BILL ANALYSIS Ó
AB 2707
Page 1
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 2707
(Ridley-Thomas) - As Amended April 11, 2016
SUBJECT: Stop Consumer Racial Profiling Act of 2016
SUMMARY: Prohibits "consumer racial profiling," defined as the
targeting of a person that results in differential treatment of
a consumer based on race or ethnicity, and gives the Department
of Fair Employment and Housing (DFEH) authority to receive
consumer complaints and investigate and prosecute violations.
Specifically, this bill:
1)Prohibits a business establishment from using "consumer racial
profiling" in its business.
2)Defines "consumer racial profiling" to mean 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.
3)Specifies that "consumer racial profiling" includes, but is
not limited to, refusal to serve, removal from the business
establishment premises, segregated seating, requiring
additional forms of identification, and surveillance practices
AB 2707
Page 2
based on race or ethnicity.
4)Gives DFEH 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
(CC) 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. (CC 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
discrimination or segregation on the ground of race, color,
religion, or national origin. (42 U.S.C. Section 2000a.)
AB 2707
Page 3
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to give consumers
harmed by racial profiling tactics a means of redress by
empowering DFEH to prosecute complaints. This measure is
sponsored by the Lawyers' Committee for Civil Rights.
2)Author's statement . According to the author's office, "Federal
and state public accommodation laws are often ill-equipped to
address consumer racial profiling. Courts often fail to
understand the subtle nature of modern discrimination and
interpret civil rights statutes narrowly requiring plaintiffs
to establish specific harms. However, no incident of consumer
racial profiling is harmless. The use of consumer racial
profiling negatively impacts the quality of life for African
Americans and other ethnic minorities. Furthermore, the
victims of consumer racial profiling feel as if they remain
second-class citizens, marginalized by the rest of society.
All consumers, regardless of race or ethnicity, should enjoy
fair and equal treatment in the marketplace."
3)Racial profiling still a problem . According to a survey of
workers at the high-end fashion retailer Zara's New York City
stores, black customers are seven times more likely to be
targeted as potential thieves than white customers. The
survey suggested that both race and ethnic discrimination
remain challenging problems, given that industry studies on
actual shop lifting trends in retail stores indicate no
differences by race or ethnicity. ("Stitched with Prejudice:
Zara USA's Corporate Culture of Favoritism," Center for
Popular Democracy; "Courting Customers: Assessing Consumer
AB 2707
Page 4
Racial Profiling and Other Marketplace Discrimination,"
Journal of Public Policy & Marketing)
According to the author, in California there have been
numerous reports of consumer racial profiling, including
targeting ethnic minority consumers as potential criminals,
unworthy of service, and being unable to afford high-end
merchandise available for purchase. The author notes these
incidents have impacted celebrity and working-class ethnic
minorities alike.
4)The Unruh Civil Rights Act of 1959 . Since the enactment of the
state Unruh Civil Rights Act of 1959 and the federal Civil
Rights Act of 1964, all people are legally entitled to equal
access to businesses and the right to service regardless of
race or ethnicity. The author contends that despite these
strong civil rights laws, discrimination in the marketplace
remains a significant problem.
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 several
enumerated characteristics, including race or color.
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. The Unruh Civil Rights
Act states, for example, that all persons are entitled,
regardless of race, to "full and equal accommodations,
advantages, facilities, privileges, or services" in all
business establishments. The author contends these words may
not cover specific activities, such as race-based surveillance
AB 2707
Page 5
of consumers who are shopping, since depending on whether or
not the consumer becomes aware or is treated differently
because of the surveillance, it may not result in a denial of
"full and equal accommodation, advantages, facilities,
privileges, or services" under current law.
According to the author and the bill's sponsor, Lawyers'
Committee for Civil Rights, the majority of the egregious
consumer racial profiling cases are settled out of court,
which limits our knowledge about the deficiencies that may
exist under current law. When a full trial is held in a case
and the appeals process is exhausted, then a court decision
can provide nuanced, binding interpretations of what the words
in a statute actually mean when applied to a specific
practice, such as racial profiling to surveil consumers who
are shopping.
5)The Stop Consumer Racial Profiling Act of 2016 . This bill
defines and prohibits "consumer racial profiling" as the
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 consumer
product or service offered to consumers.
The bill authorizes DFEH to receive, investigate, and
prosecute allegations of racial profiling, which would give
victims of consumer racial profiling a specific government
agency where they can report incidents of discrimination.
While existing law already gives DFEH express authority to
AB 2707
Page 6
enforce the Unruh Civil Rights Act, this bill expressly grants
DFEH authority to investigate and prosecute consumer racial
profiling. The author contends that it is important to give
DFEH this specific prosecutorial authority because of the
non-economic nature of the harm caused by consumer racial
profiling, which makes it less likely that a private attorney
would take such a case.
6)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."
The Black Women Organized for Political Action (BWOPA)
supports this bill 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."
Consumer Federation of California (CFC) states in support that
the bill would 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
AB 2707
Page 7
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."
7)Related legislation . AB 1684 (Stone) authorizes DFEH to
investigate and prosecute complaints of human trafficking and
to bring a civil action on behalf of a person harmed by human
trafficking and stipulates that damages awarded pursuant to a
civil action must be awarded to the person harmed, and that
any costs and attorney's fees awarded must be awarded to DFEH.
This bill is currently pending referral in the Senate Rules
Committee.
SB 1442 (Liu) reorganizes various statutes regarding
discrimination and removes the authority of DFEH and the
Business, Consumer Services, and Housing Agency to promulgate
regulations to prohibit discrimination. This bill is
currently pending in the Senate Judiciary Committee.
8)Double-referral . This bill was double-referred to the
Assembly Judiciary Committee where it passed 10-0 on April 5,
2016.
REGISTERED SUPPORT / OPPOSITION:
Support
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area (sponsor)
Black Women Organized for Political Action
AB 2707
Page 8
California State Conference of the National Association for the
Advancement of Colored People
Consumer Attorneys of California
Consumer Federation of California
Opposition
None on file.
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200