BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 899 (Hueso)
Version: March 31, 2016
Hearing Date: April 12, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
Gender discrimination
DESCRIPTION
Existing law, the Gender Tax Repeal Act, prohibits all business
establishments from discriminating, with respect to the price
charged for services of similar or like kind, against a person
because of the person's gender. Existing law further requires
certain businesses to display, among other things, a price list
for standard services, as specified.
This bill would extend the Gender Repeal Tax Act's prohibitions
against gender-based price discrimination for services to goods
as well.
BACKGROUND
California law, the Unruh Civil Rights Act, prohibits business
establishments from discriminating against any individual on the
basis of certain characteristics such as sex, race, and national
origin. (Civ. Code Sec. 51.) In 1995, California enacted the
"Gender Tax Repeal Act" (AB 1100 (Speier, Ch. 866, Stats. 1995))
to specifically prohibit businesses from engaging in price
discrimination based on gender with respect to services of a
like or similar kind, while also clarifying that this
prohibition does not apply to price differentials to be based
upon the amount of time, difficulty, or cost of providing the
service. (See Civ. Code Sec. 52.6(b), (c).) In 2001, AB 1088
(Jackson, Ch. 312, Stats. 2001) added provisions to the Gender
Tax Repeal Act that require specified business establishments,
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such as tailors, hair salons, and dry cleaners, to conspicuously
display their prices for each "standard service" (i.e., the 15
most frequently requested services provided by the business) to
customers. AB 1088 also required those businesses to display a
sign that states it is illegal to base pricing of services on
gender and that a complete price list is available upon request.
This bill would now amend the Gender Tax Repeal Act to expressly
apply its prohibition against gender-based price discrimination
to goods.
CHANGES TO EXISTING LAW
Existing law , 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, sexual orientation, citizenship, primary language, or
immigration status, everyone is entitled to the full and equal
accommodations, advantages, facilities, privileges, or services
in all business establishments. (Civ. Code Sec. 51.)
Existing law , the Gender Tax Repeal Act, provides that no
business establishment of any kind whatsoever may discriminate,
with respect to the price charged for services of similar or
like kind, against a person because of the person's gender.
(Civ. Code Sec. 51.6(b).) Existing law provides that this does
not, however, prohibit price differences based specifically upon
the amount of time, difficulty, or cost of providing the
services. (Civ. Code Sec. 51.6(c).)
Existing law provides that specified business establishments,
including tailors, barbers or hair salons, and dry cleaners,
shall clearly and conspicuously disclose to the customer in
writing the pricing for each standard service provided, as
specified. "Standard services" for these purposes means the 15
most frequently requested services provided by the business.
(Civ. Code Sec. 51.6(f)(1), (2), (6).) These businesses must
also provide customers with a complete written price list upon
request and display in a conspicuous place at least one clearly
visible sign, as specified. (Civ. Code Sec. 51.6(f)(3)-(4).)
Existing law provides that, aside from a specified civil penalty
for price list and signage violations, the remedies for a
violation of the Gender Tax Repeal Act are the remedies that are
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generally available for an Unruh Civil Rights Act violation,
described below. Any action under this act, however, is
independent of any other remedy or procedure that may be
available to an aggrieved party. (Civ. Code Sec. 51.6(d).)
Existing law , in relevant part, provides that any person who
denies, aids or incites a denial, or makes any discrimination or
distinction contrary to the Unruh Civil Rights Act or to the
Gender Tax Repeal Act, is liable for each and every offense for
the actual damages, and any amount that may be determined by a
jury, or a court sitting without a jury, up to a maximum of
three times the amount of actual damage but in no case less than
$4,000, and any attorney's fees that may be determined by the
court, suffered by any person denied the rights provided in
those acts. (Civ. Code Sec. 52(a).)
This bill would extend existing Gender Tax Repeal Act
prohibitions against pricing discrimination on the basis of
gender with respect to services of similar or like kind to goods
of similar or like kind as well.
