BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 2707 (Ridley-Thomas)
          Version: April 26, 2016
          Hearing Date:  June 14, 2016 
          Fiscal: Yes
          Urgency: No
          RD   


                                        SUBJECT
                                           
                     Stop Consumer Racial Profiling Act of 2016

                                      DESCRIPTION  

          This bill would establish the Stop Consumer Racial Profiling Act  
          of 2016 to prohibit business establishments from using consumer  
          racial profiling, as specified.  Specifically, this bill would  
          define "consumer racial profiling" to mean 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 product or service offered to  
          customers, and would include, but not be limited to, refusal to  
          serve, removal from the business establishment premises,  
          segregated seating, requiring additional forms of  
          identification, and surveillance practices based on race or  
          ethnicity.   This bill would make this Act enforceable by the  
          Department of Fair Employment and Housing.

                                      BACKGROUND  

          California law reflects a strong public policy protecting  
          individuals against discrimination under numerous statutes,  
          covering a variety of contexts.  The Fair Employment and Housing  
          Act (FEHA) and the Unruh Civil Rights Act, for example, prohibit  
          discrimination in employment, housing, public accommodation, and  
          services provided by business establishments on the basis of  
          specified personal characteristics, such as sex, race, color,  
          religion, ancestry, national origin, age, disability, medical  
          condition, genetic information, marital status, or sexual  
          orientation.   (See Gov. Code Sec. 12920 et seq. for FEHA; Civ.  








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          Code Sec. 51 for Unruh Civil Rights Act).  Others still,  
          prohibit discrimination in public schools and in other  
          state-funded programs or activities.  (See Educational Equity at  
          Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at  
          Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et  
          seq.)

          This bill seeks to now enact the Stop Consumer Racial Profiling  
          Act to prohibit business establishments from discriminating on  
          the basis of race or ethnicity by way of specified consumer  
          racial profiling. 
                                CHANGES TO EXISTING LAW
           
           Existing law  provides for various civil actions based on  
          violations of a person's civil or personal rights, including the  
          Unruh Civil Rights Act, the Ralph Civil Rights Act, the Gender  
          Tax Repeal Act, the California Trafficking Victims Protection  
          Act, and the Bane Civil Rights Act, among others.  (Civ. Code  
          Sec. 51-51.9.)  
           
          Existing law  , the Unruh Civil Rights Act, provides that all  
          persons in California are free and equal, and regardless of a  
          person's sex, race, color, religion, ancestry, national origin,  
          disability, medical condition, genetic information, marital  
          status, sexual orientation, citizenship, primary language, or  
          immigration status, everyone is entitled to the full and equal  
          accommodations, advantages, facilities, privileges, or services  
          in all business establishments.  (Civ. Code Sec. 51.)

           Existing law  specifies the functions, powers, and duties of  
          DFEH, which include, among other things, to receive,  
          investigate, conciliate, mediate, and prosecute complaints  
          alleging practices made unlawful pursuant to FEHA and other  
          specified civil rights laws, including the Unruh Civil Rights  
          Act.  (Gov. Code Sec. 12930(f).)

           This bill  would enact the Stop Consumer Racial Profiling Act and  
          provide that no business establishment shall use consumer racial  
          profiling.  For these purposes, "consumer racial profiling"  
          shall mean 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 product or  
          service offered to customers. This bill would further specify  
          that "consumer racial profiling" includes, but is not limited  
          to, refusal to serve, removal from the business establishment  







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          premises, segregated seating, requiring additional forms of  
          identification, and surveillance practices based on race or  
          ethnicity.

           This bill  would amend FEHA to add within DFEH's functions,  
          powers and duties, the authority to receive, investigate,  
          conciliate, mediate, and prosecute complaints alleging practices  
          made unlawful pursuant to the Stop Consumer Racial Profiling  
          Act.  

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author: 

             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.

             Since the enactment of the federal Civil Rights Act of 1964  
             and the state Unruh Civil Rights Act of 1959, all people are  
             legally entitled to equal access to businesses and the right  
             to service regardless of race or ethnicity. Despite the  
             tremendous progress that our nation has made since the  
             passage of these civil rights laws, discrimination in the  
             marketplace remains a problem. 

             Across California there have been numerous reports of  
             consumer racial profiling, including targeting and regarding  
             ethnic minority consumers as potential criminals, unworthy of  
             service, and being unable to afford high-end merchandise  
             available for purchase. There have also been additional  
             reports of consumer racial profiling resulting in different  







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             standards being applied to minority consumers. These  
             incidents have impacted celebrity and working-class ethnic  
             minorities alike. 

             The Center for Popular Democracy released a report that found  
             Black customers are 7 times more likely to be targeted as  
             potential thieves than white customers. However, research on  
             shoplifting trends in retail stores found no differences by  
             race or ethnicity. The common misperception that African  
             American consumers engage in more criminal activity than  
             other consumers must be put to an end.

