BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 600| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 600 Author: Pan (D) Amended: 5/18/15 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), except that 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 also specifies that that these protections do not require the provision of services or documents in a language other than English, beyond that which is otherwise required by existing law, as specified. This bill specifies that the inclusion of these classifications under Unruh does not constitute a change in, but is declaratory of, existing law. Senate Floor Amendments of 5/18/15 clarify that this bill does not require the provision of services or documents in a language other than English, beyond what is otherwise required by SB 600 Page 2 existing law. ANALYSIS: Existing law: 1)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. 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. 3)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. This bill: 1)Adds citizenship, primary language, and immigration status to the list of characteristics protected under Unruh. 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 SB 600 Page 3 Unruh. 3)Specifies that these Unruh protections shall not be construed to require the provision of services or documents in a language other than English, beyond that which is otherwise required by other provisions of federal, state, or local law, including specified state law relating to contracts. 4)Provides that these additions to Unruh do not constitute a change in, but are declaratory of, existing law. Provides 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. Background California law, FEHA and Unruh, 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. Unruh 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 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 SB 600 Page 4 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 Unruh 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 Unruh 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 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. 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 Unruh and FEHA and to define "gender SB 600 Page 5 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 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. This bill now seeks to add citizenship, primary language, and immigration status as protected classifications under Unruh. Comment As stated by 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 SB 600 Page 6 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified5/21/15) California Civil Rights Coalition (co-source) Mexican American Legal Defense and Educational Fund (co-source) American Federation of State, County and Municipal Employees SB 600 Page 7 Anti-Defamation League Asian Americans Advancing Justice - Sacramento ASPIRE California Apartment Association 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 Equality California Friends Committee on Legislation of California Immigration Center for Women and Children Immigrant Youth Justice Alliance National Association of Social Workers Services, Immigrant Rights, and Education Network OPPOSITION: (Verified5/21/15) None received Prepared by:Ronak Daylami / JUD. / (916) 651-4113 5/21/15 11:08:32 **** END ****