BILL ANALYSIS �
SB 404
Page 1
Date of Hearing: July 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 404 (Jackson) - As Amended: May 24, 2013
As Proposed to be Amended
SENATE VOTE : 26-13
SUBJECT : Fair Employment: Familial Status
KEY ISSUE : SHOULD FAMILIAL STATUS BE PROTECTED AGAINST JOB
DISCRIMINATION AS IT HAS LONG BEEN PROTECTED AGAINST HOUSING
DISCRIMINATION?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This measure is substantially similar to, although narrower
than, AB 1999 (Brownley) of last year, which the Committee
passed but was subsequently held in the Senate Appropriations
Committee. The bill prohibits employment discrimination on the
basis of familial status in order to protect certain family
caregivers who work outside of the home. According to the
author and supporters, employers often provide many kinds of
adjustments to employees for a wide range of reasons, but treat
workers with family responsibilities less favorably, often
because of a stereotype that they will not be good workers or
will have higher rates of absence. Current law provides limited
rights to a leave of absence for the birth or adoption of a
child or for serious medical conditions of parents, children or
spouse. This bill does not address leave time, nor does it
relieve employees from the full performance of their job duties;
rather it prohibits discrimination against family caregivers
compared to employees without family responsibilities. As
before, the bill is stridently opposed by business interests who
note that it will hamper the ability of employers to manage
their workplaces, as indeed all anti-discrimination laws
admittedly do. Opponents argue that the bill's definition of
the protected class is so broad as to cover virtually every
employee. It should be noted, however, that as with all
protected statuses under existing discrimination law the bill
imposes no liability on any employer unless it can be proved
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that the employer engaged in discrimination against the person
because of the protected 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)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, parent-in-law, as defined in various statutes.
4)Makes related technical and conforming changes to various code
sections.
EXISTING LAW :
1)Under the Fair Employment and Housing Act, 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. (Gov. Code Sec.
12920 et seq.)
2)Prohibits discrimination based on "familial status" in housing
under the FEHA, 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. (Government Code section 12955.2.)
3)Provides certain protected employment leave of absence rights
for certain employees pursuant to the California Family Rights
Act (CFRA) for the birth of a child or placement of a child in
the employee's family for adoption or foster care; for the
serious health condition of the employee's child, parent or
spouse; or for the employee's own serious health condition.
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Leave time under CFRA may total up to 12 workweeks in a
12-month period. An employer is not required to pay an
employee during a CFRA leave, except when an eligible employee
elects, or the employer requires, the employee to use any
accrued vacation time or other accumulated paid leave other
than accrued sick leave. To be eligible for CFRA leave, an
employee must be either a full-time or part-time employee
working in California, have more than 12 months (52 weeks) of
service with the employer, have worked at least 1,250 hours in
the 12-month period before the date the leave begins, and work
at a location in which the employer has at least 50 employees
within 75 miles radius of the employee's work site.
(Government Code section 12945.2.)
COMMENTS : The author explains the bill as follows:
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.
According to supporters, caregiver discrimination impacts a wide
array of workers - both men and women with children, as well as
workers without children who have elder care responsibilities,
sick spouses or partners, disabled family members, or other
family care obligations. Most low-wage and hourly workers lack
workplace flexibility and are more likely to have family care
obligations, so they are often especially vulnerable to
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work/life conflict. Supporters state that this bill would
prevent employers from unfairly using an individual's status as
a caregiver for a family member as a factor in employment
decisions.
Supporters argue that typical patterns of caregiver
discrimination include:
Employer treats pregnancy and family medical leave
differently than non-caregiver leave;
Discrimination against female workers because of pregnancy,
maternity leave, or caregiver status;
General discrimination against and animosity toward male
caregivers; and/or
Employer subjects caregivers to stricter rules because of
past caregiving absences.
This Bill Proposes To Include "Family Caregiver Status" In The
List Of Prohibited Bases of Employment Discrimination . Despite
the frequently-cited importance of the family, and the
diminished governmental assistance available to many families as
the result of budget reductions, family caregivers - typically,
but not exclusively women - are currently provided no legal
protection against adverse action at work. Many employees must
provide care not only for children but for aging parents. The
absence of adequate health care coverage compounds this burden.
