BILL ANALYSIS Ó
AB 2707
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Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2707
(Ridley-Thomas) - As Introduced February 19, 2016
SUBJECT: Stop Consumer Racial Profiling Act of 2016
KEY ISSUE: Should a business establishment be prohibited from
engaging in "consumer racial profiling," as defined?
SYNOPSIS
This bill, which would enact the Stop Commercial Racial
Profiling Act of 2016, is sponsored by the Lawyers' Committee on
Civil Rights of the San Francisco Bay Area. According to
reports provided to the Committee by author and sponsor,
"consumer racial profiling" - sometimes called "Shopping While
Black" - is a surprisingly pervasive problem in the retail
sector. For example, the Center for Popular Democracy cites
academic studies showing that African-American customers are
seven times more likely to be targeted by store clerks and
security personnel as potential shoplifters than are white
customers. In addition to race-based surveillance practices,
consumer racial profiling may also include other forms of
differential treatment of customers because of race or
ethnicity, including refusing service, offering less responsive
service or service of lesser quality, making race-based
AB 2707
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assumptions about a customer's ability to afford a product, or
requiring additional forms of identification. Existing law, the
Unruh Civil Rights Act, already provides that no person shall be
denied equal treatment or services in any business establishment
on the basis of enumerated characteristics, including race or
color. An argument could be made, therefore, that much of the
retailer conduct that constitutes "consumer racial profiling" is
already a violation of the Unruh Civil Rights Act. However,
this bill will make it clear that all forms of racial profiling
violate the Unruh Civil Rights Act. Moreover, the bill
authorizes the Department of Fair Employment and Housing (DFEH)
to receive, investigate, and prosecute allegations of racial
profiling. Expressly granting this authority to DFEH is an
important component of the bill, as the often non-economic
nature of the harm caused by consumer racial profiling, the
sponsor contends, means that private attorneys are less likely
to take such cases. The bill is supported by civil rights and
consumer groups. There is no opposition to this measure.
SUMMARY: Prohibits "consumer racial profiling," as defined.
Specifically, this bill:
1)Prohibits a business establishment from using "consumer racial
profiling."
2)Defines "consumer racial profiling" to include the following:
a) Profiling or targeting of a person that results in
differential treatment based on his or her race or
ethnicity and that constitutes a denial or degradation in
the product or service offered to customers.
b) Refusal to serve, removal from the business
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establishment premises, segregated seating, requiring
additional forms of identification, race-based surveillance
practices, and similar race-based practices.
3)Gives the Department of Fair Employment and Housing the power
to receive, investigate, conciliate, mediate, and prosecute
complaints alleging a violation of this bill.
EXISTING LAW:
1)Provides, under the Unruh Civil Rights Act, that all persons
within this state are free and equal, and no matter what their
sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital
status, sexual orientation, citizenship, primary language, or
immigration status, are entitled to the full and equal
accommodations, advantages, facilities, or services of all
business establishments of every kind whatsoever. (Civil Code
Section 51.)
2)Provides that no business establishment of any kind whatsoever
shall discriminate against, boycott or blacklist, or refuse to
buy from, contract with, sell to, or trade with any person in
this state on account of sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, sexual orientation, citizenship,
primary language, or immigration status. (Civil Code Section
51.5 (a).)
3)Provides, under federal law, that all persons shall be
entitled to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and
accommodations of any place of public accommodation without
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discrimination or segregation on the ground of race, color,
religion, or national origin. (42 USC Section 2000a.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: As much as we sometimes like to think otherwise, we
have yet to obtain the "color blind" society that Justice Harlan
hoped for in his powerful dissent in Plessy v. Ferguson (1896),
the decision that bequeathed the infamous "separate but equal"
doctrine and put the U.S. Supreme Court's stamp of legitimacy of
Jim Crow segregation in the South, until the doctrine was
finally rejected nearly sixty years later in Brown v. Board of
Education (1954). One example of our seeming inability to be
truly "color blind" is seen in what a number of scholars and
commentators refer to as "consumer racial profiling" or
"Shopping While Black." That is, while business establishments
no longer hang "Whites Only" signs on their front doors, a
number of academic studies suggest that once people of color
walk inside those stores they are treated differently. For
example, the Center for Popular Democracy cites studies showing
that African-American customers are seven times more likely to
be targeted by store clerks and security personnel as potential
shoplifters than are white customers. In addition to race-based
surveillance practices, consumer racial profiling may include
other forms of differential treatment of customers of color,
including refusing service, offering service of lesser quality,
making race-based assumptions about a customer's ability to
afford a product, or requiring additional forms of
identification.
