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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