The absence of protection is believed to be of greatest
significance for lower-paid employees who are most often
vulnerable because they are unable to afford private family care
support, usually lack representation for problems at work, are
more susceptible to job loss, and are less able to find
replacement work.
This problem could be addressed in any number of ways. If
governmental supports were more available, as in other
countries, there might be fewer demands on working family
members. Such programs would cost money, however, and would
almost certainly face ideological opposition by those who oppose
tax increases or a larger role for government. Alternatively,
higher wages and better jobs would allow more family caregivers
to stay out of the workforce. That approach likewise faces
significant political obstacles. This bill therefore asks
employers to bear an additional but perhaps tolerable
responsibility - that is, not to disfavor those with family
caregiving responsibilities.
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Current Law Generally Does Not Protect Workers Who Face
Discrimination Because of Family Caregiving . When such
caregivers suffer retaliation and discrimination at work, they
have sometimes brought legal action using existing federal or
state statutes. While these provide remedies for some forms of
discrimination, they do not directly address an employee's
status as a family caregiver as a protected class.
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 to work
would drop after she received tenure because she "had little
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 unlawful
discrimination is evidenced in Tisinger v. City of Bakersfield,
(2002) WL 275525. In that 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 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."
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Recent Report on "Family Responsibilities Discrimination" (FRD) .
According to a recent report unfair treatment of family
caregivers is a significant problem:
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 2++005 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
Enforcement Guidance on the topic of caregiver
discrimination, explaining in detail how existing federal
laws that prohibit sex and disability discrimination
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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."
(See Bornstein and Rathmell, Caregivers as Protected Class? The
Growth of State and Local Laws Prohibiting Family
Responsibilities Discrimination (Center for Worklife Law,
University of California, Hastings College of the Law) (December
2009).)
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Protections Similar To Those In This Bill Have Been Adopted In
Other States. According to the same report cited above, a few
states have attempted to craft some level of protection for
employees that fall within this category.
"While the vast majority of states have no explicit protections
against FRD, laws or regulations in Alaska, Connecticut, New
Jersey, and the District of Columbia are the exceptions to the
rule." According the report, these states have enacted the
following provisions:
Alaska. Alaska's state employment anti-discrimination law
includes "parenthood" as a protected classification. According
to the statute, the policy of the state and purpose for enacting
this provision was to prevent discrimination in employment
because of parenthood. The statute applies to all private
employers with one or more employee, as well as the state and
its subdivisions, and provides a private right of action for
aggrieved employees.
District of Columbia. More encompassing in the caregiving
relationships it covers, the District of Columbia includes the
term "family responsibilities," as a protected classification in
its employment anti-discrimination 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." In Simpson v. DC OHR, the D.C.
Court of Appeals questioned the scope of this definition, noting
that "[t]he statute does not reveal whether the family
responsibilities must rise to the level of a legal duty?or
whether a moral obligation to care for an ill parent is
sufficient." The District of Columbia Human Rights Act provides
for an administrative procedure and allows a private right of
action for damages and other related relief.
Connecticut. While Connecticut does not establish FRD as a
protected classification, its employment anti-discrimination
provisions prohibit employers from requesting or requiring
employee information related to "familial responsibilities"
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unless the information is directly related to a bona fide
occupational qualification. 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.
The Connecticut employment discrimination statute also provides
a private right of action to employees.
New Jersey. Similarly, New Jersey does not include FRD as a
protected classification in its employment anti-discrimination
protections, but?the regulations accompanying the state
anti-discrimination laws expressly prohibit state (but not
private) employers from discriminating against their employees
based on familial status. The regulation prohibits not only
discriminatory acts and harassment based on familial status but
also retaliation for participation in the complaint process.
For enforcement, it authorizes use of a wide range of remedial
measures including training, therapy, termination of employment,
and referral to other agencies for prosecution.
This Measure Is Similar To But More Narrow Than Prior Measures
Passed By This Committee. This is substantially similar to last
year's AB 1999 (Brownley), which passed this Committee but was
subsequently held in Senate Appropriations. This bill is
narrower than AB 1999 however in that it covers fewer family
relationships, omitting siblings, grandparents and grandchildren
who were covered by AB 1999.
