BILL ANALYSIS
SB 836
Page 1
SENATE THIRD READING
SB 836 (Kuehl)
As Amended April 12, 2007
Majority vote
SENATE VOTE :25-14
LABOR AND EMPLOYMENT 6-2 JUDICIARY 7-1
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|Ayes:|Swanson, DeSaulnier, |Ayes:|Jones, Evans, Feuer, |
| |Fuentes, Laird, Leno, | |Krekorian, Laird, Levine, |
| |Ruskin | |Lieber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Strickland, Gaines |Nays:|Tran |
| | | | |
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APPROPRIATIONS 12-5
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|Ayes:|Leno, Caballero, Davis, |
| |DeSaulnier, Huffman, |
| |Karnette, Krekorian, |
| |Lieu, Ma, Nava, Solorio, |
| |De Leon |
| | |
|-----+--------------------------|
|Nays:|Walters, Emmerson, La |
| |Malfa, Nakanishi, Sharon |
| |Runner |
| | |
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SUMMARY : Adds "familial status" to the list of characteristics
(i.e., race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital
status, sex (including gender), age, or sexual orientation) that
are prohibited bases of discrimination under the employment
provisions of the Fair Employment and Housing Act (FEHA).
Specifically, this bill :
1)Expands the scope of prohibited bases of discrimination under
employment provisions of FEHA to include "familial status",
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defined as being an individual who is or who will be caring for
or supporting a family member.
2)Defines "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.
3)Defines "family member" as any of the following: a child, a
parent, a spouse, a domestic partner, a parent-in-law, a
sibling, a grandparent, or a grandchild.
EXISTING LAW :
1)Provides, under FEHA and the Unruh Civil Rights Act, protections
against discrimination in employment, housing, public
accommodation and services provided by business establishments
on the basis of specified personal characteristics such as sex
(including gender), race, color, national origin, religion,
sexual orientation, and disability. Over time, these bases have
been amended to include other characteristics to reflect the
state's policies against discrimination in all forms.
2)Prohibits discrimination based on "familial status" under the
housing provisions of FEHA. Under the Government Code Section
12955.2, "familial status" is defined as one or more individuals
under 18 years of age who reside with a parent, with another
person with care and legal custody of that individual (including
foster parents) or with a designee of that parent or other
person with legal custody. Familial status also includes a
pregnant woman or a person who is in the process of adopting or
otherwise securing legal custody of any individual under 18
years of age.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, the Department of Fair Employment and Housing, which is
responsible for enforcing provisions of FEHA, estimates that it
would need $740,000 for eight staff to handle the increased volume
of complaints resulting from this bill.
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. This definition is consistent with that of
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Unemployment Insurance Code Section 3302.
In the past, 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. 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 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
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status" - rather than his "marital status."
Analysis Prepared by : Mike Sheen / L. & E. / (916) 319-2091
FN: 0002652