BILL ANALYSIS Ó
SB 600
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Date of Hearing: June 30, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
600 (Pan) - As Amended May 18, 2015
SENATE VOTE: 30-9
SUBJECT: DISCRIMINATION: CITIZENSHIP: LANGUAGE: IMMIGRATION
STATUS
KEY ISSUE: SHOULD it be clarified in state law that arbitrary
discrimination by businesses on the basis of citizenship,
primary language, or immigration status IS specifically
prohibited by the state's unruh civil rights act?
SYNOPSIS
This bill, co-sponsored by the California Civil Rights Coalition
and the Mexican American Legal Defense Fund (MALDEF), seeks to
expand the list of protected characteristics in the Unruh Act to
specifically prohibit discrimination on the basis of immigration
status, primary language, and citizenship. According to the
author and sponsors, enough ambiguity exists about whether the
Unruh Act protects against discrimination based on immigration
status, citizenship, and primary language that it is worthwhile
to clarify that the Act specifically prohibits discrimination on
these bases. Because citizenship, immigration status, and
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language are changeable characteristics, and sometimes relevant
considerations under the law, proponents express concern that
some businesses may conclude that these characteristics are not
similar enough to other protected characteristics now currently
specified in the Unruh Act, and therefore may not be protected
from discrimination under the Act pursuant to case law,
specifically, Harris v. Capital Growth Investors XIV(1991) 52
Cal.3d 1142.
In some analogous contexts, the U.S. Supreme Court has ruled
that national origin and race are characteristics that are
distinct from citizenship and primary language, but at the same
time has recognized that permissible discrimination based on
citizenship and language may be used as a pretext for
impermissible discrimination on the basis of national origin or
race. According to proponents, this bill would help prevent
this kind of pretextual discrimination by clarifying that
citizenship and language discrimination, as well as immigration
status discrimination, are specifically prohibited under the
Unruh Act. The bill is supported by many civil rights
organizations, immigrant advocates, and labor unions and has no
known opposition.
SUMMARY: Amends the Unruh Act to expressly prohibit
discrimination by business establishments on the basis of
citizenship, primary language, and immigration status.
Specifically, this bill:
1)Includes citizenship, primary language, and immigration status
among the list of characteristics for which discrimination is
specifically prohibited under the Unruh Act.
2)Provides that 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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the Unruh Act.
3)Provides that nothing in this bill shall 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
Civil Code Section 1632.
4)Finds that these provisions do not constitute a change in, but
are declaratory of, existing law. Further states that it is
not the intent of the Legislature in amending the Unruh Act to
affect the protected status of any other classification,
whether or not expressed in the Act itself.
EXISTING LAW:
Pursuant to the Unruh Civil Rights Act ("Unruh Act"):
1)Generally prohibits business establishments from arbitrary
discrimination on the basis of certain personal
characteristics.
2)Specifically, the Unruh 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.
(Civil Code Section 51.)
3)Provides that "past judicial interpretation of the Act, and
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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, etc. . . . is illustrative rather than restrictive."
(In re Cox (1970) 3 Cal.3d 205, 216.)
Pursuant to the Fair Employment and Housing Act (FEHA):
4)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. (Government Code Section
12920 et seq.)
5)Provides 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. (Government Code Section 12951.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This bill, co-sponsored by the California Civil
Rights Coalition and the Mexican American Legal Defense Fund
(MALDEF), seeks to expand the list of protected characteristics
in the Unruh Act to specifically prohibit discrimination on the
basis of immigration status, primary language, and citizenship.
Stated Need for the Bill. According to the author:
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The Unruh Act provides protection against arbitrary
discrimination based on sex, race, color, religion,
ancestry, national origin, disability, medical
condition, marital status, or sexual orientation, but
is silent on immigration status, language and
citizenship.
The U.S. Supreme Court has held in 1973, and again in
1991, that "citizenship" and "language" are not the
same as "national origin", and that federal
constitutional civil rights protections are not
covered by the "national origin" characteristic.
Neither case has been overruled, and both remain
binding law. Therefore, there is a need to protect
these individuals from discrimination in the Unruh
Civil Rights Act. [W]ith the debate surrounding
immigration reform, and the newly created programs
under the President for immigration relief for DACA
and DAPA beneficiaries, we believe the bill is
necessary to guard against discrimination faced by
immigrants.
The California Civil Rights Coalition (CCRC), co-sponsor of the
bill, contends that it is needed to ensure that our state laws
clearly and comprehensively protect against discrimination.
