BILL ANALYSIS                                                                                                                                                                                                    





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


          SB 600 (Pan)
          Version: April 6, 2015
          Hearing Date:  May 12, 2015
          Fiscal: No
          Urgency: No
          RD   
                    

                                        SUBJECT
                                           
            Discrimination:  citizenship:  language:  immigration status

                                      DESCRIPTION  

          Under existing law, the Unruh Civil Rights Act prohibits  
          business establishments from discriminating against any  
          individual on the basis of certain characteristics such as sex,  
          race, and national origin.  This bill would add citizenship,  
          primary language, and immigration status to the list of  
          protected classes under the Unruh Civil Rights Act, except that  
          a verification of immigration status and any discrimination  
          based upon verified immigration status, where required by  
          federal law, shall not constitute an Unruh violation.   This  
          bill would also specify that the inclusion of these  
          classifications under Unruh does not constitute a change in, but  
          is declaratory of, existing law.

                                      BACKGROUND  

          California law, the Fair Employment and Housing Act (FEHA) and  
          the Unruh Civil Rights Act, 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, national origin,  
          religion, and disability.  Over time, these statutes have  
          evolved to include other characteristics such as medical  
          condition, marital status, sexual orientation, and genetic  
          information to generally reflect the state's public policy  
          against discrimination in all forms.   The Unruh Civil Rights  
          Act is meant to cover all arbitrary and intentional  








          SB 600 (Pan)
          Page 2 of ? 

          discrimination by a business establishment on the basis of the  
          personal characteristics listed above, whereas FEHA is the  
          principal California statute prohibiting employment and housing  
          discrimination covering employers, labor organizations,  
          employment agencies, apprenticeship programs, and any person or  
          entity, who aids, abets, incites, compels, or coerces the doing  
          of a discriminatory act.  

          Unlike Unruh, however, FEHA expressly provides that it is also  
          an unlawful employment practice for an employer to adopt or  
          enforce a policy that prohibits the use of any language in the  
          workplace.  (Gov. Code Secs. 12900-12996; there is an exception  
          to this general rule where the policy is justified by business  
          necessity and prescribed notice of the policy and consequences  
          for violation of the policy is given to employees.)

          The California Supreme Court has consistently held that the  
          Unruh Civil Rights Act provides broad protection to all persons  
          who are arbitrarily discriminated against by business  
          establishments.  Beginning in the 1950's the court found that  
          the State Board of Equalization acted illegally by suspending  
          the license of a bar and restaurant merely because it allowed  
          patronage by gay people whom the licensor saw as "immoral."  
          (Stoumen v. Reilly (1951) 37 Cal.2d 713.)  In 1970, the court  
          held that the Unruh Civil Rights Act forbids a business  
          establishment that is generally open to the public from  
          arbitrarily excluding a prospective customer (In re Cox (1970) 3  
          Cal.3d 205.)  This case was followed by Marina Point, Ltd. v.  
          Wolfson  (1982) 30 Cal.3d 721, which found that a landlord's "no  
          children" policy was arbitrary discrimination based on familial  
          status that violated the Act.  In all of these cases, the court  
          engaged in statutory analysis of the Unruh Civil Rights Act and  
          determined the "past judicial interpretation of the act, and the  
          history of legislative action that extended the statutes' scope,  
          indicate that identification of particular bases of  
          discrimination - color, race, religion, ancestry, and national  
          origin . . . is illustrative rather than restrictive. Although  
          the legislation has been invoked primarily by persons alleging  
          discrimination on racial grounds, its language and its history  
          compel the conclusion that the Legislature intended to prohibit  
          all arbitrary discrimination by business establishments."  (See  
          In re Cox, 3 Cal.3d at 216.)

          Nonetheless, on several occasions, the State has approved  
          expanding Unruh to expressly cover new classifications.  In  







          SB 600 (Pan)
          Page 3 of ? 

