BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1999 (Brownley)
As Amended April 30, 2012
Hearing Date: June 26, 2012
Fiscal: Yes
Urgency: No
TW
SUBJECT
Employment: Family Caregiver Status Protection
DESCRIPTION
This bill would add "family caregiver status" to the list of
characteristics (i.e., race, religious creed, color, national
origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age or sexual
orientation) that are prohibited bases of discrimination under
the employment provisions of the Fair Employment and Housing
Act.
BACKGROUND
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, 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. Over time, these statutes
have been amended to include other characteristics such as
medical conditions, marital status, and sexual orientation.
Also over time, other statutes were amended to reflect the
state's public policy against discrimination in all forms.
One area that has experienced a significant increase in
litigation is "family responsibility discrimination" in
employment. FEHA does not directly prohibit discrimination
based on an employee's status as a family caregiver. However,
employees with family caregiving responsibilities who work full-
or part-time, job-share, use flextime, or follow some type of
(more)
AB 1999 (Brownley)
Page 2 of ?
modified compressed work schedule and were subjected to adverse
employment actions have litigated against their employers using
various federal statutes. For example, Title VII of the Civil
Rights Act of 1964, 42 U.S.C.S. Sec. 2000e, which prohibits
employment discrimination on the basis of sex, race, color,
religion and national origin, 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. That law has been of limited use in challenging
adverse employment actions arising from the need to care for or
rear a child once born. (See Piantanida v. Wyman Center, Inc.
(8th Cir. 1997) 116 F.3d 340, 342 (holding that claim of
discrimination based on plaintiff's status as a new parent is
not recognizable under the Pregnancy Discrimination Act, 42
U.S.C.S. Sec. 2000e(k)).) The Family and Medical Leave Act of
1993 (FMLA) (29 U.S.C.S. Sec. 2601 et seq.) and the Americans
with Disabilities Act of 1990 (ADA) (42 U.S.C.S. Sec. 12101 et
seq.) 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, the challenge has proven to be difficult and
complicated and, because the family caregiving responsibility is
not directly addressed by the statutes, the path has been
tortuous.
Despite the difficulty of launching a lawsuit against an
employer for discrimination based on family caregiving
responsibilities, where the federal statutes do not directly
provide protection, there has been a significant increase in
these cases. In fact, 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. (Stephanie Bornstein,
Robert J. Rathmell, Univ. of Cal. Hastings Center for Worklife
Law, Caregivers as a Protected Class?: The Growth of State and
Local Laws Prohibiting Family Responsibilities Discrimination
(Dec. 2009), p. 2.) 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 of these cases
can be very complicated, difficult, and expensive. And,
according to articles written for employers by human resource
journals, employers are increasingly confused about the scope of
AB 1999 (Brownley)
Page 3 of ?
their responsibility and exposure to liability for employment
policies or actions adversely affecting employees with family
caregiving responsibilities.
Prior attempts at providing family caregiver status protection
proved unsuccessful. SB 836 (Kuehl, 2007), which was similar to
this bill, would have added "familial status" to employment
anti-discrimination protections. SB 836 passed out of this
Committee on a 4-1 vote and was vetoed by Governor. AB 1001
(Skinner and Ma, 2009) also would have prohibited employment
discrimination based on familial status. AB 1001 died in the
Assembly Appropriations Committee.
Although FEHA prohibits discrimination on the basis of familial
status in housing (see Gov. Code Sec. 12955 et seq.), it does
not apply in the workplace. This bill, sponsored by the
California Employment Lawyers Association and Equal Rights
Advocates, would address the question of discrimination in the
workplace on the basis of familial status directly by including
"family caregiver status" on the list of characteristics that,
if used as the basis for an adverse employment action, is
prohibited discrimination under FEHA.
CHANGES TO EXISTING LAW
Existing law, 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.)
This bill would add "family caregiver status" to the list of
characteristics on which basis a person may not be discriminated
against in employment.
