 (Kuehl)
of 2007. Specifically, the final version of SB 836 defined
"familial status" as being an individual who is or who will be
"caring for or supporting" a family member. SB 836 further
defined "caring for or supporting" as any of the following:
providing supervision or transportation; providing psychological
or emotional comfort and support; or addressing medical,
educational, nutritional, hygienic, or safety needs.
That measure was vetoed by Governor Schwarzenneger, who stated
the following:
"California has the strongest workplace laws against
discrimination and harassment in the country. These laws
provide workers necessary protections from unfair
retaliation, discipline, and termination for matters
unrelated to job performance.
Although I support these laws, expanding workplace
protections to include something as ambiguous as 'familial
status' is not appropriate. This bill will not only result
in endless litigation to try and define what discrimination
on the basis of 'familial status' means, it will also
unnecessarily restrict employers' ability to make personnel
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decisions."
REGISTERED SUPPORT / OPPOSITION :
Support
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 Employment Lawyers Association (co-sponsor)
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 Teachers Association
California Teamsters Public Affairs Council
California Women's Law Center
Cancer Legal Resource Center
Center for WorkLife Law (co-sponsor)
Communications Workers of America, AFL-CIO, District 9
Engineers & Scientists of California, IFPTE Local 20
Equal Rights Advocates (co-sponsor)
Excelligence Learning Corporation
Family Caregiver Alliance
Glendale City Employees Association
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
Mr. Donald Bentley
National Association of Social Workers, California Chapter
Organization of SMUD Employees
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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
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
Air Conditioning Trade Association
Associated Builders and Contractors of California
California Association of Joint Powers Authorities
California Bankers Association
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
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Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Tamrac, Inc.
Tulare Chamber of Commerce
Visalia Chamber of Commerce
Western Electrical Contractors Association
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091