COMMENT
1. Stated need for the bill
According to the author:
While the Gender Tax Repeal [A]ct [and] the Jesse Unruh Civil
Rights [A]ct have provided protections to consumers against
gender based pricing on consumer services, there has been no
such evidence of the act being used by private individuals to
protect against gender pricing on consumer goods. Recent
reports have suggested that women often pay more than men for
products marketed toward them or made for women. Often times,
these products are identical or very similar to men's
products. This price difference has been evidenced across our
economy from products marketed towards children, adult
clothing, hygienic products and senior care products.
This bill extends protections against gender pricing for
services, as specified under the Gender Tax Repeal Act, to
consumer goods [ . . . ] .
2. Reports reflect that gender-based price discrimination
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remains a problem despite protections of the Unruh Civil
Rights Act and the Gender Tax Repeal Act
As stated by the author, above, this bill seeks to extend
existing law protections against gender-based price
discrimination protections for services under the Gender Tax
Repeal Act to consumer goods.
When the Gender Tax Repeal Act was first enacted in 1995 (AB
1100 (Speier, Ch. 866, Stats. 1995)), proponents relied in part
on data gathered in conjunction with a 1994 interim hearing by
the Assembly Committee on Consumer Protection, Governmental
Efficiency & Economic Development on gender discrimination in
the pricing of products and services documenting that "adult
women effectively pay a gender tax which costs each woman
approximately $1,351 annually, or about $15 billion for all
women in California. The gender tax is the additional amount
women pay for similar goods and services due to gender-based
discrimination in pricing." (Sen. Judiciary Com., analysis of
AB 1100 (1995-1996 Reg. Session), Aug. 22, 1995, p. 5.) Several
other studies, books, and reports further documented
gender-based discrimination in pricing, including, among others,
a 1992 study by the New York City Department of Consumer
Affairs, "Gypped by Gender." Additionally, the Committee noted
that a survey of businesses in five major California cities by
the Assembly Office of Research (AOR) in 1994, Survey of
Haircuts & Laundry Services in California," found that "women in
California pay on the average $5 more for a haircut and $1.71
more to have a shirt laundered. The AOR survey also found that
64 percent of those establishments surveyed in five major
California cities charged more to launder a woman's white cotton
shirt than a man's." (Id.)
In support of this bill, the proponents now cite a December 2015
report by the NewYork City Department of Consumer Affairs,
entitled "From Cradle to Cane: The Cost of Being a Female
Consumer." As summarized by the author, after looking at nearly
800 products with clear male and female versions from more than
90 brands sold at two dozen New York City retailers, both online
and in stores, the 2015 report reflects the following:
[ . . . ] 42 [percent] of the time, women's products cost
more than similar products for men and on average cost 7
[percent] more. Specifically:
7 percent more for toys and accessories
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4 percent more for children's clothing
8 percent more for adult clothing
13 percent more for personal care products
8 percent more for senior/home health care products.
In all but five of the 25 product categories analyzed,
products for female consumers were priced higher than those
for male consumers.
Some of the highest price differences were for products that
are arguably necessities.
Women's shampoo and hair conditioner cost an average of 48
[percent] more. Supports and braces cost 15 [percent] more,
personal urinals cost 21 [percent] more, and canes cost 12
[percent] more. Often times the price differences were
egregious. A red scooter labeled for boys was 25 dollars,
while an identical pink scooter labeled for girls was 50
dollars, a 100 [percent] price difference.
3. Unruh Civil Rights Act arguably makes gender-based price
discrimination unlawful
California law, the Unruh Civil Rights Act, prohibits business
establishments from discriminating against any individual on the
basis of certain characteristics such as sex, race, and national
origin. (Civ. Code Sec. 51.) That act has been interpreted to
prohibit all acts of "arbitrary discrimination" by a business
establishment in the provision of goods and services and the
offering of accommodations. (O'Connor v. Village Green Owners
Assn. (1983) 33 Cal.3d 790; Harris v. Capitol Growth Investors
XIV (1991) 52 Cal.3d 1142.)
With respect to gender discrimination, specifically, in Koire v.