This bill would define "family caregiver status" in this context
to include "an individual who provides medical or supervisory
care to a family member."
This bill would define "family member" as a child, parent,
spouse, domestic partner, parent-in-law, sibling, grandparent,
or grandchild, as defined in various statutes.
This bill also would make technical and conforming changes to
various code sections.
AB 1999 (Brownley)
Page 4 of ?
COMMENT
1. Stated need for the bill
The author writes:
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 and some employers unclear as to what their
obligations are in this area.
Expressly prohibiting discrimination based on family
caregiving responsibilities would provide greater protection
to workers and clarity to employers. Further, AB 1999
reflects the needs of California's families of color, who
engage in high rates of care for elderly parents.
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 especially vulnerable to work/life
conflict. This bill would prevent employers from unfairly
using an individual's familial status (i.e. their status as a
caregiver for a family member) as a factor in employment
decisions.
2. Family caregiver status: defining a complex phrase
Currently, "familial status" is recognized in the housing
provisions of Fair Employment and Housing Act (FEHA) as a
characteristic of a protected class. Familial status, under
Section 12955.2 of the Government Code means an under-age person
(18 or younger) who resides with a parent or another person with
custody of the under-age person or with the designee of the
parent or person with custody by written consent. The "familial
status" protections provided by FEHA also apply to a pregnant
individual who is under 18, or who is in the process of securing
legal custody of a minor, or who is in the process of being
given care and custody of a minor by a state or county agency.
AB 1999 (Brownley)
Page 5 of ?
In the context of the workplace, this bill would define "family
caregiver status" to mean "an individual who provides medical or
supervisory care to a family member," and "family member" would
be defined as:
"a child as defined in Section 3302 of the Unemployment
Insurance Code."
In turn, the Unemployment Insurance Code defines "a child" as
"a biological, adopted, or foster son or daughter, a stepson
or stepdaughter, a legal ward, a son or daughter of a domestic
partner, or the person to whom the employee stands in loco
parentis."
The definition is taken from that section of the Paid Family
Leave provisions of the Unemployment Insurance Code. These
provisions allow the payment of "wage replacement benefits"
under the state's temporary family disability insurance for a
period of six weeks to workers who take time off work to care
for a seriously ill child, parent, spouse, domestic partner or
to bond with a minor child within one year of birth or
placement for foster care or adoption.
Under this bill, an aunt who has taken over the care of a
niece or nephew, but who has not taken steps to be appointed
the legal guardian of the child, could be protected from
discrimination if she takes off work to take care of this
child and returns to work later to find her employment
terminated for no other reason than that she had taken leave
to fulfill her familial caregiving responsibilities, when
other employees were able to take leave for other purposes.
The aunt in this case would be an employee who is a "person
who stands in loco parentis" to the child. The burden of
proof generally used for all other employment discrimination
cases would apply to these types of cases. (See Comment 3.)
"a parent as defined in Section 3302 of the Unemployment
Insurance Code."
Thus, "a parent" would mean "a biological, foster, or adoptive
parent, a stepparent, a legal guardian, or other person who
stood in loco parentis to the employee when the employee was a
child."
"a spouse, which means the partner to a lawful marriage"
This was also taken from Unemployment Insurance Code Section
3302. There is no definition of "spouse" in the Family Code.
AB 1999 (Brownley)
Page 6 of ?
"a domestic partner as defined in Section 297 of the Family
Code"
Family Code Section 297 requires registration of qualified
partners with the Secretary of State.
"a parent-in-law which means the parent of a spouse or
domestic partner"
"a sibling as defined in paragraph (c) of Section 362.1 of the
Welfare and Institutions Code."
Thus, "a sibling" is a child related to another person by
blood, adoption, or affinity through a common legal or
biological parent.
