BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1680|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 1680
Author: Saldana (D), et al
Amended: 8/2/10 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-1, 6/29/10
AYES: Corbett, Hancock, Leno
NOES: Harman
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 44-27, 4/29/10 - See last page for vote
SUBJECT : Civil rights: waiver of rights: Hate Crimes
Protection Act
SOURCE : Asian Americans for Civil Rights and Equality
Equality California
DIGEST : This bill imposes specified restrictions on the
future contractual waivers of rights under the Ralph Civil
Rights Act and the Bane Civil Rights Act.
ANALYSIS : Existing law, the Ralph Civil Rights Act,
provides that all persons within the jurisdiction of this
state have the right to be free from any violence, or
intimidation by threat of violence, committed against their
persons or property because of personal or other
characteristics or statuses, such as political affiliation,
sex, race, color, religion, marital status, sexual
orientation, or position in a labor dispute. (Section 51.7
CONTINUED
AB 1680
Page
2
of the Civil Code [CIV])
Existing law, the Bane Civil Rights Act, prohibits violence
or the threat of violence based on grounds such as race,
color, religion, ancestry, national origin, political
affiliation, sex, sexual orientation, age, disability, or
position in a labor dispute. (CIV Section 52.1)
Existing law provides that a person who violates the Ralph
Civil Rights Act or aids, incites, or conspires in that
act, is liable for actual damages suffered by any person
denied that right, as well as a civil penalty and
attorney's fees. (CIV Section 52(b))
Existing law provides that whenever there is reasonable
cause to believe that any person or group of persons is
engaged in conduct of resistance to the full enjoyment of
any of the foregoing rights the Attorney General, any
district attorney or city attorney, or any person aggrieved
by the conduct may bring a civil action. (CIV Section
52(c))
Existing law provides that a person whose enjoyment of
legal rights has been interfered with, or attempted to be
interfered with, may bring a civil action for damages,
including injunctive relief, and other appropriate
equitable relief. (CIV Section 52.1)
This bill enacts the Hate Crimes Protection Act.
This bill provides that no person shall require another
person to waive any legal right, penalty, remedy, forum, or
procedure for violation of the Ralph Civil Rights Act or
the Bane Civil Rights Act as a condition of entering into a
contract for the provision of goods and services, including
the right to file and pursue a civil action or complaint
with or otherwise notify the Attorney General or any other
public prosecutor or any law enforcement agency, the
Department of Fair Employment and Housing, or any court or
other governmental entity.
This bill provides that no person shall refuse to enter
into a contract with, or refuse to provide goods or
services to, another person on the basis that the other
CONTINUED
AB 1680
Page
3
person refuses to waive any legal right, penalty, remedy,
forum, or procedure for violation of these civil rights
acts.
This bill provides that the exercise of a person's right to
refuse to waive any legal right, penalty, remedy, forum, or
procedure for a violation of these civil rights laws shall
not affect any otherwise legal terms of a contract or an
agreement.
This bill requires that any waiver of any legal right,
penalty, remedy, forum, or procedure for violation of these
civil rights acts shall be knowing and voluntary, and in
writing, and expressly not made as a condition of entering
into the contract or as a condition of providing or
receiving goods and services, and that any person who seeks
to enforce such a waiver shall have the burden of proving
that it was knowing and voluntary and not made as a
condition of the contract or of providing or receiving the
goods or services.
This bill provides that the foregoing protections apply to
any agreement to waive any legal right, penalty, remedy,
forum, or procedure for a violation of these civil rights
laws entered into, altered, modified, renewed, or extended
on or after January 1, 2011.
This bill specifies that the above provisions are not to be
construed to negate or otherwise abrogate the provisions of
CIV Sections 1668 and 3513.
Related Legislation
AB 2706 (Lowenthal), 2009-10 Session, specifically adds
"homeless persons", as defined, to the list of individuals
protected from violence and intimidation under the Ralph
Civil Rights Act, thereby providing civil remedies to
homeless person who are injured as a result of such
violence. The bill is currently in the Senate
Appropriations Committee.
Prior Legislation
AB 1715 (Assembly Judiciary Committee), 2003-04 Session,
CONTINUED
AB 1680
Page
4
would have, among other things, made it an unlawful
employment practice for a covered employer to require an
employee to waive any rights or procedures under the Fair
Employment and Housing Act as a condition of employment.
The bill was vetoed by Governor Gray Davis.
SB 1538 (Burton), 2001-02 Session, would have, among other
things, made it an unlawful employment practice to require
an employee to waive any rights or procedures under the
Fair Employment and Housing Act, and would have made
unenforceable any predispute arbitration agreement between
an employer and employee that violated this prohibition.
The bill was vetoed by Governor Gray Davis.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/16/10)
Asian Americans for Civil Rights and Equality (co-source)
Equality California (co-source)
American Civil Liberties Union
American Federation of State, County and Municipal
Employees
Anti-Defamation League
The Arc of California
California Alliance for Retired Americans
California Church IMPACT
California Commission on the Status of Women
California Communities United Institute
California Conference Board of Amalgamated Transit Union
California Conference of Machinists
California Dispute Resolution Council
California Employment Lawyers Association
California Teachers Association
California Teamsters Public Affairs Council
City of West Hollywood
Consumer Attorneys of California
Disability Rights California
Engineers and Scientists of California, IFPTE Local 20
Inland Counties Stonewall Democrats
International Longshore and Warehouse Union
Jewish Community Relations Council
Mexican American Legal Defense and Educational Fund
CONTINUED
AB 1680
Page
5
National Lawyers Guild Labor and Employment Committee
Professional and Technical Engineers, IFPTE Local 21
Public Advocates
UNITE-HERE
United Food and Commercial Workers Western States Council
OPPOSITION : (Verified 7/15/10)
Association of California Insurance Companies
California Assisted Living Association
California Association of Joint Powers Authorities
California Business Properties Association
California Chamber of Commerce
California Farm Bureau
California Hospital Association
California Manufacturers and Technology Association
California Retailers Association
Civil Justice Association
Cooperative of American Physicians, Inc.