          2005, AB 1400 (Laird, Ch. 420, Stats. 2005) specified that  
          discrimination based on marital status and sexual orientation  
          would not be tolerated in California by adding those  
          classifications to Unruh.  The purpose of that legislation was  
          to address repeated complaints from individuals and attorneys  
          representing victims of discrimination based on marital status  
          and sexual orientation who claimed difficulty enforcing these  
          protections because they were not expressly specified in the  
          law.  In 2011, AB 887 (Atkins, Ch. 719, Stats. 2011) was enacted  
          to expressly add "gender identity" and "gender expression"  
          throughout both Unruh and FEHA and to define "gender expression"  
          to mean a person's gender-related appearance and behavior  
          whether or not stereotypically associated with the person's  
          assigned sex at birth.  Also in 2011, SB 559 (Padilla, Ch. 261,  
          Stats. 2011) was enacted to add genetic information to both  
          Unruh and FEHA, as well as other anti-discrimination statutes. 

          Notably, in 1999, AB 407 (Cedillo, 1999), also sponsored by the  
          Mexican American Legal Defense and Educational Fund (MALDEF),  
          sought to add discrimination based on immigration status to  
          Unruh, among other things. That bill was ultimately vetoed by  
          then-Governor Davis, because "all residents of California,  
          regardless of immigration status, are already protected from  
          discrimination based in their personal characteristics,  
          specifically ethnic origin and nationality."  Prior bills have  
          also sought to expressly add language to Unruh and have  
          similarly been vetoed.  (See Comment 4.) 
          This bill now seeks to add citizenship, primary language, and  
          immigration status as protected classifications under the Unruh  
          Civil Rights Act. 

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Fair Employment and Housing Act (FEHA),  
          prohibits discrimination in housing and employment on the basis  
          of race, religious creed, color, national origin, ancestry,  
          physical disability, mental disability, medical condition,  
          genetic information, marital status, sex, gender, gender  
          identity, gender expression, age, sexual orientation, or  
          military and veteran status.  (Gov. Code Sec. 12920 et seq.)
           
          Existing law  , FEHA, provides that it is an unlawful employment  
          practice for an employer to adopt or enforce a policy that  
          prohibits the use of any language in the workplace, except if  
          that policy is justified by "business necessity" and prescribed  







          SB 600 (Pan)
          Page 4 of ? 

          notice of the policy and consequences for violation of the  
          policy is given to employees, as specified.  (Gov. Code Sec.  
          12951.)
           
          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, or sexual orientation, everyone is entitled to the full  
          and equal accommodations, advantages, facilities, privileges, or  
          services in all business establishments.  (Civ. Code Sec. 51.)
          
           This bill  would add citizenship, primary language, and  
          immigration status to the list of characteristics protected  
          under the Unruh Civil Rights Act. 

           This bill  would specify that a verification of immigration  
          status and any discrimination based upon verified immigration  
          status, where required by federal law, shall not constitute a  
          violation of Unruh.

           This bill  would provide that these additions to Unruh do not  
          constitute a change in, but are declaratory of, existing law.   
          This bill would provide that it is not the intent of the  
          Legislature in amending Unruh to affect the protected status of  
          any other classification, whether or not expressed in the Unruh  
          statute.

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author: 

            The United States Supreme Court has previously held that  
            citizenship and language are not the same as national origin,  
            and that federal protections against discrimination on the  
            basis of these characteristics is not covered by  
            constitutional provisions and laws barring national origin  
            discrimination.  Thus, in Espinoza v. Farah Mfg. Co., 414 U.S.  
            86 (1973), the Court held that Title VII of the Civil Rights  
            Act of 1964, which prohibits employment discrimination on the  
            basis of national origin, does not prohibit employment  
            discrimination on the basis of citizenship.  More recently, in  
            Hernandez v. New York, 500 U.S. 352 (1991), the Supreme Court  







          SB 600 (Pan)
          Page 5 of ? 

            [ . . . ] concluded that constitutional protections against  
            jury exclusion on the basis of race and national origin do not  
            protect against discrimination on the basis of language.  In  
            both cases, while there were indications that citizenship and  
            language were closely linked with ethnicity, the Court  
            rejected inclusion of either in the covered category of  
            national origin.  Neither case has been overruled, and both  
            remain binding [as a matter of federal] law.

