BILL ANALYSIS �
AB 1999
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1999 (Brownley) - As Introduced: February 23, 2012
As Proposed to be Amended
SUBJECT : EMPLOYMENT DISCRIMINATION: FAMILY CAREGIVERS
KEY ISSUE : SHOULD FAMILY CAREGIVERS BE PROTECTED AGAINST JOB
DISCRIMINATION?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This measure seeks to protect family caregivers who work outside
of the home. It would prohibit family caregiving status as a
basis of discrimination under the Fair Employment and Housing
Act. 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. The bill is stridently opposed by business
interests who note that it will hamper the ability of employers
to manage their workplaces. Prior to the proposed amendments,
which substantially narrow the focus of the bill, these
opponents argued that the bill's definition of the protected
class was so broad as to cover virtually every employee. The
author's proposed amendments address that concern but may
nevertheless not eliminate the opposition to the extent it is
based on the possibility of any new legal responsibility for
discriminating against employees who provide care for family
members.
SUMMARY : Adds "family caregiver status" to the protected
categories of the employment provisions of the Fair Employment
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and Housing Act (FEHA). Specifically, this bill :
1)Prohibits discrimination under employment provisions of FEHA
on the basis of "family caregiver status."
2)Provides that "family caregiver 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, 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 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. (Government Code section 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.
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
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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 reason for the bill as
follows:
The bill's purpose is to eliminate workplace discrimination
against persons with family responsibilities. Often
employers offer all kinds of accommodations to employees
for a wide range of reasons, but treat workers with family
responsibilities very rigidly. Often this is driven by the
stereotype that a good worker is someone who is always
available to his employer, and has someone else caring for
children, elders and ill family members.
Current laws do not give workers caring for elders much
protection at all when they are treated unfairly due to
family responsibilities: the only protection offered is
under the family and medical leave laws, which does not
cover 40% of the workforce, and offers no protections in
situations that do not involve leave - e.g., where an
employee caring for an elder is hyper-scrutinized due to a
belief that employees with family caregiving
responsibilities will try to "sneak off" or are more likely
than other workers to make up false excuses for needing
leave.
Current law also often offers little or no protection for
fathers: in one California case, a single father who was a
firefighter who was persistently denied promotions when he
swapped shifts to care for his sons, despite the fact that
other firefighters were allowed to swap shifts for a wide
range of reasons, including golf games. Current law also
often makes it difficult for mothers to obtain relief when
they are subject to discrimination; they have to provide
evidence that links the unfair treatment to gender
discrimination, which is sometimes difficult to prove.
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This bill would provide workers the additional protections
when they are fully able to do their jobs so long as they
are treated the same as others employees without family
responsibilities. The bill does not provide for leave;
just protection from discrimination.
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
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
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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.
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 statues. 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 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
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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."
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
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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
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
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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).)
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
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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"
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 bill is 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. This bill is narrower in that it is
limited to family caregiver status, which is defined to mean an
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individual who provides medical or supervisory support or
assistance to a family member.
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
measure was vetoed by Governor Schwarzenegger.
ARGUMENTS IN OPPOSITION : Prior to the proposed amendments, a
coalition of business interests lead by the California Chamber
of Commerce submitted the following statement in opposition to
the bill:
AB 1999 has been labeled as a job killer, as it
significantly seeks to expand the protections under the
Fair Employment and Housing Act (FEHA), which will hamper
California employers' ability to conduct business and
unfairly subject them to costly litigation.
AB 1999 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. Such a broad application of a protected
classification will hamper an employer's 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."
California already protects employees from discrimination
on the basis of sex and pregnancy. Similarly, California
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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. 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.
Author's Proposed Limiting and Clarifying Amendments. To
address opposition concerns and to better capture the intent of
the measure, the author proposes the following productive
amendments:
(g) (1) In connection with unlawful employment practices,
16 "familial status" includes being "family caregiver status"
means an individual who provides medical or supervisory care to
a family member. is, who will
17 be, or who is perceived to be, a family caregiver . For
purposes of
18 this paragraph, "family member " means any of the
following:
19 (A) A child as defined in Section 3302 of the
Unemployment
20 Insurance Code.
21 (B) A parent as defined in Section 3302 of the
Unemployment
22 Insurance Code.
23 (C) A spouse, which means the partner of a lawful
marriage.
24 (D) A domestic partner as defined in Section 297 of
the Family
25 Code.
26 (E) A parent-in-law, which means the parent of a
spouse or
27 domestic partner.
28 (F) A sibling as defined in paragraph (c) of Section
362.1 of
29 the Welfare and Institutions Code.
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30 (G) A grandparent.
31 (H) A grandchild.
32 (2) In connection with unlawful housing practices,
"familial
33 status" has the same meaning as defined in Section
12955.2.
34 (g)
REGISTERED SUPPORT / OPPOSITION :
Support
California Employment Lawyers Association (co-sponsor)
Equal Rights Advocates (co-sponsor)
9 to 5 National Association of Working Women
American Association of University Women
American Federation of State, County and Municipal Employees
California Labor Federation, AFL-CIO
California Nurses Association
California Professional Firefighters
California School Employees Association
Council of California Goodwill Industries
Family Caregiver Alliance
Labor Project for Working Families
Laborers Locals 777 & 792
Legal Aid Society - Employment Law Center
Long Beach Coalition for Good Jobs and a Healthy Community
Mujeres Unidas y Activas
National Association of Social Workers, California Chapter
National Center for Lesbian Rights
Women's Employment Rights Clinic of Golden Gate U. School of Law
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
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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
International Council of Shopping Centers
Marin Builders Association
NAIOP of California, the Commercial Real Estate Development
Association
National Federation of Independent Business
Southwest California Legislative Council
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334