Metro Car Wash (1985) 40 Cal.3d 24, the California Supreme Court
held that two specific acts of gender price discrimination
constituted arbitrary discrimination: a "Ladies Day" at a car
wash during which women paid less for a car wash than men, and a
"Ladies' Night" at a bar, during which women could be admitted
to the bar for free, but men had to pay a cover charge. The
Koire court concluded its opinion with a broad statement about
the illegality of gender price discrimination, stating that:
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"[t]he plain language of the Unruh Act mandates equal provision
of advantages, privileges and services in business
establishments in this state. Absent a compelling social policy
supporting sex-based price differentials, such discounts violate
the Act." (Id. at 38.)
As such, existing law, the Unruh Civil Rights Act, arguably
prohibits gender-based price discrimination, irrespective of the
Gender Tax Repeal Act, not only with respect to services, but
with respect to goods and other business accommodations as well.
Indeed, when this Committee first reviewed and approved the
Gender Tax Repeal Act's enabling legislation, AB 1100 (Speier,
Ch. 866, Stats. 1995), the Committee analysis noted that the
"clear statement by the [Koire] Court about the illegality of
gender price discrimination" made it "difficult to claim that
the persistence of gender discrimination is because of an
ambiguity in present law. Rather, it appears clear that there
is inadequate enforcement of existing law, and inadequate
education efforts to inform businesses and consumers about the
illegality of this practice." (Sen. Judiciary Com., analysis of
AB 1100 (1995-1996 Reg. Session), Aug. 22, 1995, p. 6.) That
being said, proponents asserted that an explicit prohibition
against gender-based pricing discrimination was needed to
clarify the Unruh Civil Rights Act and to try to address the
persistent problem of gender-based discrimination in the sale of
services, particularly in relation to haircuts, laundry, dry
cleaning, and alterations. (Id. at 5. See also Comment 2 for
more about the documented prevalence of gender-based price
discrimination at the time AB 1100 was enacted.) This bill now
seeks to explicitly prohibit gender-based price discrimination
for goods, based on similar information documenting that
gender-based price discrimination persists among businesses in
the context of consumer goods.
In support of the bill, the Older Women's League (OWL)
Sacramento Capitol writes that by prohibiting retailers from
pricing consumer goods marketed to women higher than the similar
or identical men's products, this bill "would at the very least,
let all shoppers know of variances in pricing of basic
necessities[,] such as razors, toys, clothing, and care products
that are marketed to women that cost more than the identical
products for men." Also in support, the Equal Rights Advocates
adds:
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The combination of gender-based differences in consumer prices
and the gender wage gap is a double-edged sword: Women face
higher expenses than men and at the same time are paid less.
Women working full-time in California make an overall average
of 84 cents on the dollar when compared to full-time working
men, and the wage gaps are far worse for women of color, with
Latinas and African American women making median annual
earnings equal to just 43 cents and 63 cents, respectively,
for every dollar earned by white, non-Hispanic men. The
injustice of lower wages is further compounded when we examine
how everyday consumer products are commonly priced nearly
13[percent] more when marketed to women. Gender pricing led to
women paying an average of $1,351 more than men per year on
goods and services in 1994. Adjusting for inflation, that
number is now $2,161. This means that on top of losing $39
billion a year to the gender wage gap, Californian women and
girls are collectively spending in excess of $41 billion more
than boys and men to purchase things that everyone needs.
[Emphasis in original.]
4. This bill would extend the Gender Tax Repeal Act's
gender-based price discrimination prohibitions for services to
goods
As noted in Comment 3 above, the Gender Tax Repeal Act currently
applies only to gender-based price discrimination for services,
whereas the Unruh Civil Rights Act arguably would prohibit
gender-based price discrimination more broadly. When AB 1100
(Speier, Ch. 866, Stats. 1995) was first considered, it was
intentionally limited to services offered by businesses because
of a veto by then-Governor Pete Wilson of a similar bill the
prior session, AB 2418 (Speier, 1994), which would have applied
to prohibit gender-based price discrimination for both goods and
services.