CCRC states:
Prevention of discrimination is far superior to
remedying discrimination after it has occurred. CCRC
therefore supports greater clarity in all of our civil
rights laws. SB 600 addresses this goal with respect
to business discrimination against immigrants. In
addition, our economy and every business that
contributes to our economy will thrive if the
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distortions in competition caused by discrimination
are avoided.
Background on the Unruh Act. Civil Code Section 51, the Unruh
Civil Rights Act, is considered one of the cornerstones of
antidiscrimination law in California, and specifically prohibits
business establishments from denying equal accommodations and
services on the basis of sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, or sexual orientation. The true
scope of protection under the Unruh Act is actually even more
broad than these categories because the California Supreme Court
has consistently interpreted the Unruh Act in an expansive way,
holding that it is meant to cover all arbitrary and intentional
discrimination by business establishments.
In a landmark 1970 case, 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 3 (1970) Cal.3d 205.) In a detailed analysis of the Unruh
Act, the Court 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.
(Emphasis added.) 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." (Id. at p. 216.)
The Court has also concluded, however, that prohibited
discrimination, if unspecified, 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
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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
(1991) 52 Cal.3d 1142, 1169.)
In recent years, the Legislature has enacted several bills
amending the Unruh Act to expressly cover new classifications.
In 2005, AB 1400 (Laird), Ch. 420, Stats. 2005, added marital
status and sexual orientation to the list of protected
characteristics specified in the 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), Ch. 719, Stats.
2011, was enacted to expressly add "gender identity" and "gender
expression" throughout both Unruh 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. That same year, SB 559
(Padilla), Ch. 261, Stats. 2011, was enacted to add genetic
information as a protected characteristic under the Unruh Act,
FEHA, and other anti-discrimination statutes.
This bill seeks to ensure that discrimination based on
immigration status, citizenship, or primary language spoken is
prohibited under the Unruh Act. According to the author and
sponsors, enough ambiguity exists about whether the Unruh Act
protects against discrimination based on immigration status,
citizenship, and primary language that it is worthwhile to
clarify that the Act specifically prohibits discrimination on
those bases. Co-sponsor MALDEF states: "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. . .
California should provide clear notice to business proprietors
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that they [should not make] the erroneous conclusion that they
may discriminate in public accommodations."
Because citizenship, immigration status, and language are
changeable characteristics, and sometimes relevant consideration
under other law, proponents are apparently concerned that some
businesses may conclude that these characteristics are not
similar to those characteristics currently specified in the
Unruh Act, and are instead more like the characteristic of
economic status which was determined by the Harris court to not
be a prohibited form of discrimination under the Act.
A. Citizenship and primary language. With respect to
citizenship and language, proponents may be concerned that
previous court cases may lead some California court to conclude
in the future that these characteristics are too different from
existing Unruh protected characteristics and therefore not
protected from discrimination under the Unruh Act. In some
analogous contexts, the U.S. Supreme Court has ruled that
national origin and race are distinct from citizenship and
primary language. For example, in Espinoza v. Farah Mfg. Co.
(1973) 414 U.S. 86, the Court held that while Title VII of the
Civil Rights Act of 1964 prohibited discrimination on the basis
of national origin, it does not prohibit discrimination on the
basis of citizenship. The Court commented that "national
origin" on its face refers to the country where a person was
born or from which the person's ancestors came, and that the
Congressional record only supported this interpretation. (Id. at
pp. 88-89.) Consequently, the Court concluded that there was no
reason to believe Congress intended for the term "national
origin" to have any broader scope. (Id. at p. 91.)
In Hernandez v. New York (1991) 500 U.S. 352, the Court held
that while the constitution protects individuals from
discrimination based on their race in jury selection, that
protection does not include protection from discrimination based
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on the language spoken by that individual. In that case, the
Court stated that the prosecutor's dismissal of jurors based on
the language they spoke was "race-neutral," and even if it
resulted in a disproportionate removal of Latinos from juries,
that did not rise to a per se violation of the Equal Protection
Clause. (Id. at p. 361.)
Where there is a Supreme Court precedent establishing that
citizenship and language are distinct from nationality and race,
and that prohibiting discrimination based on the latter does not
prohibit discrimination based on the former, the Unruh Act's
prohibition of discrimination on the basis of nationality and
race can arguable be said to not impliedly also prohibit
discrimination on the basis of citizenship or language spoken.
It is also important to note that in both Espinoza and
Hernández, the Court commented that permissible discrimination
based on citizenship and language may be used as a pretext for
impermissible discrimination on the basis of national origin or
race. According to proponents, this bill would help prevent
this kind of pretextual discrimination by clarifying that
citizenship and language discrimination are specifically
prohibited by the Unruh Act.