This bill is also similar to but more limited than AB 1001
(Skinner) of 2009 which sought to add "familial status" as a
protected category under the FEHA. AB 1001 defined "familial
status" as being an individual who is or who will care for a
family member. AB 1001 passed this Committee but was held under
submission in the Assembly Appropriations Committee.
Previously, this Committee passed SB 836 (Kuehl) of 2007 which
would have protected "familial status" in employment under the
FEHA, defined 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
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measure was vetoed by Governor Schwarzenegger.
ARGUMENTS IN OPPOSITION : A coalition of business interests lead
by the California Chamber of Commerce submitted the following
statement in opposition to the bill:
SB 404 (Jackson) ? has been labeled as a JOB KILLER, as it
will dramatically increase the amount of frivolous
litigation under the Fair Employment and Housing Act (FEHA)
based upon an employee's "familial status," which will
ultimately hamper the ability of California employers to
conduct business and manage their employees.
SB 404 proposes to include "familial status" as a protected
classification under FEHA to prevent discrimination on such
basis. The term "familial status" is broadly defined as:
(1) any individual who provides "medical or supervisory
care" to a child, parent, spouse, or domestic partner; (2)
any employee who is "perceived" as someone who provides
medical or supervisory care to a child, parent, spouse,
domestic partner, or in-law; or (3) any person who is
"associated" with a person who provides medical or
supervisory care to a child, parent, spouse, domestic
partner, or in-law. The term "medical" care 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. Moreover,
"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
"supervising" the care the family member receives.
Furthermore, SB 404 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."
This burden that SB 404 creates will not only impact large
businesses, but also small businesses. FEHA applies to any
employer who has five employees or more. Accordingly, SB
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404 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.
California already protects employees from discrimination
on the basis of sex, pregnancy, medical condition, mental
disability, or physical disability. Similarly, California
provides employees with leave to care for the serious
medical condition of family members, which may be
compensated through California's Paid Family Leave Act.
Additionally, California requires "kin care" that mandates
an employee be allowed to use at least half of any 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 SB 404,
other than to increase litigation opportunities.
There were approximately 19,500 discrimination claims filed
in 2010 with the Department of Fair Employment and Housing
under FEHA, which were 1,000 complaints more than in 2009.
Notably, over 4,000 of these complaints were dismissed due
to lack of evidence of any violation. Adding this new
expansive classification to FEHA will only cause such cases
to dramatically increase, thereby burdening the state
agency as well as California employers with costly
litigation.
Author's Technical Amendment. In order to avoid inadvertent
confusion regarding potential negative implications with respect
to the relationship between the FEHA and other employment laws,
the author properly proposes to revise the bill with the
following technical amendment:
SEC. 6. The Legislature intends that the amendments of Sections
12920, 12921, 12940, and 12955.2 to the Government Code made by
this act , the provisions of this chapter do not supersede,
limit, or preempt any federal, state, or local law that provides
greater protections from employment discrimination than those
provided in these sections this chapter. The Legislature further
intends that these amendments are this chapter is not intended
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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.
Prior Related Legislation . This bill is substantially similar
to AB 1999 (Brownley) of 2012, which passed this Committee but
was held on suspense in the Senate Appropriations Committee.
Prior attempts at providing familial status y protection have
likewise proved unsuccessful. SB 836 (Kuehl, 2007), which was
similar to this bill, would have added "familial status" to
employment anti-discrimination protections. SB 836 was vetoed
by Governor Schwarzenegger. AB 1001 (Skinner and Ma, 2009) also
would have prohibited employment discrimination based on
familial status. AB 1001 was held in the Assembly
Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Employment Lawyers Association (co-sponsor)
Center for Worklife Law (co-sponsor)
Equal Rights Advocates (co-sponsor)
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 Teachers Association
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
Glendale City Employees Association
International Longshore & Warehouse Union
Laborers Locals 777 & 792
Labor Project for Working Families
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Legal Aid Society - Employment Law Center
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
Santa Rosa City Employees Association
Service Employees International Union, California
UNITE-HERE, AFL-CIO
United Auto Workers, Local 2865
United Food and Commercial Workers Western States Council
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 Conejo Valley Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Greater Fresno Area Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
Palm Desert Area Chamber of Commerce
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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
Western Electrical Contractors Association
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334