At the time, this Committee specifically noted the narrow
application of AB 1100 to the provision of services and
questioned whether the bill should instead apply to any business
practice to which the Unruh Civil Rights Act would apply,
warning that:
By limiting the application of this new specific
discrimination section to services, this bill would probably
be interpreted as having amended sub silentio the general
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prohibition in the Unruh Act, such that it no longer would
prohibit gender price discrimination for non-services.
This bill's limitation to services clearly excludes
application of this bill to the sale of goods. . . . In
addition to excluding goods, this bill might also not apply to
the offering of accommodations, which is the traditional
purview of private discrimination statutes like the Unruh
Civil Rights Act. One of the instances addressed by Koire
demonstrates the potential problem: is a cover charge to enter
a bar a "service?" Certainly it is not a service in the sense
that performing a haircut or a car wash is. (Id. at 9.)
While the Committee analysis noted the exclusion of goods might
have a less significant impact "because most pricing practices
for goods could probably be justified as being non-arbitrary and
based on a permissible factor," it also cautioned that insofar
as gender-based pricing still occurs (such as where bars
advertise nights during which the price of beer was less for
women than for men) there is cause for concern that such
practices might be made legal by the bill's limitation to
services. (Id.)
Seeking to now extend the protections of the Gender Tax Repeal
Act to goods, the sponsor of this bill, the Consumer Federation
of California, provides a recent example that suggests, even 21
years later, it is still not safe to assume that most pricing
practices for goods are non-arbitrary and based on a permissible
non-gender based factor:
According to a recent Washington Post article, Why you should
always buy the men's version of almost anything, "Radio Flyer
sells a red scooter for boys and a pink scooter for girls.
Both feature plastic handlebars, three wheels and a foot
brake. Both weigh about five pounds?The only significant
difference is the price?Target listed one for $24.99 and the
other for $49.99." The pink scooter, which only differed in
color, was priced $25 higher than the red scooter.
The sponsor emphasizes that, "[a]ccording to federal Census
data, women still earn 21 [percent] less than men working in
similar full-time jobs. The injustice of lower wages is further
compounded when we examine how everyday consumer products are
commonly priced nearly 13 [percent] more when marketed to women.
For products that do not differ in the labor, materials and
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related costs of production, it is unfair to charge more based
on the gender of the consumer to whom it is marketed."
As a matter of public policy, by ensuring that the Gender Tax
Repeal Act applies to goods, as well as services, the bill
arguably aligns the express prohibitions in that Act more
closely with the broader Unruh Civil Rights Act prohibitions
against arbitrary discrimination on the basis of gender.
Notably, any violations of this bill would not only be identical
to those that are currently available under the Gender Repeal
Tax Act, but they would also generally parallel any existing
remedies that would be available if a gender-based price
discrimination claim with respect to goods was to be brought and
prevailed upon under the Unruh Civil Rights Act, today.
5. Amendment to ensure price differences would be permitted if
based on labor, materials, tariffs, or other gender-neutral
reasons
As is true under existing law, under this bill, any price
difference would have to be based on gender to be in violation
of Gender Tax Repeal Act. However, whereas current law provides
that any differences based specifically upon the amount of time,
difficulty, or cost of providing the services are permissible,
no such correlating language exists to apply to price
differentials in goods based on time, difficulty, or cost of
providing the goods (including, presumably, manufacturing
costs). In light of this inconsistency and to address many of
the concerns raised by the opposition (discussed further in
Comment 6, below), the author offers the following amendment to
ensure that price differences can still be based on
gender-neutral factors, such as labor, materials, and tariffs:
Author's amendment
On page 2, after line 11, insert "(d) Nothing in paragraph (2)
of subdivision (b) prohibits price differences based
specifically on the labor, materials, tariffs or other gender
neutral reasons for having increased cost for providing the
goods.