            While courts have construed the Unruh Act in California law  
            broadly and liberally, it is not clear that discrimination on  
            the basis of characteristics that are not innate or related to  
            personal appearance would be construed as covered.  In Harris  
            v. Capitol Growth Investors XIV, 52 Cal.3d 1142 (1991), the  
            California Supreme Court, in rejecting application of the  
            Unruh Act to financial classifications, stated:

               [ . . . ] Although our decisions have occasionally  
               recognized additional categories of prohibited  
               discrimination (e.g., physical appearance and family  
               status), those categories were based on personal  
               characteristics of individuals that bore little or no  
               relationship to their abilities to be responsible consumers  
               of public accommodations.  Id. at 1148.   

            [As a result, the] concern is that citizenship, language and  
            immigration status --which are theoretically changeable for  
            all persons -- would be construed as more like the economic  
            distinctions in Harris and less like the largely immutable  
            characteristics listed in the statute and unlike the  
            characteristics of personal appearance having no rational  
            relationship to any basis for distinction in business  
            establishments.

          As stated by the Mexican American Legal Defense and Educational  
          Fund (MALDEF), co-sponsor of this bill: 

            The Unruh Act has long ensured that California businesses do  
            not engage in arbitrary discrimination. While the California  
            Supreme Court has held that the listed prohibited grounds for  
            discrimination are "illustrative rather than restrictive," In  
            re Cox, 3 Cal. 3d 205, 216 (1970), it has also concluded that  
            the prohibited discrimination must be similar to the kinds of  
            characteristics listed in the statute. Thus, in rejecting  
            coverage of discrimination on the basis of financial or  







          SB 600 (Pan)
          Page 6 of ? 

            economic status, the Court held that the Unruh Act prohibits  
            discrimination based on "the classifications listed in the Act  
            . . . or similar personal traits, beliefs, or characteristics  
            that bear no relationship to the responsibilities of consumers  
            of public accommodations." Harris v. Capital Growth Investors  
            XIV, 52 Cal.3d 1142, 1169 (1991).

            While many might conclude that citizenship, primary language,  
            and immigration status are personal characteristics like those  
            specified in the act, others might well determine that these  
            characteristics, which are changeable and, in other  
            circumstances, relevant considerations under the law, are more  
            akin to the financial and economic status addressed in Harris.  
            It helps no one - least of all the businesses required to  
            comply with the Unruh Act - to require Californians to parse  
            court opinions to reach a debatable conclusion about how to  
            comply with the law. 

            [ . . . ] In an age when too many political leaders engage in  
            unduly harsh, judgmental, and dehumanizing rhetoric about  
            immigrants, California should provide clear notice to business  
            proprietors that they cannot allow overheated political  
            demagoguery to lead them to the erroneous conclusion that they  
            may discriminate in public accommodations.

          Co-sponsor, California Civil Rights Coalition (CCRC) writes:   
          "CCRC strongly favors ensuring that our state laws clearly and  
          comprehensively protect against bias and discrimination.  
          Prevention of discrimination is far superior to remedying  
          discrimination after it has occurred.  CCRC therefore supports  
          greater clarity in all of our civil rights laws.  SB 600  
          addresses this goal with respect to business discrimination  
          against immigrants. In addition, our economy and every business  
          that contributes to our economy will thrive if the distortions  
          in competition caused by discrimination are avoided.  At the  
          national level, immigration reform and immigrant integration  
          remain politically controversial. Unfortunately, our state, as a  
          critical part of the nation, cannot be totally immune from the  
          influence of our nation's increasingly contentious and debased  
          public debate on the issue. We can, however, limit the impacts  
          of the increasing demonization of immigrants in public discourse  
          by enacting sensible legislation like SB 600." 

          2.    Bill seeks to clarify the prohibition against national  
            origin discrimination under Unruh







          SB 600 (Pan)
          Page 7 of ? 

