BILL ANALYSIS Ó
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
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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
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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
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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
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[ . . . ] 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
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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
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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
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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
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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."
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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.
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