6. Opposition concerns
The California Retailers Association, in opposition, asserts
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that SB 899 is unworkable and will "inevitably result in
confusion, inaccurate pricing, and increased costs to businesses
in California." Specifically, the California Retailers
Association raises two primary concerns that relate to: (1)
issues surrounding product pricing; and (2) lack of clarity as
to what constitutes "similar" products. As noted further below,
the California Grocers Association, the California Chamber of
Commerce, and a coalition including the New Car Dealers
Association, Consumer Specialty Products Association, Grocery
Manufacturers of America, TechNet, and the Toy Industry
Association, have also raised similar concerns in opposition to
the bill. Many of the organizations in opposition, including
the Civil Justice Association of California, have also raised
concerns that this bill will lead to increased litigation.
Staff notes that some of the opposition letters do not reflect
the March 31, 2016 amendments to this bill, but this analysis
includes any arguments made in those letters that still pertain
to the current bill. Notably, in response to concerns relating
to the prior version of the bill, the March 31, 2016 amendments
removed all of the bill's price-list provisions to address some
of the prior opposition concerns.
a. Product pricing
The California Retailers Association writes in opposition to
the bill that pricing can differ for products targeted to
women for reasons relating to factors such as cost of design,
development, and marketing. Specifically, the association
writes that:
Pricing takes into account many factors including the cost
of design, development, labor, packaging, shipping,
tariffs, marketing and merchandising. These costs can and
do differ between products targeted for men and those
targeted for women. For example, sizing, design and
packaging are more significant factors in purchasing
decisions for women in some product areas, particularly
clothing, than they are for men. In some cases,
significant costs are incurred in the design process when a
product is intended primarily for women. Of course, size
differences can result in significant differences in cost
of material, labor, packaging, shipping and merchandising.
[ . . . ] Offering customers a wide range of options is
why so many sell not only national brands but have their
own private label products to offer at a lower price point.
Retailers also maintain loyalty programs which offer[
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]frequent shoppers discounted prices that this bill does
not consider. Finally, gender is not a variable that is
incorporated into the pricing process.
A coalition of organizations opposing the bill, including the
California New Car Dealers Association, California Retailers
Association, Consumer Specialty Products Association, and the
Grocery Manufacturers of America, asserts that the bill "would
require the supply chain in its entirety to maintain different
pricing standards for California than other states and
disregards the factors that result in a price difference for a
product. SB 899 leaves thousands of products open to numerous
threats of litigation depending on where price differences may
occur. Each entity involved in the production and sale of
these products would have to document and track each
difference to develop a substantial defense case should price
differences be challenged."
To address these concerns, the author has taken an amendment,
discussed in Comment 5, above, that will clearly indicate that
gender-neutral reasons for price differences are not in
violation of this bill. While the amendment specifically lists
price differences based on labor, materials and tariffs as
gender-neutral reasons, it also recognizes that there can be
other gender-neutral reasons for price differences.
b. Product similarity and gender stereotyping
Under this bill, businesses would be prohibited from
discriminating against a person, with respect to the price
charged for goods of similar or like kind, because of the
person's gender. Many of the opponents, including the
California Grocers Association (CGA), write that the goal of
the bill to create equality for products of a similar or like
kind is good, but that the bill lacks clarity and would leave
businesses open to civil suits.
CGA argues that in contrast to goods, services of a similar or
like kind "may be easy to identify," giving an example of a
hair salon where "a haircut is a haircut is a haircut,
regardless if the scissors are cutting a man's hair or a
woman's hair. The service is the same and there is only one
option at a hair salon for a 'Basic Haircuit'. In this case
it is cut and dry." In contrast, CGA writes that a grocer may
offer many goods that might be considered of a similar or like
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kind "at a multitude of different prices, based on a number of
different variables." For example, CGA notes razors within
the same brand might have the same price for both the men's
and women's razors, but have a higher price than another brand
has for a similar razor-would they then be in violation of the
bill? Which razor would be the basis upon which all others
would be judged? CGA raises similar questions with respect to
magazines and greeting cards-would they have to sell all
fashion magazines at the same price where Esquire is sold for
$4.99 and Cosmo for $3.99? Would all birthday cards be of
"similar or like kind" regardless of the card itself?
