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)
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
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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
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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
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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
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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
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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
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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
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