           
          This bill seeks to add citizenship, primary language, and  
          immigration status to the list of protected classes under the  
          Unruh Civil Rights Act and declares that it is a restatement of  
          existing law.  While no case has directly held that immigration  
          status is covered within Unruh, it would appear consistent with  
          existing law which prohibits arbitrary discrimination based upon  
          personal characteristics. (Harris v. Capitol Growth Investors  
          XIV (1991) 52 Cal.3d 1142.)  In addition, existing law prohibits  
          discrimination based upon national origin, of which immigrants  
          are a subset .  In order ensure protection against impermissible  
          discrimination based upon the category of "national origin,"  
          discrimination against members of any subset of that category  
          must also be prohibited under existing law.  This concept is  
          supported by the history of the Unruh Act, and by analogous case  
          law.  (See discussion in Vaughn v. Neu Proler International  
          (1990) 223 Cal.App.3d.1612, 1617, at fn. 2.)                      
                  
                                           
          Accordingly, as noted in the Background, this state's Supreme  
          Court has held that the conduct that is enumerated in Unruh  
          (Section 51) is illustrative rather than restrictive.  (In re  
          Cox (1970) 3 Cal.3d 205, 212.)  "Both the language of the  
          statute and its history 'disclose a clear and large design to  
          interdict all arbitrary discrimination by a business  
          enterprise.' [ . . . ]  'The act protects all persons from  
          arbitrary discrimination . . . .' It is not limited to a  
          category of 'protected classes.'  [ . . . ]  The statutory right  
          afforded 'all persons'" by section 51 is of an individual  
          nature.  [ . . . ] Section 51 was derived "from the common law  
          doctrine which imposed upon certain enterprises affected with a  
          public interest '"the duty to serve all customers on reasonable  
          terms without discrimination."' [ . . . ] Under this common law  
          principle, each member of the public, as an individual,  
          possessed the right to obtain services of such enterprises. [ .  
          . . ]  The rights afforded by the Unruh Act similarly are  
          enjoyed by all persons, as individuals." (Vaughn, 223 Cal.App.3d  
          at 1617 (internal citations omitted).) 

          As an earlier court explained further:  "As employed in   
          sections 51 and 52 of the Civil Code, the term 'citizen' is not  
          used in a restricted sense -- that is, a citizen of a state or  
          citizen of the United States -- but in the broad and  
          unrestricted sense, implying that one is a resident of the state  
          and as such entitled to invoke the jurisdiction of its courts to  







          SB 600 (Pan)
          Page 8 of ? 

          protect a right guaranteed to all, without reference to race or  
          color, who reside within its jurisdiction."  (Prowd v. Gore  
          (1922) 57 Cal.App. 458.)  The Prowd court went on to state,  
          "[i]n our  opinion, it was not the intent of the legislature to  
          restrict the operation of the statute to those only who were  
          subjects of the United States government and exclude therefrom  
          unnaturalized residents of foreign birth, whether white or  
          black." (Id.)

          With respect to the bill's addition of primary language,  
          language, in many cases, is closely tied to an individual's  
          national origin, and arbitrary bans on foreign languages could  
          easily be used to mask intentional discrimination on the basis  
          of national origin.  Public policy, thus, is arguably best  
          served by prohibiting restriction on the usage of any language  
          in business establishments.  At the same time, staff notes that  
          similar bills seeking to add language to Unruh's protections  
          have been vetoed, both: (1) based upon the belief that existing  
          law already prohibits businesses from limiting the use of  
          language without a business necessity and protects against  
          discrimination based on language when it is used as a pretext to  
          discriminate against persons due to their national origin; and  
          (2) based upon concerns of the effect that would be had on  
          businesses, and particularly small businesses that may violate  
          this prohibition without any malice or bad intent.  (See Comment  
          5.) 
            
          3.   Vetoes of prior related legislation  

          AB 2521 (Napolitano) of 1994, would have added immigrant status  
          and homelessness to a hate crimes law under the Penal Code.  The  
          bill was vetoed by then-Governor Pete Wilson, who stated:  
          "Notwithstanding the obvious good intention to add these new  
          classes to those already protected from hate crimes, there is  
          need for great caution in doing so to prevent unintended  
          consequences.  That is especially true in the case of  
          conscientious public officials, whose duties require enforcement  
          of laws or regulations that expressly focus upon homelessness or  
          immigration status."  Notably, unlike that bill, SB 600 provides  
          that a verification of immigration status and any discrimination  
          based upon verified immigration status, where required by  
          federal law, shall not constitute an Unruh violation.   