Similarly, the California Retailers Association writes in
opposition because the bill "offers no guidance as to what
standard measures a product's 'similarity'":
In the context of the retail industry, while some items
appear the same, there are often differences that may
account for the price differences. Razors for example
could offer additional features or be different in size.
Similarity is more easily understood in connection with
services such as dry cleaning a man's or woman's shirt, or
providing a haircut to a woman or man. When applied to
goods there are endless ambiguities. Are all shirts
similar or only shirts with the same design, construction,
material, place of production, branding or size? Would the
method of manufacture (Hand Made in Napa Valley vs. Machine
Made in China) or a "prestige" location of manufacture
(ie., Made in Italy) be a factor?
The bill also offers no guidance as to what goods are
considered gender-specific and therefore subject to the
law. For example, would a scented soap be considered a
"women's product" requiring price equality amongst all
other soaps including unscented soaps? Is a pink towel
necessarily a "female" product? Are all black, blue, green
or other dark colored towels "male" products? We are
concerned about the implications of being required to
gender-identify all products. This seems like a step
backward in a community in which we are working to
eliminate gender bias.
Other opponents, including a coalition of the California New
Car Dealers Association, California Retailers Association,
Consumer Specialty Products Association, Grocery Manufacturers
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of America, TechNet, and the Toy Industry Association echo
these concerns, writing that even assuming that determinations
could be made as to which products are considered similar and
which are considered gender-specific, "SB 899 would require an
unprecedented collaboration between buyers, vendors,
manufacturers, and retailers. Within the complex supply chain
that exists today, numerous buyers are purchasing the products
making it impossible to coordinate the pricing of these goods
when placed on the retail market. Furthermore, it would be
virtually impossible to ensure that the retail price of a
product for 'women' would be the same as a similar 'mens'
product sourced by another buyer, from another vendor, in
another market. SB 899, though well intentioned, could not be
reasonably complied with, especially operating in a global
marketplace."
The California Chamber of Commerce argues that "[i]n order to
avoid litigation and costly statutory penalties/damages, a
retailer or grocer will essentially have two choices under
this bill: (1) try to decipher between which goods are male
products versus female products and price such goods that are
'similar or like kind' to the same higher amount; (2) or
simply increase the price for every good that is 'similar or
like kind' to the same higher amount. Neither of these
options are beneficial to the consumer." The Chamber also
argues that it is not necessarily easy to identify certain
products as male versus female and that it would in fact be
harmful to identify toys as girl versus boy, pointing to a
study that warns "such gender stereotyping encourages the
notion that boys and girls are different and 'lies at the core
of many of our social processes of inequality.'" The Chamber
argues that this bill will force retailers and grocers back
into gender stereotyping in order to make sure they do not
charge a consumer a higher price for a female product versus a
male product of a similar or like kind.
In response to these concerns, the author offers the following
amendments to clarify that businesses are prohibited from
discriminating with respect to the price charged for goods of
a substantially similar (instead of similar) or like kind, and
provides a definition for what might constitute "substantially
similar" goods.
Author's amendments
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On page 2, line 5, strike "(b)" and insert "(b)(1)"
On page 2, line 6, strike "goods or"
On page 2, after line 8, insert "(2) No business
establishment of any kind whatsoever may discriminate, with
respect to the price charged for goods of a substantially
similar or like kind, against a person because of the
person's gender."
On page 2, line 9, strike "in subdivision (b)" and insert
"in paragraph (1) of subdivision (b)"
On page 2, before line 12, insert "(e) (1) For purposes of
subdivision (b)(2), goods may be of a substantially similar
or like kind if the goods:
(A) Share the same brand;
(B) Share the same functional components; and
(C) Share 90% of the same materials or ingredients.
(2) "Goods" shall not include any food product as defined
by 12502 of the Food and Agricultural Code."
