“Familial Status” (Whatever That Means) may Become FEHA’s Newest Protected Category Under SB 404

California employers are well aware that legislators and regulators, both on the state and federal level, have been burning the candle at both ends to generate laws, regulations, and administrative actions designed to hedge in and restrict their ability to chose and terminate their employees.

Correspondingly, it comes as no surprise to learn that the list of protective classes under California’s Fair Employment and Housing Act (“FEHA”) — which prohibits employment discrimination — is about to expand once again.

The FEHA already prohibits discrimination on the basis of race, religious creed, disability, gender, and age, among other things. Now, “familial status” may join that list, under the currently pending SB 404 (D-Jackson).

What does “familial status” mean?  SB 404 provides the following definition:

"In connection with unlawful employment practices, “familial status” means an individual who provides medical or supervisory care to a family member. For purposes of this subdivision, “family member” means any of the following:

(1) A child, as defined in Section 3302 of the Unemployment Insurance Code.

(2) A parent, as defined in Section 3302 of the Unemployment Insurance Code.

(3) A spouse, which means the partner of a lawful marriage.

(4) A domestic partner, as defined in Section 297 of the Family Code.

(5) A parent-in-law, which means the parent of a spouse or domestic partner.

Under section 3302 of the Unemployment Insurance Code “Child” means “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.”

A parent means “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 domestic partner means “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring,” and who complies with various other requirements for domestic partnership listed under Family Code 297.

So much for definitions. The most important words in this provision remain entirely undefined.  What does it mean to “provide medical … care”? Am I providing medical care if I give my child Advil once every few months?  And what is “supervisory care”? How often does such “care” have to be provided for me to qualify?  Does going to parent-teacher conferences for a teenaged child count as exercising “supervisory care”? If an employer terminates an employee for leaving an important deadline unmet to attend such a conference, has he or she violated the FEHA?  Who knows?

Opponents to the bill have noted that this very ambiguity threatens to swallow virtually all employees within the category of “familial status.” As they argue, the term “familial status” can  potentially apply to “anyone who is perceived to provide familial care or associated with someone who provides familial care. Such broad application of a protected classification will essentially encompass almost all employees in the workforce” and as a result, “any adverse employment action the employer takes against an employee could potentially be challenged as discriminatory on the basis of ‘familial status.’”

They have a point. Unless something is done to clear up the ambiguous language in this bill, employment litigation in California, already at a very high level, will only increase.

Watch this site for further developments in the bill. And meanwhile, employers should brace themselves for the possible repercussions if, as is likely, this bill becomes a law.

Please contact the author if you have any further questions regarding SB 404 or the FEHA.

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