          Several proponents, including the California State Conference of  
          the National Association for the Advancement of Colored People  
          (NAACP) and the Consumer Attorneys of California, write in  
          support of the bill that "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.  This  
          bill would make it clear that all forms of consumer racial  
          profiling violate the Unruh Civil Rights Act and ensure that  
          consumers have a designated state entity to report incidents of  
          racial profiling. We believe that the Stop Consumer Racial  
          Profiling Act is necessary to send a strong message that all  
          consumers[,] regardless of race or ethnicity[,] are entitled to  
          fair and equal treatment."  

          2.    Bill would expressly prohibit consumer racial profiling by  
            business establishments  

          In support of this legislation establishing the Stop Consumer  
          Racial Profiling Act, the author and the sponsor, the Lawyers'  
          Committee for the Civil Rights of the San Francisco Bay Area,  
          cite several reports demonstrating that consumer racial  
          profiling (or "shopping while black," as some might call it)  
          persists under existing law.  For example, they write that a  
          report by the Center for Popular Democracy (CPD) found that  
          black customers are seven times more likely to be targeted as  
          potential thieves than white customers.  (CPD, Stitched with  
          Prejudice: Zara's USA's Corporate Culture of Favoritism (June  
          2015)  
           [as of May 28, 2016] p. 8.)  The author  
          writes that a second article by the Journal of Public Policy &  







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          Marketing supports that both race and ethnic discrimination  
          remain vexing problems in places of public accommodation and  
          retail establishments.  (Harris, Henderson, Williams, Courting  
          Customers: Assessing Consumer Racial Profiling and Other  
          Marketplace Discrimination, Journal of Public Policy & Marketing  
          (May 2005), Vol. 24, No. 1, pp. 163-171.)  Such discrimination  
          can go beyond the targeting of individuals of color for  
          potential shoplifting or theft, however, and may include other  
          forms of discriminatory treatment of customers on the basis of  
          race or ethnicity, such as refusal of service or poor quality  
          service, and so forth. 

          Indeed, "[i]n a retail environment, CRP [Consumer Racial  
          Profiling] can take many forms, ranging from overt or outright  
          confrontation to very subtle differences in treatment, often  
          manifested in forms of harassment. Outright confrontation  
          includes verbal attacks, such as shouting racial epithets, and  
          physical attacks, such as removing customers from the store.  
          Customer harassment includes slow or rude service, required  
          pre-payment, surveillance, searches of belongings, and neglect,  
          such as refusing to serve African-American customers.  (Harris,  
          Shopping While Black: Applying 42 U.S.C. § 1981 to Cases of  
          Consumer Racial Profiling, Boston College Third World Law  
          Journal (2003)  
           [as of May 28, 2016]), p.4.)

          The sponsor writes that the problem is "both pervasive and  
          debilitating to its victims.  The circumstances under which  
          victims are falsely accused and sometimes involuntarily detained  
          are extremely humiliating and/or intimidating.  Retailers are  
          reluctant to apologize to consumers for fear of subsequent legal  
          actions against them.  Some retailers even allow their loss  
          prevention personnel to use physical force to detain or  
          illegally search consumers."  As a matter of public policy, by  
          prohibiting such consumer racial profiling by business  
          establishments, this bill appears entirely consistent with  
          strong existing policies under state law prohibiting  
          discrimination by businesses.  While such activity is arguably  
          already unlawful under the Unruh Civil Rights Act (which  
          prohibits business establishments from discriminating on the  
          basis of not only race, but also sex, gender, age, nationality,  
          religion, ancestry, disability, sexual orientation, citizenship,  
          primary language, or immigration status, and more), the Consumer  
          Federation of California argues, in support of the bill, that  







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          "[i]ncidents of consumer racial profiling are unfortunately all  
          too common in California, in spite of our states civil rights  
          statutes.  Stereotyping and profiling in retail and restaurant  
          settings results in disparate, unfair, and unjust treatment.   
          Customers of color are followed, stopped, searched, harassed,  
          and confronted with differential security measures entirely  
          because of their race.  No consumer should be made to feel  
          marginalized or persecuted.  All Californians, regardless of  
          their race or ethnicity, should be treated fairly and equally in  
          the marketplace." 

          Staff notes, however, that in today's world, it is unfortunately  
          all too easy to envision a person being discriminated against or  
          profiled in similar fashions based on their sexual orientation,  
          gender (including transgender individuals), immigration status,  
          religion (e.g., when wearing a hijab or turban), or their  
          nationality or primary language (e.g. Arabic, Farsi,  
          Spanish)-all of which constitute protected bases under the Unruh  
          Civil Rights Act.  This bill would, however, focus only on  
          possible discrimination or profiling on the basis of race or  
          ethnicity.  Specifically, this bill would provide that consumer  
          racial profiling shall mean 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 product or service offered to customers.   
          This bill would further specify 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 based on race or ethnicity.

