BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 600|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 600
Author: Pan (D), et al.
Amended: 5/4/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-2, 5/12/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SUBJECT: Discrimination: citizenship: language:
immigration status
SOURCE: California Civil Rights Coalition
Mexican American Legal Defense and Educational Fund
DIGEST: This bill adds citizenship, primary language, and
immigration status to the list of protected classes under the
Unruh Civil Rights Act (Unruh 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 Act violation. This bill also specifies
that the inclusion of these classifications under the Unruh Act
does not constitute a change in, but is declaratory of, existing
law.
ANALYSIS:
Existing law:
1)Prohibits, under the Fair Employment and Housing Act (FEHA),
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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.)
2)Provides, under FEHA, 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 notice of the policy and consequences for violation
of the policy is given to employees, as specified. (Gov. Code
Sec. 12951.)
3)Provides, under the Unruh Act, 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:
1)Adds citizenship, primary language, and immigration status to
the list of characteristics protected under the Unruh Act.
2)Specifies 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
the Unruh Act.
3)Provides that these additions to Unruh Act do not constitute a
change in, but are declaratory of, existing law; and provides
that it is not the intent of the Legislature in amending Unruh
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Act to affect the protected status of any other
classification, whether or not expressed in the Unruh Act
statute.
Background
California law, FEHA and the Unruh 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 Act is meant to
cover all arbitrary and intentional 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 the Unruh Act, 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 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
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whom the licensor saw as "immoral." (Stoumen v. Reilly (1951) 37
Cal.2d 713.) In 1970, the court held that the Unruh 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 Unruh Act. In all of
these cases, the court engaged in statutory analysis of the
Unruh 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 the Unruh Act to expressly cover new classifications.
In 2005, AB 1400 (Laird, Chapter 420, Statutes of 2005)
specified that discrimination based on marital status and sexual
orientation would not be tolerated in California by adding those
classifications to Unruh Act. 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, Chapter 719,
Statutes of 2011) was enacted to expressly add "gender identity"
and "gender expression" throughout both the Unruh Act 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, Chapter 261, Statutes of
2011) was enacted to add genetic information to both the Unruh
Act and FEHA, as well as other anti-discrimination statutes.
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Notably, in 1999, AB 407 (Cedillo), also sponsored by the
Mexican American Legal Defense and Educational Fund, sought to
add discrimination based on immigration status to the Unruh Act,
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 the Unruh Act and have
similarly been vetoed.
This bill now seeks to add citizenship, primary language, and
immigration status as protected classifications under the Unruh
Act.
Comment
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
[ . . . ] 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.
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/12/15)
California Civil Rights Coalition (co-source)
Mexican American Legal Defense and Educational Fun (co-source)
American Federation of State, County and Municipal Employees
Anti-Defamation League
Asian Americans Advancing Justice - Sacramento
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ASPIRE
California Immigrant Policy Center
California Rural Legal Assistance Foundation, Inc.
California Teachers Association
Center on Race, Poverty & the Environment
Coalition for Humane Immigrant Rights of Los Angeles
Consumer Attorneys of California
Friends Committee on Legislation of California
Immigrant Youth Justice Alliance
Immigration Center for Women and Children
National Association of Social Workers
Services Immigrant Rights, and Education Network
OPPOSITION: (Verified5/12/15)
None received
ARGUMENTS IN SUPPORT: As stated by the Mexican American
Legal Defense and Educational Fund, 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
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
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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.
Prepared by: Ronak Daylami / JUD / (916) 651-4113
5/15/15 15:52:43
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