BILL ANALYSIS
AB 1001
Page 1
Date of Hearing: April 27, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1001 (Skinner and Ma) - As Amended: April 14, 2009
SUBJECT : FAIR EMPLOYMENT: FAMILIAL STATUS
KEY ISSUE : SHOULD CALIFORNIA EMPLOYERS, EMPLOYMENT AGENCIES AND
LABOR UNIONS BE PROHIBITED FROM DISCRIMINATING ON THE BASIS OF
FAMILIAL STATUS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill would add "familial status" to the list of
characteristics (e.g., race, sex, religion, etc.) that are
prohibited bases of discrimination under the employment
provisions of the Fair Employment and Housing Act (FEHA).
Supporters argue that the bill is needed to prevent employers
from unfairly relying on stereotypes and assumptions about an
individual's family responsibilities in the same way that
existing law prohibits irrational decisions on the basis of
race, sex and other factors. Because existing law does not
cover all cases of different treatment based on real or
perceived family responsibilities, supporters state, many
workers are falling through the cracks of existing civil rights
protections, while at the same time employers find themselves
confused about the scope of their potential liability. In
opposition, the Chamber of Commerce argues, in sum, that the
bill is vague and overly broad, unnecessary, and would invite
frivolous litigation.
SUMMARY : Prohibits discrimination in employment and in training
programs by employers, employment agencies and labor
organizations on the basis of familial status. Specifically,
this bill :
1)Adds "familial status" to the list of characteristics on which
basis a person may not be discriminated against in employment,
including perceived familial status.
2)Defines familial status to mean having or providing care for
any of the following: a child, a parent, a spouse or domestic
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partner, a parent-in-law, a sibling, a grandparent, or a
grandchild.
3)Provides that nothing in this part relating to discrimination
on account of familial status shall do either of the
following: (A) affect the right of an employer to reasonably
regulate, for reasons of supervision, safety, security, or
morale, the working of spouses in the same department,
division, or facility, consistent with the rules and
regulations adopted by the commission; (B) prohibit bona fide
health plans from providing additional or greater benefits to
employees with dependents than to those employees without or
with fewer dependents.
EXISTING LAW , under 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. (Government
Code section 12920 et seq. All references are to the Government
Code unless otherwise indicated.)
COMMENTS : In support of the bill the author states:
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. AB 1001 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. The bill is necessary to
clarify existing legal theories and such as those recently
reviewed in the EEOC Enforcement Guidance (May 2007).
Clarifying familial status within FEHA would provide
California workers with confidence in their employment
rights especially during these vulnerable economic times.
At the federal level the Equal Employment Opportunity
Commission (EEOC) recently issued a guidance to address
caregiver discrimination titled "Enforcement Guidance on
Treatment of Workers with Caregiving Responsibilities" (May
2007). This guidance recognizes that there are no federal
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laws that expressly prohibit discrimination against
caregivers. However, it presents 20 examples of caregiver
discrimination that can broadly fall under federal statues,
and where applicable, cites to cases in which courts have
so held. Unfortunately, the guidance provides only
guidelines and lacks the force of law.
President Obama has already recognized the need to
strengthen working family protections laws. Part of his
plan prioritizes protections against caregiver
discrimination 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."
Background on Family Responsibilities Discrimination .
Supporters of this bill contend that a large majority of workers
are responsible for some family member, whether it be a child,
partner, or elderly relative, and that recent studies have shown
that employees who are responsible for the care of children or
other 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, supporters state, "family responsibilities discrimination"
(FRD) lawsuits (also known as "familial status discrimination"
(FSD) and "caregiver discrimination") have increased 400
percent, including discrimination in promotion, denial of leave
time and termination of employment. The rise in caregiver or
family responsibilities discrimination is expected to quicken as
an increasing number of baby boomers are called on to raise
aging parents, often while also caring for children - the
so-called "squeezed" or "sandwiched" generation. In the absence
of a societal response to these care-giving needs, the burden is
placed on individuals, who in turn seek consideration from
employers.
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. 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
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of these cases can be very complicated, difficult, and
expensive. And, according to articles written for employers by
human resource journals, supporters contend, 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. Examples of
the fact patterns reflected in reported cases include:
A single father who worked as a firefighter for 13 years and
who was in line for a promotion was passed over because of his
family responsibilities. He was criticized for trading
workshifts - which was permitted under employer policy - to
cover his child care needs. A jury verdict in his favor was
overturned by the appellate court because discrimination based
on familial status is not illegal under FEHA. The firefighter
had sued for discrimination on the basis of marital status,
and the court held that did not apply in his case. (Tisinger
v. City of Bakersfield, 2002 WL 275525.)