          Thus, to avoid any unintended consequences, the author may wish  
          to amend the bill to clarify that nothing in this bill suggests  
          that such activities are not otherwise unlawful under the Unruh  
          Civil Rights Act, or that similar acts of consumer profiling  
          would not be unlawful if based on other characteristics  
          protected under the Unruh Civil Rights Act. 

          3.    Bill authorizes the Department of Fair Employment and  
            Housing to enforce this act  

          Existing law, the Unruh Civil Rights Act, which also makes the  
          actions targeted by this bill unlawful, is enforceable by way of  
          private rights of action, by the Attorney General, and also by  
          the Department of Fair Employment and Housing (DFEH).  







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          Specifically, existing law provides that whoever denies, aids or  
          incites a denial, or makes any discrimination or distinction  
          contrary to specified civil and personal rights (including the  
          Unruh Civil Rights Act) is liable for each and every offense for  
          the actual damages, and any amount that may be determined by a  
          jury, or a court sitting without a jury, up to a maximum of  
          three times the amount of actual damage but in no case less than  
          four thousand dollars ($4,000), and any attorney's fees that may  
          be determined by the court in addition thereto.  (Civ. Code Sec.  
          52(a).) Existing law also expressly provides that whenever there  
          is reasonable cause to believe that any person or group of  
          persons is engaged in conduct of resistance to the full  
          enjoyment of any civil or personal rights, as specified, and  
          that conduct is of that nature and is intended to deny the full  
          exercise of those rights, the Attorney General, any district  
          attorney or city attorney, or any person aggrieved by the  
          conduct may bring a civil action in the appropriate court by  
          filing with it a complaint.  (Civ. Code Sec. 52(c).)   
          Separately, under the Fair Employment and Housing Act, the DFEH  
          has the authority to bring claims enforcing various civil and  
          personal rights statutes, as well as anti-discrimination laws.   
          These statutes also include the Unruh Civil Rights Act, among  
          others.  (See Gov. Code Sec. 12930(f).)  

          This bill would expressly authorize the DFEH to also enforce the  
          proposed Stop Consumer Racial Profiling Act. This would appear  
          to be consistent with existing law and other bills that are  
          attempting to designate the DFEH as the authority to investigate  
          and prosecute claims involving discrimination or violations of  
          state civil rights statutes on behalf of the state.  (See e.g.  
          SB 1442 (Liu, 2016), which is currently awaiting hearing in the  
          Assembly Judiciary Committee.)  Presumably, however, individuals  
          could continue to bring such claims under the Unruh Civil Rights  
          Act and Section 52 of the Civil Code (to the extent that such  
          activities are also unlawful under that act), as could the  
          Attorney General, who shares authority to enforce Unruh under  
          Section 52 of the Civil Code.  (See Civ. Code Sec. 52(a), (c).)   

           
           Black Women Organized for Political Action (BWOPA) writes in  
          support of the bill that not only is the "type of conduct  
          proscribed by AB 2707 is an all-too-common occurrence in our  
          American experience," but that the practice is in fact, "so  
          prevalent that it has become a fact of life for most  







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          African-Americans and Latino consumers, both male and female.  
          Racial profiling in retail establishments is as demeaning and  
          debilitating as racial profiling in housing and employment.  The  
          scars that it leaves on the victims, while invisible, are no  
          less real than the psychological harm caused by racism in other  
          areas of our community."  

          BWOPA also notes, however, that because "[o]ftentimes, the harm  
          that victims of racial profiling suffer is not economically  
          quantifiable [ . . . ] private attorneys are reluctant to take  
          on these types of cases in the absence of economic damages.  
          Nonetheless, the treatment of consumers falsely accused of  
          shoplifting may have a deep impact on them and leave emotional  
          scars that may never heal. The public 'branding' as a thief is  
          highly offensive to most consumers and generally causes them to  
          take their business elsewhere, having an unintended impact on  
          the retailers' bottom line."  Thus, by authorizing DFEH to also  
          investigate and bring actions based on such complaints in  
          violation of the proposed Stop Consumer Racial Profiling Act,  
          this bill could arguably help address issues relating to the  
          difficulty that individuals face in attempting to bring private  
          causes of action to stop such unlawful behavior under the Unruh  
          Civil Rights Act. 
           

          Support  :  Black Women Organized for Political Action; California  
          State Conference of the National Association for the Advancement  
          of Colored People; Consumer Attorneys of California; Consumer  
          Federation of California; Prevent CRP (Consumer Racial  
          Profiling)

           Opposition  :  None Known 

                                        HISTORY
           
          Source  :  Lawyers' Committee for Civil Rights of the San  
          Francisco Bay Area

           Related Pending Legislation  :   None Known 

           Prior Legislation  :  None Known 

           Prior Vote  :

          Assembly Floor (Ayes 76, Noes 0)







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          Assembly Appropriations Committee (Ayes 20, Noes 0)
          Assembly Privacy and Consumer Protection Committee (Ayes 11,  
          Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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