Medical Insurance Exchange of California
ARGUMENTS IN SUPPORT : The author states:
"The purpose of AB 1680, the Hate Crimes Protection Act,
is to ensure that a contract requiring the waiver of
rights or procedures under the hate crimes statute is a
matter of voluntary consent and not coercion.
"The Ralph Civil Rights Act provides civil penalties and
remedies to victims of hate-based violence and threats of
violence. A central feature of the Ralph Act affords an
individual the opportunity to file a private civil
action, as well as a complaint with the Department of
Fair Employment and Housing (DFEH).
"However, it is becoming common for contracts to mandate
wavier of these rights, including clauses that mandate
private arbitration of any legal controversy or claim. A
person who signs such a contract but later becomes the
victim of a hate crime is forced to privately arbitrate
the hate crime violation, rather than bring the civil
action to court.
"While voluntary agreements for arbitration are
CONTINUED
AB 1680
Page
6
appropriate, many contracts make accepting a mandatory
arbitration provision a condition of entering into a
contract which cannot be refused without invalidating the
entire agreement. When waiving the right to go to court
for redress under the law is made a condition of entering
into a contract, rather than as a term that can be
knowingly and freely accepted or rejected, statutory
enforcement of the rights of Californians to be free from
hate-based violence is undermined.
"AB 1680 is narrow in its scope to address only hate
crimes, not other types of employment or consumer
disputes, and to ensure that the waiver of any legal
rights under the hate crimes laws is knowing and
voluntary, not imposed as a condition of entering into
the contract. It also prohibits refusing to enter into a
contract on the basis that the other person declines to
waive his/her rights under the hate statutes. However,
the bill does not prohibit all waivers, or even all
pre-dispute waivers, when the parties voluntarily believe
it is in their interest to do so."
ARGUMENTS IN OPPOSITION : A coalition of business
interests argues against the bill, contending as follows:
"This bill would affect a situation where an individual
had voluntarily engaged in a contract with another party
that includes an agreement to resolve future disputes
through arbitration. This bill does not affect
stranger-on-stranger hate crimes, which can (and should)
be prosecuted criminally and civilly. There is no reason
that a voluntary, pre-dispute agreement to resolve a
future dispute through arbitration is unfair.
"Arbitration has evolved into a productive and useful
method of resolving disputes. In the modern economy,
organizations continue to look at more efficient ways of
conducting business. Arbitration is an alternative
method of resolving disputes derived from the need to
more efficiently handle conflicts.
"The U.S. Supreme Court and California courts support
arbitration agreements in contracts. Businesses use
arbitration to save resources and reinvest back into the
CONTINUED
AB 1680
Page
7
economy. The use of pre-dispute arbitration benefits
California and is good public policy.
"Arbitration is Quicker than Litigation. Arbitration
brings cases to resolution faster and at less expense to
both parties than traditional litigation.
"Arbitration is Less Expensive than Litigation. A
consumer or employee who participates in arbitration can
save money due to the greater expenses of a lawsuit. The
benefits also apply to employers and merchants.
Furthermore, the state benefits by shifting the caseload
to arbiters and saving taxpayers money.
"Arbitration Is More Satisfactory than Litigation. A
study conducted by the American Bar Association found
arbitration litigants were more satisfied than those
involved in lawsuits. Likewise, a survey conducted by
Dispute Resolution Times found that 83% of employees
favored using arbitration.
"Prohibiting Arbitration Agreements Puts California Out
of Step. Prohibiting these agreements would put
California out of the mainstream and place California at
an economic disadvantage.
"Arbitration is a fair, useful, cost-efficient way to
resolve disputes."
The Civil Justice Association of California (CJAC) likewise
argues:
"While CJAC agrees that the Ralph Civil Rights Act is as
deserving of vigorous enforcement as any other area of
law in California, we disagree that a consensual,
voluntary, pre-dispute agreement to resolve a future
dispute through arbitration is somehow unfair.
"This prohibition on arbitration is not only contrary to
the provisions of the Federal Arbitration Act (FAA), but
is also contrary to well-established public policy
encouraging arbitration. Arbitration agreements are
becoming increasingly favored and have worked well in
many areas. The cost and time savings of arbitration
CONTINUED
AB 1680
Page
8
offer considerable benefits to both parties."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Hall, Hayashi, Hernandez,
Hill, Huber, Huffman, Lieu, Ma, Mendoza, Monning, Nava,
V. Manuel Perez, Portantino, Ruskin, Salas, Saldana,
Skinner, Solorio, Swanson, Torlakson, Torres, Yamada,
John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Conway, Cook, DeVore, Emmerson, Fletcher, Fuller, Gaines,
Garrick, Gilmore, Hagman, Harkey, Jeffries, Knight,
Logue, Miller, Nestande, Niello, Nielsen, Silva, Smyth,
Audra Strickland, Tran, Villines
NO VOTE RECORDED: Bass, Blakeslee, Caballero, Galgiani,
Jones, Bonnie Lowenthal, Norby, Torrico, Vacancy
RJG:mw 8/16/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED