BILL ANALYSIS �
AB 1999
Page A
Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 1999 (Brownley) - As Introduced: February 23, 2012
SUBJECT : Employment: familial status protection.
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" includes being an individual
who is, who will be, or who is perceived to be, a family
caregiver.
3)Specifies that "family" means a child, a parent, a spouse, a
domestic partner, a parent-in-law, a sibling, a grandparent or
a grandchild, as those terms are defined.
4)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.
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.
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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."
Recent Report on "Family Responsibilities Discrimination" (FRD)
According to a recent report entitled "Caregivers as a Protected
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
-------------------------
<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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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
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
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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
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.
Alaska law. 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 statue 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 law. 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
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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 prohibition. 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" 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 regulation. 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."
ARGUMENTS IN SUPPORT :
Supporters argue that "family responsibilities discrimination"
(FRD) is discrimination against employees based on their family
care obligations or their status as a caregiver. FRD may
include discrimination against pregnant workers, mothers and
fathers who actively participate in child care, and workers who
care for aging parents, ill or disabled spouses or other family
members.
Although caregiver discrimination is painfully common,
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supporters state that no California or federal statute expressly
prohibits discrimination based on family responsibilities. As a
result, most caregiver cases are brought using a patchwork of
claims under federal and state antidiscrimination and leave
laws. Still, this patchwork of claims leaves many workers
unprotected, like fathers who are discriminated against for
family responsibilities, and leaves employers unclear as to what
their obligations are in this area.
Supporters content that this bill would make clear that an
employer may not discriminate against an employee for family
caregiver responsibilities by adding "familial status" to the
list of protected categories (e.g., race, sex, religion, etc.)
under the employment provisions of FEHA.
Finally, they argue that this would not only benefit a wide
range of caregivers who struggle daily to balance the demands of
work and family, but would also greatly impact those in need of
care at a time when the state is experiencing record cuts to
social services.
ARGUMENTS IN OPPOSITION :
Opponents state that this bill significantly seeks to expand the
protections under FEHA, which will hamper California employers'
ability to conduct business and unfairly subject them to costly
litigation.
Opponents state that this bill 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 any individual "who is, who will be, or who
is perceived to be" a caregiver of a child, parent, spouse,
domestic partner, in-law, sibling, grandparent, or grandchild.
Basically, this definition covers all adult employees as any
person may ultimately be a caregiver or perceived to be a
caregiver. Just by simply mentioning to a supervisor that you
live with a grandparent or would like to someday have kids could
trigger this classification on the basis that you "will be" or
are "perceived" as a caregiver. Opponents contend that such a
broad application of a protected classification will hamper an
employers' ability to manage the workplace, 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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Opponents also argue that California already protects employees
from discrimination on the basis of sex and pregnancy.
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.
Extending employment protections to individuals simply on the
basis that they: (1) care for a family member; (2) may someday
care for a family member; or (3) are perceived as caring for a
family member, will burden employers and subject them to costly
litigation. Opponents not that there were approximately 19,500
discrimination claims filed in 2010 with the Department of Fair
Employment and Housing under FEHA, which was 1,000 complaints
more than in 2009. Adding this new expansive classification to
FEHA will only cause such cases to dramatically increase,
placing California employers at a significant disadvantage.
PRIOR LEGISLATION:
This bill is 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
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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."
This bill, upon passage out of Labor Committee, is
double-referred to Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Association of University Women
American Federation of State, County and Municipal Employees
California Employment Lawyers Association (co-sponsor)
California Labor Federation, AFL-CIO
California Nurses Association
California Professional Firefighters
California School Employees Association
Council of California Goodwill Industries
Equal Rights Advocates (co-sponsor)
Laborers Locals 777 & 792
National Association of Social Workers, California Chapter
Opposition
Associated General Contractors
Building Owners and Managers Association of California
California Association of Bed & Breakfast Inns
California Association of Joint Powers Authorities
California Bankers Association
California Business Properties Association
California Chamber of Commerce
California Chapter of the American Fence Association
California Farm Bureau Federation
California Fence Contractors' Association
California Grocers Association
California Hotel & Lodging Association
California Independent Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Retailers Association
Civil Justice Association of California
Engineering Contractors' Association
Flasher Barricade Association
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International Council of Shopping Centers
Marin Builders Association
NAIOP of California, the Commercial Real Estate Development
Association
National Federation of Independent Business
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091