BILL ANALYSIS
AB 1001
Page 1
Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 1001 (Skinner) - As Amended: April 14, 2009
SUBJECT : Employment: familial status protection.
SUMMARY : Adds "familial status" to the list of characteristics
(i.e. race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
marital status, sex (including gender), age, or sexual
orientation) that are prohibited bases of discrimination under
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,"
defined as being an individual who is or who will care for a
family member.
2)Defines "family member" as any of the following: a child, a
parent, a spouse, a domestic partner, a parent-in-taw, a
sibling, a grandparent, or a grandchild.
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
2)Prohibits discrimination based on "familial status" under the
housing provisions of FEHA. Specifically, under Government
Code Section 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.
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FISCAL EFFECT : Unknown
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
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
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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."
ARGUMENTS IN SUPPORT:
According to the author, "the large majority of workers are
responsible for some family member, whether it be a child,
partner, or elderly relative. Recent studies have shown that
employees who are responsible for children or ill family members
experience unfair employment decisions based on employers'
assumptions that caregivers will be less committed to their jobs
or less reliable at work. From 1996 to 2006 'family
responsibilities discrimination' (FRD) lawsuits (also known as
'familial status discrimination' (FSD) and 'caregiver
discrimination') have increased 400 percent. Familial status
discrimination in the workplace can take different forms such as
being passed up for promotion, denied leave, or terminated
altogether.
"Currently, discrimination based on familial status is only
prohibited under the housing provisions of the Fair Employment
and Housing Act (FEHA). Under FEHA employers are not allowed to
discriminate an employee based on their marital status, race,
national origin, sex, religion, and other existing protected
classifications, however there is no explicit protection in
California employment law against discrimination on the basis of
familial status.
"Existing law does not adequately safeguard large numbers of
California employees who experience workplace discrimination
based on the need to care for children and other family members.
Discrimination cases related to familial status must apply
alternative legal theories or federal statutes to their cases.
[This bill] would address this gap in the law by including
'familial status' on the list of characteristics that, if used
as the basis for discrimination, is prohibited under the state's
Fair Employment and Housing Act?Clarifying familial status
within FEHA would provide California workers with confidence in
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their employment rights especially during these vulnerable
economic times."
In addition, the author points out that in May 2007, the federal
Equal Employment Opportunity Commission (EEOC) issued a guide to
address caregiver discrimination titled "Enforcement Guidance on
Treatment of Workers with Caregiving Responsibilities." The
author states that this guide recognizes that there are no
federal laws that expressly prohibit discrimination against
caregivers. However, it presents 20 cases of caregiver
discrimination that can broadly fall under federal statues.
Unfortunately, these are only guidelines and lack the force of
law. The author states that, for these reasons various
employment lawyers and advocates suggest that this guidance
provides a limited protection for employees and employers.
In addition, the author notes that President Obama has already
recognized the need to strengthen working family protections
laws by stating, "Workers with family obligations often are
discriminated against in the workplace. We will enforce the
recently-enacted Equal Employment Opportunity Commission
guidelines on caregiver discrimination." The author argues that
this all suggests that employers' views about family and work
need to evolve or else they may face significant liability for
future familial status discrimination claims.
ARGUMENTS IN OPPOSITION:
The California Grocers Association (CGA) argues that in the
current economic climate, employers struggle to distinguish
between many similarly qualified candidates for few available
positions. They contend that this bill could well serve to
provide applicants with additional opportunities to file suit if
they are denied a desired position or promotion. CGA states
that it is counterproductive to make it more difficult for
employers to distinguish between applicants free from fear of
liability.
PRIOR LEGISLATION:
This bill is 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:
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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
decisions."
SIMILAR EFFORTS IN OTHER STATES/LOCALITIES :
According to the author, New Jersey, the District of Columbia,
and Alaska currently prohibit employment discrimination against
employees with responsibility for caring for children or other
family members. See N.J. Stat. Section 10:5-4 ("familial
status"); Alaska Stat. Section 18.80.200 ("parenthood."); D.C.
Human Rights Act, D.C. Code Section 2-1402.11 ("family
responsibilities").
In addition, the author notes that proposals to incorporate
family responsibility, familial status, or parental status as
part of their employment anti-discrimination laws have been
adopted in the following localities: Aspen, Colorado; Atlanta,
Georgia; Cook County, Illinois; Crested Butte, Colorado;
Harrisburg, Pennsylvania; Howard County, Maryland; Miami-Dade
County, Florida; Milwaukee, Wisconsin; State College,
Pennsylvania; Tacoma, Washington; and Tampa, Florida
Finally, the author states that similar legislation is pending
in Florida, Maine, Michigan, and New York.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
American Federation of State, County and Municipal Employees
California Commission on the Status of Women
California Conference Board of the Amalgamated Transit Union
California Labor Federation, AFL-CIO
California Nurses Association/National Nurses Organizing
Committee
California Teamsters Public Affairs Council
California Women's Law Center
Engineers and Scientists of California
Equal Rights Advocates
International Longshore & Warehouse Union
Professional & Technical Engineers, Local 21
Strategic Committee of Public Employees, LIUNA
UNITE HERE!
United Food and Commercial Workers Union, Western States Council
Opposition
California Grocers Association
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091