          Similar to this bill, AB 407 (Cedillo, 1999) would have added  
          immigrant status to Unruh.  That bill was vetoed by  







          SB 600 (Pan)
          Page 9 of ? 

          then-Governor Gray Davis, who stated: "All persons should be  
          free from discrimination.  Under the Unruh Act all residents of  
          California, regardless of immigration status, are already  
          protected from discrimination based in their personal  
          characteristics, specifically ethnic origin and nationality.   
          This bill is unnecessary because the addition of 'immigration  
          status' to the list of protected classes would not materially  
          enhance the scope of protection that is now available under the  
          Unruh Act."

          Also similar to this bill, SB 111 (Yee, 2011), as heard by this  
          Committee, would have it a violation of the Unruh Civil Rights  
          Act to adopt or enforce a policy that limits or prohibits the  
          use of any language in a business establishment, unless the  
          language is justified by a business necessity and notification  
          has been provided of the circumstances and the time when the  
          language restriction is required to be observed, and of the  
          consequences for its violation.  SB 111 also specified that the  
          bill was not to be construed to impose a duty on any business  
          establishment to provide customer service in a particular  
          language unless that duty is otherwise required by law. SB 111  
          was ultimately vetoed by Governor Brown, who stated:  "Existing  
          law already prohibits businesses from limiting the use of  
          language without a business necessity.  In addition, existing  
          law specifically protects against discrimination based on  
          language when it is used as a pretext to discriminate against  
          persons due to their national origin."  Governor Brown's veto  
          also expressed concern "that businesses, especially small  
          businesses, could run afoul of this measure without any malice  
          or bad intent, thereby subjecting themselves to costly  
          litigation."

          SB 111, as heard in this Committee, was nearly identical to the  
          enrolled version of SB 242 (Yee, 2009).  In vetoing SB 242, the  
          Governor stated: "While no one should be treated differently  
          based on their race or national origin, no single business can  
          accommodate every language spoken in California.  Unfortunately,  
          under this measure, any business that treats customers  
          differently because the business may not be able to effectively  
          communicate with the customer could then be required to justify  
          such disparate treatment in a court of law.  Since this measure  
          would have the unintended effect of increasing frivolous  
          lawsuits against businesses, I am unable to sign this bill."









          SB 600 (Pan)
          Page 10 of ? 

           Support  :  American Federation of State, County and Municipal  
          Employees (AFSCME); Anti-Defamation League; Asian Americans  
          Advancing Justice - Sacramento; ASPIRE; California Immigrant  
          Policy Center; California Rural Legal Assistance Foundation,  
          Inc. (CRLAF); California Teachers Association; Center on Race,  
          Poverty & the Environment; Coalition for Humane Immigrant Rights  
          of Los Angeles (CHIRLA); Consumer Attorneys of California  
          (CAOC); Friends Committee on Legislation of California;  
          Immigration Center for Women and Children (ICWC); Immigrant  
          Youth Justice Alliance (CIYJA); National Association of Social  
          Workers; Services Immigrant Rights, and Education Network  
          (SIREN)

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California Civil Rights Coalition; Mexican American  
          Legal Defense and Educational Fund (MALDEF)

           Related Pending Legislation  :  None Known 
                                                                            
           Prior Legislation  :

          AB 887 (Atkins, Ch. 719, Stats. 2011) See Background.

          SB 559 (Padilla, Ch. 261, Stats. 2011) See Background.

          SB 111 (Yee, 2011) See Comment 3. 

          SB 242 (Yee, 2009) See Comment 3.

          AB 1400 (Laird, Ch. 420, Stats. 2005) See Background. 

          AB 407 (Cedillo, 1999) See Background and Comment 3. 

          AB 2521 (Napolitano, 1994) See Comment 3. 

                                   **************
                                          












          SB 600 (Pan)
          Page 11 of ?