"a grandparent"
"a grandchild"
By including "grandparent" and "grandchild" in the definition
of "family member," this bill would sidestep the need to show
that an employee is a grandparent who stands in loco parentis
to a child or that the employee's grandparent stood in loco
parentis to the employee when the employee was a child.
This bill would prohibit family caregiver status discrimination
for an individual providing "medical or supervisory care," which
would encompass many of the fact patterns of cases that have
been brought as "family caregiving responsibility" cases under
the five federal laws mentioned earlier. For example:
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, but the court also stated
that discrimination based on familial status was 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)
Cal.App.Unpub. LEXIS 3560.)
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.
AB 1999 (Brownley)
Page 7 of ?
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
Family and Medical Leave Act of 1993. 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 (9th Cir. 2002) 282 F.3d 1078.)
The court upheld a district court's finding of discrimination
in a case involving a pregnant woman who was not hired as a
result of her potential employer's fear that she would take
family leave. (Wagner v. Dillard Dept. Stores (4th Cir. 2001)
17 Fed. Appx. 141.)
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
(4th Cir. 2001) 272 F.3d 625.)
3. Advantages of a FEHA action vs. action based on federal
statutes
As discussed above, discrimination cases have been brought by
employees using existing federal statutes, 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. (See Title VII of the Civil Rights Act of 1964
(42 U.S.C.S. Sec. 2000e); the Pregnancy Discrimination Act (42
U.S.C.S. Sec. 2000e(k)); the Family and Medical Leave Act of
1993 (29 U.S.C.S. Sec. 2601 et seq.); the Americans with
Disabilities Act of 1990 (42 U.S.C.S. Sec. 12101 et seq.); and
the Equal Pay Act of 1963 (29 U.S.C.S. Sec. 206).) Instead,
these employees have had to try to fit their circumstances into
narrow definitions in the statutes, or to ask the courts to
apply decisional law in other jurisdictions to their case, to be
able to fashion some remedy. While some of the cases were
successful, many have not been as successful because of the
difficulty of fitting facts to a statute not designed for that
type of protection.
This bill would address these difficulties by creating a direct
prohibition against discrimination on the basis of familial
status under the Fair Employment and Housing Act.
AB 1999 (Brownley)
Page 8 of ?
Attorneys have relied on Title VII of the Civil Rights Act of
1964 to challenge employers' unfair treatment of family
caregivers in the workplace. Title VII covers all public and
private employers with 15 or more employees, and prohibits
employment discrimination based on race, color, religion, sex or
national origin, and applies to all aspects of the employment
relationship, including hiring, compensation, training,
benefits, working conditions, discipline, promotion and
termination.
However, California's antidiscrimination statutes under FEHA,
while providing more protection than even Title VII, also
provides for a longer statute of limitations for filing a
complaint and a longer period of time for filing a complaint in
court after receipt of a right to sue letter. (Gov. Code Sec.
12965 et seq.)
The addition of familial status as a new basis for the
prohibition against discrimination will probably result in more
workers providing familial caregiving because their jobs would
no longer be jeopardized solely due to this commitment to
family. It should be noted that an employee who brings a
challenge to an employer's policy that results in an adverse
employment action will have to prove his or her case in the same
manner as other protected classes by showing disparate
treatment, hostile work environment, constructive discharge,
retaliation, and a disparate impact, among others. Further, the
current burden of proof, and the shifting of the burden as a
case moves through the process, will apply.
4. Other state statutes providing family caregiving status
protection
The University of California-Hastings Center for Worklife Law
issued a study (Study) on laws prohibiting family caregiver
discrimination, which identified "63 local laws in 22 states
that go beyond state and federal law to expressly prohibit
discrimination at work against those who are also caregivers at
home." (Stephanie Bornstein, Robert J. Rathmell, Univ. of Cal.
Hastings Center for Worklife Law, Caregivers as a Protected
Class?: The Growth of State and Local Laws Prohibiting Family
Responsibilities Discrimination (Dec. 2009), p. 1.)
