BILL ANALYSIS �
AB 1364
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Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Nora Campos, Chair
AB 1364 (Campos) - As Amended: April 4, 2011
SUBJECT : Licensed talent agencies: representation
SUMMARY : Expands the list of criteria based upon which a
talent agency may not discriminate in their representation of
artists. Specifically, this bill : Prohibits any talent agency
licensee from refusing to represent any artist because of that
artist's sex, race, color, religion, ancestry, national origin,
disability, marital status, or sexual orientation.
EXISTING LAW
1)States that all persons within the jurisdiction of this state
are free and equal and no matter what their sex, race, color,
religion, ancestry, national origin, disability, or medical
condition and are entitled to the full and equal
accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever. �Civil Code Section 51(b).]
2)Provides that no person shall engage in or carry on the
occupation of a talent agent or agency without first obtaining
a license from the Labor Commissioner (LC). (Labor Code
Section 1700.5.)
3)States it is unlawful for any talent agency licensee to refuse
to represent any artist on account of the artist's race,
color, creed, sex, national origin, religion or handicap.
(Labor Code Section 1700.47.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement and Support : According to the author, a
"Talent Agency" is a person or corporation that procures
employment for artists. While they are not employers, agents
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play a critical role in the hiring of actors, writers,
directors and other talent. The activities of Talent Agents
are regulated by the LC, who issues licenses for agents. One
of the license requirements for talents agents is that they
may not discriminate against persons seeking representation.
The civil rights provisions of the Talent Agents Act (TAA)
have not been modernized since it adoption in the 1980's. The
purpose of AB 1364 is to update the TAA to include modern
protections under the Unruh Civil Rights Act which have become
accepted standards of law since the TAA was written into law
in the 1980's.
2)Recent Amendments Substitute Unruh Civil Rights Act Protected
Classifications For Those in the Fair Employment and Housing
Act (FEHA) : As originally drafted, AB 1364 would have
imported the list of protected categories of persons under
FEHA of the Government Code into the TAA. The Association of
Talent Agents raised objection, based upon the fact that that
they are not employers, and their concern that the reference
to the FEHA could create confusion on that point. The author
agreed to amend the language to instead import the civil
rights protections in the Unruh Civil Rights Act of Civil
Code.
The difference in application between the two provisions in
law may be summarized as follows; under the Government Code,
employment and housing activities are regulated. Under the
Civil Code, full and equal rights of all persons to
accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever are guaranteed.
3)Statutory Background and Relevant Case Law : The Labor Code
establishes that "It shall be unlawful for any licensee
(talent agent) to refuse to represent any artist on account of
that artist's race, color, creed, sex, national origin,
religion, or handicap." (Labor Code Section 1700.47.) This
section was added to "provide protection to the artist against
breaches of these fundamental civil rights." (1986 Report of
the California Entertainment Commission, at 34.) The list of
protected categories has not been updated since its original
adoption into law in 1986.
Recently, allegations arose that some talent agencies had
colluded with television networks and movie studios to
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discriminate against writers over the age of 40, in violation
of the Unruh Civil Rights Act and FEHA. �Alch v Superior
Court (2004) 122 Cal. App. 4th 339.] The resulting lawsuit
gave rise to a $70 million dollar settlement on behalf of the
writers.
The question arises whether the Unruh Act reaches age
discrimination, because "age" is not an articulated class, and
if not, why AB 1364 does not include "age" in its list of
protected classes imported into the TAA. The author states
that, "the Unruh Act does cover age discrimination, through
the court's interpretations of the Unruh Act. And it is
unnecessary to list all of the classes which courts have found
covered under the Unruh Act."
In fact, courts have found age discrimination covered under
the Unruh Civil Rights Act. In Alch, the court expressly
stated that, "it is undisputable that the (Unruh) Act reaches
age discrimination," (citations omitted). Indeed, the
California Supreme Court has held that, "the (Unruh) Act bars
all types of arbitrary discrimination; its reference to
particular bases of discrimination is illustrative rather than
restrictive." �Alch, id., citing Marina Point Ltd. V. Wolfson
(1982) 30 Cal.3d 721]
According to the author, "AB 1364 was introduced in order to
provide clarity and prevent future lawsuits, by updating the
TAA to expressly include certain categories of employment
protections under the Unruh Civil Rights Act in the
anti-discrimination provisions of TAA." However, as in the
Unruh Act, the purposes of the TAA are greater than the
language of the Unruh Act. The TAA is a remedial statute,
enacted to "protect artists seeking professional employment
from the abuses of talent agencies." Styne v. Stevens, 26 Cal.
4th 42, 50 (2001). Therefore the courts should give the
provisions of the Unruh Act expansive meaning.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of Talent Agents
California Communities United Institute
Opposition
AB 1364
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None known
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450