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)
          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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