In particular, the Study notes several states that provide
various levels of family caregiving status protections as
AB 1999 (Brownley)
Page 9 of ?
follows:
Alaska's state employment antidiscrimination law includes
"parenthood" as a protected classification in order to prevent
discrimination in employment because of parenthood. (See
Alaska Stat. Sec. 18.80.220(a).)
The District of Columbia, in its Human Rights Act, includes
the term "family responsibilities" as a protected
classification in its employment antidiscrimination 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." (D.C. Code Ann. Secs. 2-1401.01, 2-14101.02,
1-2502(12).)
Connecticut's employment antidiscrimination 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. (Conn. Gen. Stat. Sec. 46a-60(a)(9)). 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.
New Jersey has enacted a regulation, which accompany the
antidiscrimination statutes, that expressly prohibit state
(but not private) employers from discriminating against their
employees based on familial status. (N.J. Admin. Code Sec.
4A:7-3.1(a).) The regulation prohibits not only
discriminatory acts and harassment based on familial status,
but also retaliation for participation in the complaint
process. (N.J. Admin. Code Sec. 4A:7-3.1(h).)
In addition to state laws, the Equal Employment Opportunity
Commission released a guideline regarding unlawful disparate
treatment for family caregivers under federal laws. The
guideline notes that "�a]lthough the federal EEO �Equal
Employment Opportunity] laws do not prohibit discrimination
against caregivers per se, there are circumstances in which
discrimination against caregivers might constitute unlawful
disparate treatment." (U.S. Equal Empl. Opp. Comm., Enforcement
Guidance: Unlawful Disparate Treatment of Workers with
Caregiving Responsibilities (May 23, 2007) �as of June 19,
AB 1999 (Brownley)
Page 10 of ?
2012].) This bill would provide clear statutory guidance to
California employers on family caregiver discrimination rather
than requiring employers to sort through various federal laws,
guidelines, and state regulations.
5. Opposition concerns
A coalition of opponents to this bill raises various concerns to
creating an additional characteristic under FEHA that would have
anti-discrimination protection. First, the coalition argues
that this bill would be a "job killer" because expanding FEHA
protections for "family caregivers" will hamper California
employers' ability to conduct business and unfairly subject them
to costly litigation. Second, the coalition argues that the
term "medical care" in this bill 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." Third, the coalition argues that the term
"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 are
'supervising' the care the family member receives." (Emphasis
in original.)
The opposition appears to confuse protection from discrimination
for having family caregiving responsibilities, as provided under
this bill, with accommodation for family caregiving
responsibilities. Staff notes that this bill seeks to prevent
an employer from making an adverse employment decision against
an employee who has family caregiving responsibilities unrelated
to the employee's work. The First Circuit Court of Appeals
discussed discrimination when an employer takes an adverse
action against a female employee based on the assumption that,
because she is a woman, she will neglect her work
responsibilities in favor of her presumed childcare
responsibilities. The court noted that "�i]t is undoubtedly
true that if the work performance of a woman (or a man, for that
matter) actually suffers due to childcare responsibilities (or
due to any other personal obligation or interest), an employer
is free to respond accordingly, at least without incurring
liability under Title VII. However, an employer is not free to
assume that a woman, because she is a woman, will necessarily be
a poor worker because of family responsibilities." (Chadwick v.
Wellpoint, Inc., et al. (2009) 561 F.3d 38, 45.) Because Title
VII does not explicitly prohibit family caregiver
AB 1999 (Brownley)
Page 11 of ?
discrimination, the Chadwick court based their holding on sex
discrimination. From a policy standpoint, an employer should
not be free to assume that any employee, male or female, will be
a poor worker because of family responsibilities. Accordingly,
this bill would codify the Chadwick court's common-sense
reasoning.