A vice president of marketing was terminated while seven
months pregnant and planning to take a maternity leave. She
had had excellent performance reviews and her supervisor had
placed her name on a list of employees to be retained during a
downsizing. Employer told her that her position was
eliminated, yet another person was placed in her position.
Employer said she had "mentally checked out" during her
pregnancy. The appellate court found that summary judgment
granted by trial court to the employer was improper. (Kelly
v. Stamps.com (2005) 135 Cal.App.4th 1088 (2d District).)
A truck driver for Albertsons took several months off of work
to provide assistance and comfort for his father who became
severely depressed after the employee's sister was murdered.
When the employee tried to return to work he found out he
would have to start over as a probationary employee with no
seniority. He claimed his circumstances were covered by the
FMLA. Viewing the evidence most favorably for the employee,
the court found enough to create a triable issue of fact
warranting a trial. (Scamihorn v. General Truck Drivers,
Office, Food and Warehouse Union, Local 952, 282 F.3d 1078
(9th Cir. 2002).)
The court upheld a district court's finding of discrimination
in a case involving a pregnant woman who was not hired as a
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result of her potential employer's fear that she would take
family leave. (Wagner v. Dillard Dept. Stores, 2001 WL 967495
(4th Cir. 2001).)
A male trooper with the state police sought to take leave
under his employer's "nurturing leave" policy for primary
caregivers. His employer told him that "God made women to
have babies and, unless [he] could have a baby, there is no
way [he] could be primary care[giver]," and that his wife had
to be "in a coma or dead" before he could qualify as a primary
caregiver under the employer's policy. (Knussman v. Maryland,
272 F.3d 625 (4thCir. 2001).)
Existing State and Federal Law Does Not Expressly Prohibit
Familial Status Discrimination In The Workplace. Various state
laws 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. These
statutes have evolved to reflect various protected
classifications as public policy has recognized the pernicious
effects of irrational hostility based on stereotypes and
assumptions about people having particular personal
characteristics.
FEHA does not directly prohibit discrimination based on an
employee's status as a family caregiver, although FEHA does
prohibit discrimination on the basis of familial status in
housing. This bill would address the question of discrimination
in the workplace on the basis of familial status directly, by
including "familial status" on the list of protected
characteristics.
Recent Federal Guidance Indicates That Employment Discrimination
Against Caregivers Is Sometimes But Incompletely Covered By
Existing Law. Federal law likewise does not expressly prohibit
different treatment of an employee because s/he is a caregiver.
Nevertheless, the author points out that in May 2007, the
federal Equal Employment Opportunity Commission (EEOC) issued
policy guidance to address caregiver discrimination titled
"Enforcement Guidance on Treatment of Workers with Caregiving
Responsibilities." The author states that this guidance
recognizes that while there are no federal laws that expressly
prohibit discrimination against caregivers, it presents 20
examples of various forms of caregiver discrimination that may
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be unlawful under federal statutes.
As noted above, supporters note that employees with family
caregiving responsibilities who have been subjected to adverse
employment actions have litigated claims against their employers
using various federal statutes. For example, Title VII of the
Civil Rights Act of 1964, which prohibits employment
discrimination on the basis of sex, among other characteristics,
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. According to
supporters, that law has been of limited use in challenging
adverse employment actions arising from the need to care for or
raise a child. (See Piantanida v. Wyman Center, Inc., 116 F.3d
340, 342 (8th Cir. 1997)(holding that claim of discrimination
based on plaintiff's status as a new parent is not recognizable
under the Pregnancy Discrimination Act.)
The Family and Medical Leave Act of 1993 (FMLA) and the
Americans with Disabilities Act of 1990 (ADA) in particular 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, supporters report, the challenge has proven to be
difficult and complicated.
Currently, if an employee experiences discrimination at work
based on his/her familial status -
for example, her responsibilities as a mother of young children
or his responsibilities to care for an elderly parent or
disabled spouse - the employee's only recourse is to rely on
alternative theories based on existing law for relief. For
example, the employee may argue that he/she experienced
discrimination based on sex (using a gender stereotyping theory)
or disability (under an "associated with" a person with a
disability theory). But not all cases of family
responsibilities discrimination fit neatly within existing legal
theories. As a result, some workers may be falling through the
cracks of existing civil rights protections, while at the same
time employers are finding themselves confused about the scope
of their potential liability.
Reasonable Distinctions Permitted . As with existing law
regarding marital status discrimination, this bill expressly
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provides that discrimination on account of familial status shall
not do either of the following: (A) affect the right of an
employer to reasonably regulate, for reasons of supervision,
safety, security, or morale, the working of spouses in the same
department, division, or facility, consistent with the rules and
regulations adopted by the commission; (B) prohibit bona fide
health plans from providing additional or greater benefits to
employees with dependents than to those employees without or
with fewer dependents.
