‘Job Killer’ Bill Expanding Discrimination Litigation to Face Senate Committee

(March 27, 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 will be considered by the Senate Judiciary Committee on April 2.

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, or associated with an individual that provides “medical or supervisory” care to a family member.

This bill is similar to AB 1999 (Brownley; D-Santa Monica) from 2012, which was held on the Senate Appropriations Suspense File.

‘Familial Status’

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

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 an employer’s ability to manage its business, as any adverse employment action the employer takes against an employee could potentially be challenged as discriminatory on the basis of “familial status.”

Burdens Businesses

The burden that SB 404 creates will have an impact on small businesses because FEHA applies to any employer with five or more employees. Accordingly, SB 404 will subject these small businesses to potentially 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.

In addition, California also requires “kin care,” mandating that 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 no reason to include under California law the broad protected classification SB 404 proposes, other than to increase litigation opportunities.

Costly Litigation

Approximately 19,500 discrimination claims citing FEHA were filed in 2010 with the state Department of Fair Employment and Housing, 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 increase dramatically, thereby burdening the state agency as well as California employers with costly litigation.

Action Needed

SB 404 will be considered by Senate Judiciary on April 2. Contact your senator and committee members and ask them to oppose SB 404.

2013 Job Killers

The CalChamber will continue to add legislation to the “job killer” list throughout the year as bills are amended or new language is introduced.