(August 15, 2013) A California Chamber of Commerce-opposed “job killer” bill that hampers California employers’ ability to conduct business and unfairly subjects them to costly litigation, was held on the Assembly Appropriations Committee suspense file yesterday, pending a review of the bill’s fiscal impacts.

SB 404 (Jackson; D-Santa Barbara) makes it virtually impossible for employers to manage their employees and exposes them to a higher risk of litigation by expanding the Fair Employment and Housing Act (FEHA) to include a protected classification for any person who is, perceived to be, or associated with an individual who provides medical or supervisory care to a listed family member.

SB 404 proposes to include “familial status” as a protected classification under the FEHA to prevent discrimination on such basis. The term “familial status” is broadly defined as:

1. any individual who provides “medical or supervisory care” to a child, parent, spouse, or domestic partner;
2. any employee who is “perceived” as someone who provides medical or supervisory care to a child, parent, spouse, domestic partner, or in-law; or
3. any person who is “associated” with a person who provides medical or supervisory care to a child, parent, spouse, domestic partner, or in-law.

The term “medical” care 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. Moreover, “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 “supervising” the care the family member receives.

Furthermore, SB 404 applies to anyone who is perceived to provide familial care or associated with someone who provides familial care. Such a broad application of a protected classification will essentially encompass almost all employees in the workforce and, therefore, will hamper employers’ ability to manage their business, as any adverse employment action an employer takes against an employee could potentially be challenged as discriminatory on the basis of “familial status.”

Burdens Small Businesses

This burden that SB 404 creates will have an impact on small businesses as well as large ones. The FEHA applies to any employer who has five employees or more. Accordingly, SB 404 will subject these small businesses to potential costly litigation based on the allegation that an employee who suffered an adverse employment action provided familial medical or supervisory care, was perceived as providing such care, or was associated with someone providing such care.

Employees Already Protected

California already protects employees from discrimination on the basis of sex, pregnancy, medical condition, mental disability, or physical disability. 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. Additionally, California requires “kin care” that mandates an employee be allowed to use at least half of any accrued sick leave to care for family members. These various leaves and protections are in addition to those provided by federal law. Given these existing protections, there is simply no basis to include the broad protected classification under California law as proposed by SB 404, other than to increase litigation opportunities.

Costly Litigation

Approximately 19,500 discrimination claims were filed in 2010 with the Department of Fair Employment and Housing under FEHA, which was 1,000 complaints more than in 2009. Notably, more than 4,000 of these complaints were dismissed due to lack of evidence of any violation. Adding this new expansive classification to FEHA will only cause such cases to dramatically increase, thereby burdening the state agency as well as California employers with costly litigation.

Action Needed

SB 404 may be considered by Assembly Appropriations at the committee’s next hearing and may be voted off the suspense file and sent to the full Assembly for a vote. August 30 is the last day for the committee to meet and send bills to the floor.

Contact your Assembly representatives and members of Assembly Appropriations and urge them to oppose SB 404.