Defining Familial Status For Employment Purposes. Currently,
"familial status" is recognized as a protected class in the
housing provisions of FEHA. These provisions define familial
status to mean a minor child who resides with a parent or
another person with custody of the minor, as well as a pregnant
individual who is under 18, or who is in the process of securing
legal custody of a minor.
This definition from housing law, focused on cohabitation, has
the advantage of offering a bright-line test, but one that would
appear to be inappropriate to address the problems of
caregivers, who may not reside with the person for whom they are
providing care. This bill therefore focuses on the caregiving
responsibility as the trigger for protection. Unlike a prior
related bill, SB 836 (Kuehl) of 2007, this bill does not purport
to define "providing care," nor does it include the arguably
broader term of the prior measure, "caring for or supporting" a
family member, which was defined in SB 836 to mean: (1)
providing supervision or transportation; or (2) providing
psychological or emotional comfort and support; or (3) attending
to an illness, injury, or mental or physical disability; or (4)
addressing medical, educational, nutritional, hygienic, or
safety needs. This bill is somewhat broader than SB 836 however
by including an alternative definition that is satisfied by the
simple existence of the specified familial relationships - e.g.,
having a child, spouse/domestic partner, grandparent, sibling,
etc. The authors may therefore wish to consider whether
focusing on their evident objective of reasonably protecting the
caregiving relationship may better accomplish their laudable
purpose while reassuring employers that the bill can be
implemented without undue breadth or uncertainty, as it
apparently has been in other jurisdictions.
Expanded Employment Leave Provision Deleted. As introduced, the
bill included proposed amendments to the law regarding family
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and medical leave comparable to SB 836. That provision has
since been amended out so that the bill simply maintains current
law.
Similar Laws and Legislation In Other Jurisdictions . 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.
Vetoed Prior Bill Was Similar But Broader Than This Measure. As
noted above, this bill is similar to but narrower than SB 836
(Kuehl) of 2007 which also sought to prohibit discrimination on
the basis of familial status. That measure was vetoed with the
following message:
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.
ARGUMENTS IN OPPOSITION : The California Chamber of Commerce
represents the opposition, arguing that the bill "unnecessarily
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creates a vague and expansive new basis for liability under the
Fair Employment and Housing Act. Specifically, CalChamber
argues:
First, this bill is unnecessary. Combined federal and
state laws already provide extensive family care
protections to employees. Under these laws, it is possible
for an employee to take many months of full or modified
leave time for a family member's illness or pregnancy. The
number and rate of successful suits under these laws shows
they provide more than sufficient protections: According to
a study by the UC Hastings Center for Worklife Law, under
federal law alone, the number of lawsuits alleging "family
responsibility discrimination" has increased nearly 400
percent more in the past decade than the prior decade.
Moreover, employees win about half the cases currently
filed under federal and state family statutes, a rate
considered unusually high. The study also concludes that
"?plaintiffs are more likely to win family responsibility
discrimination lawsuits than other types of employment
discrimination cases. The average award is just over
$100,000; the largest award to date is $25 million. The
lawsuits analyzed in this report make a strong case that
companies' effective handling of workers' caregiving
responsibilities is an issue of risk management; companies
that mismanage their work/life programs tend to fare poorly
in court."
Second, this bill will invite frivolous litigation. The
Fair Employment and Housing Act automatically awards
attorneys' fees to a prevailing plaintiff, though the
threshold for filing a lawsuit is low. This imbalance in
the law is a magnet for frivolous lawsuits. Employees
hiring attorneys on a contingency fee basis pay nothing to
initiate a frivolous suit, but employers who successfully
defend these cases are still left to pay all of their own
attorneys' fees. Since all employees have a spouse, child,
parent, grandparent, grandchild or sibling, "familial
status" can serve as a new, easy form of discrimination to
allege. In the Governor's veto message of SB 836 (Keuhl),
a similar bill in 2007, he states "?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.
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Finally, this bill may result in burdensome expanded leave
rights. AB 1001 appears to be the first step in a broader
agenda to expand employee family care leave and opens the
door to new mandates on employers to provide modified.
REGISTERED SUPPORT / OPPOSITION :
Support
California Commission on Status of Women (sponsor)
ACLU
AFSCME
Amalgamated Transit Union
California Labor Federation
California Nurses Association
California State Employees Association
California Teamsters Public Affairs Council
California Women's Law Center
Engineers and Scientists of California
Equal Rights Advocates
International Longshore & Warehouse Union
Peace Officers Research Association of California
Professional & Technical Engineers, Local 21
Strategic Committee of Public Employees
United Food and Commercial Workers Union
UNITE HERE!
Opposition
California Chamber of Commerce
California Grocers Association
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334