Existing law, the Unruh Civil Rights Act, already provides that
no person shall be denied equal treatment or services in "all
business establishments of any kind whatsoever" on the basis of
a several enumerated characteristics, including race or color.
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Therefore, some of the retailer conduct that constitutes
"consumer racial profiling" may already be a violation of the
Unruh Civil Rights Act. However, as with any general statute,
the full range of conduct that a particular word or clause might
encompass is not always clear. For example, the Unruh Civil
Rights Act states that all persons are entitled, regardless of
race, to "full and equal accommodations, advantages, facilities,
privileges, or services" in all business establishments. It
seems clear that consumer racial profiling that leads to
different levels of service, a removal from the facilities, or a
denial of full access to facilities would be prohibited by
language of the Unruh Act. However, whether these words in the
Unruh Act would cover race-based surveillance is more
questionable, since surveillance may not affect the "service"
provided or deny equal access to the facilities. If a court
were to reasonably conclude that, taken as a whole, the purpose
of the Unruh Act is to guarantee equal "treatment" by business
establishments, then engaging in race-based surveillance would
certainly seem to constitute unequal "treatment." But the word
"treatment" does not appear in the statute. In order to
eliminate potential ambiguities, AB 2707 will make it clear that
all forms of consumer racial profiling violate the Unruh Civil
Rights Act. In addition, the bill authorizes the Department of
Fair Employment and Housing (DFEH) to receive, investigate, and
prosecute allegations of racial profiling. Under existing law,
DFEH is given express authority to enforce a sequence of
statutes in and around the Unruh Civil Rights that guarantee
various civil and personal rights. This bill simply adds a new
section to this sequence of statutes and then references that
statute in the provisions of Government Code granting
investigative and enforcement powers to the DFEH. As noted by
the sponsors and supporters of this bill, expressly granting
this authority to DFEH is an important component of the bill, as
the non-economic nature of the harm caused by consumer racial
profiling makes it less likely that a private attorney would
take such a case.
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Consumer profiling goes beyond race and ethnicity. The
Committee takes note of the fact that other protected classes
also experience consumer profiling, based, for example, on age,
religion, or perceived LGBT status. For example, given the
amount of attention that certain candidates for the U.S.
Presidency devote to proclaiming the dangers of "radical Islamic
terrorism," it is not inconceivable that a person that wears a
turban, or other clothing suggesting devotion to Islam, might
face heightened surveillance from security personnel, or even
different treatment and service from sales staff, based on the
person's real or perceived religion. Age, too, can be a basis
for differential treatment. For example, according to some
reports teens have been asked to leave a backpack in the front
of the store whereas an adult carrying an equally large handbag
would not be asked to do so. Though the Committee has not asked
the author to make any changes to the bill at this time, the
author may consider expanding the bill to go beyond profiling on
the basis of "race and ethnicity," to include such things as
religion, age, or perceived sexual orientation or gender
identity. However, this bill responds not to potential or
hypothetical concerns, but to concrete data showing that race is
a considerable and troubling factor in how consumers are treated
by some retailers.
ARGUMENTS IN SUPPORT: According to the sponsor, the Lawyers'
Committee for Civil Rights of the San Francisco Bay Area (LCCR),
this measure will "prohibit a business establishment from using
consumer racial profiling and makes the Department of Fair
Employment and Housing (DFEH) responsible for the enforcement of
this act. AB 2707 would make it clear that all forms of
consumer racial profiling violate the Unruh Civil Rights Act.
It would also ensure that consumers have a designated state
entity to report incidents of racial profiling."
In addition for the reasons cited above, the Black Women
Organized for Political Action (BWOPA) supports this bill
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because "it will send a strong message to all of California's
retailers that all consumers, regardless of race or ethnicity,
are entitled to fair and equal treatment." BWOPA notes that
granting the power to the Department of Fair Employment and
Housing is important because the harm caused by consumer racial
profiling is not economic or quantifiable, which means that
private attorneys would be reluctant to take such cases.
Consumer Federation of California (CFC) supports the bill
because it will prohibit businesses from "profiling consumers in
a way that results in differential treatment based on race or
ethnicity and a denial or diminution in the product or service
offered to consumers." CFC further notes that customers of
color "are followed, stopped, searched, harassed, and confronted
with differential security measures almost entirely because of
their race ? and that no consumer should be made to feel
marginalized or persecuted."
REGISTERED SUPPORT / OPPOSITION:
Support
Lawyers' Committee for Civil Rights, San Francisco Bay Area
(sponsor)
Black Women Organized for Political Action
Consumer Attorneys of California
Consumer Federation of California
Opposition
AB 2707
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None on file
Analysis Prepared by:Amanda Hall and Thomas Clark/ JUD. / (916)
319-2334