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Helping You Navigate Workplace Issues in California

Will California Take Steps to Stop “Familial Status” Discrimination?


Although laws prohibiting sex discrimination in employment have been on the books in California for decades, women still face an uphill battle in many workplaces to be free from discrimination. One reason for this is that while some employers may not harbor any bias against women in general, they may still feel that certain women are unsuited for employment due to the fact they have children. Such “familial status discrimination” is not technically illegal in California, however, a bill now before the state legislature may help to change that.

Assemblywoman Seeks to Ban Employers From Asking About Children

This past January, Assembly Member Autumn Burke of Los Angeles introduced Assembly Bill (AB) 1938. If adopted, AB 1938 would add language to the existing California Fair Employment and Housing Act (FEHA) to address familial discrimination during the hiring process. Although Burke’s legislation would not outright prohibit such discrimination, it would make it more difficult for employers to solicit information regarding a job applicant’s familial status.

According to “Elephant in the Valley,” a recent survey of more than 200 women working in and around Silicon Valley, more than 75 percent of respondents said they “were asked about family life, marital status and children in interviews.” AB 1938 cites this study as support for a formal legislative finding that “[w]omen with children are most likely to encounter familial status discrimination.” that the report estimates women are “79 percent less likely to be recommended” for a job due to familial status.

In this context, AB 1938 defines “familial status” as the fact that at least one minor child–i.e., a person under the age of 18–resides with a job applicant, who is that child’s parent, legal guardian, or custodian. This definition of familial status extends to female job applicants who are pregnant or in the process of adopting a child.

So what would AB 1938 actually prohibit? As noted above, the bill would not outright forbid employers from discriminating on the basis of familial status–although individual acts of discrimination may be covered under existing protected categories, such as sex, pregnancy, religion, or medical condition. Rather, AB 1938 adds familial status to the list of subjects that an employer cannot make “any non-job-related inquiry” about. The FEHA already forbids such inquiries with respect to existing protected categories.

To put in simple terms, if AB 1938 passes, a prospective employer cannot ask you if you have children during a job interview. You are free to volunteer such information “without prompting.” But the employer would not be allowed to bring up the subject.

As of this writing, AB 1938 remains a proposal. It has been referred to a California Assembly committee for further review, but as of March 17, 2018, no further action has been taken. As with all legislation, AB 1938 must be approved by both the Assembly and California Senate and signed into law by the governor before it would take effect.

Have You Been the Victim of Employment Discrimination?

In the meantime, if you have reason to believe that have you been a victim of discrimination based on familial status–or any other characteristic unrelated to your qualifications–you should contact an experienced California employment law attorney to discuss your concerns.




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* Cathleen Scott is licensed to practice in Florida only.

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