On page 2, line 12, renumber "(d)" to "(f)" and strike
"subdivision (f)" and insert "subdivision (h)"
On page 2, line 17, renumber "(e)" to "(g)"
On page 2, line 20, renumber "(f)" to "(h)"
As such, using the example of razors raised by both the CGA
and the California Retailers Association, a consumer should be
able to rely on the fact that, under this bill, a package of
blue razors and a package of pink razors that both are of the
same brand, disposable, containing twin blades, and sold in
the same physical packaging, in the same amount (e.g., 12 to a
pack), will share the same base price at the same store.
However, if the same company sells razors under the same
brand, with the same twin blade features, but with a special
grip handle made of steel as opposed to plastic, the consumer
could feasibly be charged a higher price as those goods are
not "substantially similar." Similarly, even where the brand
and functional components of two similar "goods" are the same,
and 90 percent of the materials are the same, if five percent
of the materials are of a material or ingredient so expensive
(such as gold), then the products would not be considered
"substantially similar" under these amendments and the
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amendment taken under Comment 5 (allowing for price
differences based on gender-neutral reasons, such as
materials). These amendments also clarify that otherwise
similar razors of different brands would not have to be price
matched.
Lastly, in response to arguments that the bill would lead to
harmful gender stereotyping or that this bill will lead to
costly litigation, the author responds:
Retailers and Grocery stores are already engaging in the
gender stereotyping of goods. Products that are
substantially similar to each other are often labeled for
men or for women. The very problem we are trying to address
is when they charge more from one product or the other when
they are substantially similar. If the products were not
gendered to begin with, then there would be no price
differences between similar products and there would be no
cause of action to bring.
[Furthermore, t]he Gender Tax Repeal Act has not resulted
in numerous frivolous lawsuits. The one example the
opposition sites, Reese v. Wal-Mart, was dismissed by the
court. Remedies are limited to triple the costs of the
damages, and no less than 4,000 dollars. In addition,
theoretically the Unruh Civil Rights Act already prohibits
gender pricing discrimination for goods. When the Gender
Tax Repeal Act of 1995 passed, the California Supreme Court
had already recognized by 1987 in Koire, 40 Cal.3d 24, that
the Unruh Civil Rights Act prohibited gender pricing in
services. Despite the court ruling, gender price
discrimination was still prominent across the service
industry. The 1995 act was intended to send a clear
message that gender based pricing is prohibited. This bill
would send an equally clear message that the Unruh Civil
Rights Act prohibits gender price discrimination for
consumer goods.
Support : American Civil Liberties Union of California;
California Alliance for Retired Americans; California Immigrant
Policy Center; California Public Interest Research Group
(CALPIRG); California Rural Legal Assistance Foundation;
Consumers for Auto Reliability and Safety; Equal Rights
Advocates; Let Toys Be Toys; Mujeres Unidas y Activas; Older
SB 899 (Hueso)
Page 16 of ?
Women's League (OWL) Sacramento Capitol; Planned Parenthood
Affiliates of California; UDW/AFSCME Local 3930; Women's
Foundation of California; two professors
Opposition : California Chamber of Commerce; California Grocers
Association; California New Car Dealers Association; California
Retailers Association; Civil Justice Association of California;
Consumer Specialty Products Association; Grocery Manufacturers
of America; TechNet; Toy Industry Association
HISTORY
Source : Consumer Federation of California
Related Pending Legislation : None Known
Prior Legislation :
AB 1088 (Jackson, Ch. 312, Stats. 2001) See Background.
AB 1100 (Speier, Ch. 866, Stats. 1995) See Background and
Comment 3.
AB 2418 (Speier, Stats. 1994) See Background and Comment 3.
SB 1288 (Calderon, Ch. 535, 1994): (1) directed the Department
of Consumer Affairs (DCA) to provide notices to licensed barbers
and cosmetologists to remind them that the Unruh Civil Rights
Act prohibits gender-based pricing practices; (2) required DCA
to prepare a summary of gender price discrimination-related
complaints received by its licensing boards; (3) required DCA to
make available to the public consumer information on
gender-based pricing; and (4) quadrupled the minimum amount of
punitive damages awardable to a plaintiff in a claim under the
Unruh Civil Rights Act.
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