BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 600|
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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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