Caregiver bill could spark lawsuits

April 5, 2013

By Dave Roberts

California business owners have plenty to worry about with the weak economy, high taxes, complex regulations and susceptibility to costly litigation. But rather than reducing those burdens in order to strengthen the state’s economy, Democratic politicians continue to pile on the obstacles to doing business in California.

On Tuesday the Senate Judiciary Committee approved a bill that would add family caregivers to the list of protected classes against job discrimination. While that sounds like a compassionate measure — who wouldn’t sympathize with someone discriminated against for taking care of their sick mother? — SB 404 is written so broadly that it essentially places every worker in this protected classification and thus able to sue for discrimination if something is not to their liking in the work place, according to the California Chamber of Commerce.

“We are concerned with the expansion of litigation that this bill will create,” Chamber policy advocate Jennifer Barrera told the committee. “‘Familial status’ as set forth in the bill is anyone who is, who is perceived to be, or who is associated with somebody who provides medical or supervisory care to a family member. That’s pretty broad. I don’t know who that doesn’t cover in the workplace. So the fact that we’re essentially protecting everyone in the workplace means that we’re not protecting anyone.

“All we’re doing is providing new avenues of litigation on which to file a claim…. Any time an employer tries to make a management decision in the workplace that’s adverse, it will automatically be susceptible to being challenged based on familial status. [Workers sill claim,] ‘That you must have demoted me or disciplined me not because of the objective basis that the employer states but because of my actual, perceived or associated familial status.’ Which makes it extremely difficult for an employer, especially a small employer, to manage their work place.”

Protected class

Sen. Mark Leno, D-San Francisco, argued that family caregivers deserve to be in a protected class against discrimination under the provisions of the Fair Employment and Housing Act, just as there are protections based on sex, race, color, national origin, religion, disability, marital status and sexual orientation.

“Real people are suffering in real ways,” Leno said. “And we are trying to find a way to end that and give them some protection so they can go about their lives.”

Barrera responded, “It would be a different perspective from business if only those cases that have merit are filed. But the problem is that from the business perspective we see a lot of frivolous litigation around these types of classifications just to challenge any decision we make.”

Leno was skeptical that frivolous lawsuits are filed by employees against employers, arguing that neither the employees nor their lawyers would benefit by doing so.

Barrera countered that businesses need to look out for the bottom line when deciding whether to contest lawsuits in court, whether or not they are frivolous.

“From our perspective, the plaintiff and attorney do benefit because in a lot of the cases — and I don’t have the specific percentage, I would say it’s in the 90 percent that cases settle — once a case is filed a lot of businesses see it as a business decision,” she said. “It’s not necessarily, ‘Hey, we were right, and I’m going to spend all of the money to prove that at trial.’ Because it’s costly. It’s more, ‘How can I resolve this at the cheapest cost, because I don’t want to impose a higher cost on my business.’ It’s more expensive to go all the way to trial and have your day in court to show that you were right than it is to just get rid of it and settle it immediately.”

‘The system works’

The bill’s author, Sen. Hannah-Beth Jackson, D-Santa Barbara, was not convinced.

“I would respectfully disagree that it creates frivolous lawsuits,” she said. “I don’t think there’s any documentation that demonstrates that. We do have a Fair Employment and Housing Agency that does take a look at these claims before they are allowed to go to litigation. And I believe the Chamber just indicated that many of them, probably at least half of them, are rejected. So the system works that we have today.

“But I don’t think this is a claim that has historic accuracy to it that we will then end up with frivolous lawsuits. We will end up with this clarity as to what the expectations are for both employers and employees. This measure doesn’t give any additional rights to family caregivers. It just gives them equal footing. In today’s world, we just see more and more people doing this kind of care. I think it’s about time after three cracks at it that we put this into law so that everybody knows what’s expected of them, and people who are caregivers are simply treated equally by their employers.”

This is actually the fourth crack at giving protected status to caregivers. SB 836 was vetoed by then-Gov. Schwarzenegger in 2007. He wrote in his veto message:

“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. 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.”

In 2009, AB 1001 died in the Assembly Appropriations Committee. And last year, AB 1999 was held on suspense in the Senate Appropriations Committee.

Schwarzenegger’s concern about the ambiguity of “familial status” was echoed at Tuesday’s hearing by Chris Mullahy, representing the California Grocers Association, which is also concerned about SB 404 leading to more lawsuits. He noted that the bill’s definition of protected classes, including familial status, includes the “perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.”

Mullahy observed, “The language is extremely broad, clearly would cover just about anyone.”

Confusing language

Sen. Mimi Walters, R-Irvine, noting that she’s one of the few committee members who is not a lawyer, said, “I’m confused about this language.” She asked Jackson to clarify what it means that there is a “perception” that someone has familial status.

Responded Jackson, a former district attorney:

“This is terminology that applies to all characteristics in the Fair Employment and Housing Act. We are modeling it and paralleling all the terminology within the Fair Employment and Housing Act. It’s not added. It’s what’s already in existence. It’s what’s used in all instances under fair employment and housing limitations and specifications. It’s not a new phrase.”

That non-explanation further confused Walters, who joked, “And that is why I’m not a lawyer,” as many laughed.

Barrera concluded her testimony by noting that there are already 17 laws on the books protecting employees against discrimination.

“Here in California, we have the California Family Rights Act,” she said. “It allows you to file litigation if you’re discriminated against for taking leave for a family member with a serious medical condition. We have the Kin Care law in California that requires an employer to allow an employee to take up to 50 percent of their sick leave to care for a family member. And you can file litigation if you’re discriminated on that basis. We have pregnancy disability leave. We have sex discrimination, gender discrimination, marital status discrimination laws. We also have the federal laws, the Equal Pay Act, the Title VII discrimination laws.

“So there’s a host of litigation avenues already available if discrimination like this occurs. The average verdict or settlement is $500,000 for these cases. Employers are already being sued when this type of discrimination occurs. So from the Chamber’s perspective, we’re very concerned with including a classification where protection already exists and just opening up new avenues of litigation that could seriously hamper an employer’s ability to grow and create jobs here in California if they are being struck with frivolous litigation under this bill.”

The committee passed SB 404 on a 5-2 vote with Walters and the other Republican, Sen. Joel Anderson, opposed. It has been referred to the Appropriations Committee.