Additionally, CalChamber raises the concern that recent
amendments striking "who is, who will be, or who is perceived to
be" a caregiver did not include removal of the term "familial
caregiving status" from inclusion in the provision prohibiting
discrimination on a perceived characteristic. Notably,
CalChamber argues that "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'."
Staff notes that the intent of this bill is to prohibit an
employer's assumptions regarding an employee who has family
caregiving responsibilities. This bill contains a clear
definition of "family caregiver status," which an employee would
have to show applies to the employee, and the employee would
then have to prove that, based on the employee qualifying as a
family caregiver, the employer took an adverse action against
the employee. Using CalChamber's argument, an employee who
tells an employer that he or she plans to get married at some
point in the future would automatically implicate a
discrimination claim based upon the employee's prospective
marital status. However, under existing law, the employee has
to show the employee qualifies under the definition of marital
status, and the employee then has to prove that the employer
based an adverse action against the employee upon the perception
of the employee's marital status. In either case, familial
caregiving status or marital status, the employee would have the
burden to prove his or her discrimination case, based upon the
definitions of these characteristics. The inclusion of
"familial caregiving status" in the list of characteristics upon
which an employer may not discriminate based upon the employer's
perception of the employee's status conforms with the intent of
AB 1999 (Brownley)
Page 12 of ?
the bill: to prohibit the employer's assumption that the
employee will not desire or be able to fully apply himself or
herself to the requirements of the job and subsequently take an
adverse action against the employee based on that assumption.
6. Reverse discrimination against employees who do not have
family caregiving status
This bill would provide discrimination protection for
individuals who have family caregiving responsibilities in order
to combat assumptions by an employer that the employee is not
willing or able to do a job because of familial caregiving
responsibilities. However, there is no explicit prohibition
that provides protection from adverse employment decisions
against an employee who does not have family caregiving status.
In practice, reverse caregiving discrimination could occur when
an individual who does not have family caregiving
responsibilities is chosen year after year to work on all
holidays so that other employees who do have caregiving
responsibilities are able to be with their families.
Additionally, the individual who does not have caregiving
responsibilities could be passed over for promotion in favor of
the employee who has caregiving responsibilities because the
employer believes the caregiving employee needs more money to
support such responsibilities. Although this bill does not
explicitly prohibit reverse discrimination based on familial
caregiving responsibilities, it implicitly implies that an
employer's decisions regarding each employee will not be based
upon familial caregiving status, which would include not
providing better schedules, wages or salaries, or benefits to an
employee on the basis of the employee being a family caregiver.
7. Governor Schwarzenegger's veto of SB 836
This bill is substantially similar to the enrolled version of SB
836 (Kuehl, 2007). In vetoing SB 836 Governor Schwarzenegger
stated:
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.
AB 1999 (Brownley)
Page 13 of ?
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.
Support : 9 to 5 National Association of Working Women; American
Association of University Women; American Federation of State,
County and Municipal Employees; California Employment Lawyers
Association; 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' Employment Rights Clinic of
Golden Gate University 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; 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;
Fullerton Chamber of Commerce; International Council of Shopping
Centers; Marin Builders Association; NAIOP of California, the
Commercial Real Estate Development Association; National
Federation of Independent Business; Plumbing-Heating-Cooling
Contractors Association of California; Southwest California
Legislative Council; Western Electrical Contractors Association,
Inc.
HISTORY
Source : California Employment Lawyers Association; Equal Rights
AB 1999 (Brownley)
Page 14 of ?
Advocates
Related Pending Legislation : None Known
Prior Legislation :
AB 1001 (Skinner, 2009) See Background.
SB 836 (Kuehl, 2007) See Background.
Prior Vote :
Assembly Floor (Ayes 49, Noes 26)
Assembly Committee on Appropriations (Ayes 12, Noes 5)
Assembly Committee on Judiciary (Ayes 6, Noes 3)
Assembly Committee on Labor and Employment (Ayes 5, Noes 2)
**************