BILL ANALYSIS Ó
AB 2707
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CONCURRENCE IN SENATE AMENDMENTS
AB
2707 (Ridley-Thomas)
As Amended August 4, 2016
Majority vote
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|ASSEMBLY: |76-0 |(May 19, 2016) |SENATE: | 38-0 |(August 15, |
| | | | | |2016) |
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Original Committee Reference: JUD.
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.
The Senate amendments incorporate additional changes to Section
12930 of the Government Code, proposed by SB 1442 (Liu), to be
operative only if SB 1442 and this bill are both chaptered and
become effective on or before January 1, 2017, and this bill is
chaptered last.
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 (CIV) 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. (CIV 51.5 (a).)
3)Provides, under federal law, that all persons shall be
entitled to the full and equal enjoyment of the goods,
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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 United States Code Section
2000a.)
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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 on
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.
Therefore, some of the retailer conduct that constitutes
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"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, this bill 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.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN:
0003869
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