An argument can also be made that language discrimination is
already prohibited by the Unruh Act when it is pretext for
discrimination based on national origin. Such an argument was
made by Gov. Brown in his veto message of SB 111 (Yee) of 2011.
As heard by this Committee, SB 111 would have made it a
violation of the Unruh Civil Rights Act to adopt or enforce a
policy that limited or prohibited the use of any language in a
business establishment, unless the language is justified by a
business necessity and notification has been provided of the
circumstances and the time when the language restriction is
required to be observed, and of the consequences for its
violation.
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SB 111 was ultimately vetoed by Governor Brown, who stated:
"Existing law already prohibits businesses from limiting the use
of language without a business necessity. In addition, existing
law specifically protects against discrimination based on
language when it is used as a pretext to discriminate against
persons due to their national origin." This bill would clarify
that under the Unruh Act, discrimination based on language is
specifically prohibited, whether the discrimination is direct or
used as a pretext for national origin discrimination.
B. Immigration Status. While no case has directly held that
immigration status is covered within Unruh, it would appear
consistent with existing law which prohibits arbitrary
discrimination based upon personal characteristics. (Harris v.
Capitol Growth Investors XIV, supra, 52 Cal.3d at p. 1169.) In
addition, existing law prohibits discrimination based upon
national origin, of which immigrants are a subset. In order to
ensure protection against impermissible discrimination based
upon the category of "national origin," discrimination against
members of any subset of that category must also be prohibited
under existing law. This concept is supported by the history of
the Unruh Act, and by analogous case law. (See Vaughn v. Neu
Proler International (1990) 223 Cal.App.3d.1612, 1617, at fn.
2.)
As with language discrimination, an argument has been made that
discrimination based on immigration status is already prohibited
by the Unruh Act when it is pretext for discrimination based on
national origin. In 1999, AB 407 (Cedillo) sought to add
discrimination based on immigration status to the list of
characteristics protected under the Unruh Act. That bill was
ultimately vetoed by then-Governor Davis, who stated in his veto
message his belief that "all residents of California, regardless
of immigration status, are already protected from discrimination
based in their personal characteristics, specifically ethnic
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origin and nationality."
This bill would further clarify that the Unruh Act specifically
protects against discrimination based on immigration status,
whether occurring directly or used as a pretext for national
origin discrimination. In light of ongoing debate about
immigration reform and the President's recent executive actions
establishing the DAPA and DACA programs, the author and sponsor
contend such clarification to the Unruh Act is warranted. In
support, CCRC states:
At the national level, immigration reform and
immigrant integration remain politically
controversial. Unfortunately, our state, as a critical
part of the nation, cannot be totally immune from the
influence of our nation's increasingly contentious and
debased public debate on the issue. We can, however,
limit the impacts of the increasing demonization of
immigrants in public discourse by enacting sensible
legislation like SB 600.
Provisions to respect existing law on verification of
immigration status and translation requirements. In order to
ensure that this bill does not create unintended conflicts with
existing laws on verification of immigration status and
translation of documents into languages other than English, the
author has previously amended the bill accordingly. The bill
currently provides that verification of immigration status and
any discrimination based upon verified immigration status, where
required by federal law, shall not constitute a violation of
this section. In addition, the bill clarifies that none of its
provisions shall 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 Section 1632 of the Civil Code.
This is similar to language in SB 111 (Yee) that also specified
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that the bill was not to be construed to impose a duty on any
business establishment to provide customer service in a
particular language unless that duty is otherwise required by
law. By adding these qualifications, the bill seeks to avoid
infringing on any federal laws that may create a preemption or
overreach-based conflict.
REGISTERED SUPPORT / OPPOSITION:
Support
California Civil Rights Coalition (co-sponsor)
Mexican American Legal Defense and Educational Fund (MALDEF)
(co-sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Anti-Defamation League
Asian Americans Advancing Justice - Sacramento
ASPIRE
California Civil Rights Coalition
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California Equity Leaders Network
California Immigrant Policy Center
California Rural Legal Assistance Foundation (CRLAF)
California Teachers Association
Center on Race, Poverty & the Environment
Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA)
Consumer Attorneys of California (CAOC)
Equality California
Friends Committee on Legislation of California
Immigration Center for Women and Children (ICWC)
Immigrant Youth Justice Alliance (CIYJA)
National Association of Social Workers
National Council of La Raza
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Services Immigrant Rights, and Education Network (SIREN)
Opposition
None on file
Analysis Prepared by:Anthony Lew and Estevan Villareal/ JUD. /
(916) 319-2334