BILL ANALYSIS                                                                                                                                                                                                    





                             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
                







          SB 899 (Hueso)
          Page 14 of ? 

               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  







          SB 899 (Hueso)
          Page 15 of ? 

            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)
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          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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