SENATE RULES COMMITTEE
Office of Senate Floor Analyses
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SB 600
THIRD READING
Bill No:
Author:
Amended:
Vote:
SB 600
Pan (D), et al.
5/4/15
21
SENATE JUDICIARY COMMITTEE: 5-2, 5/12/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SUBJECT: Discrimination: citizenship: language: immigration status
SOURCE: California Civil Rights Coalition
Mexican American Legal Defense and Educational Fund
DIGEST: This bill adds citizenship, primary language, and immigration status to
the list of protected classes under the Unruh Civil Rights Act (Unruh Act), except
that a verification of immigration status and any discrimination based upon verified
immigration status, where required by federal law, shall not constitute an Unruh
Act violation. This bill also specifies that the inclusion of these classifications
under the Unruh Act does not constitute a change in, but is declaratory of, existing
law.
ANALYSIS:
Existing law:
1)
Prohibits, under the Fair Employment and Housing Act (FEHA),
discrimination in housing and employment on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and veteran status. (Gov.
Code Sec. 12920 et seq.)
2)
Provides, under FEHA, that it is an unlawful employment practice
for an employer to adopt or enforce a policy that prohibits the use of any
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language in the workplace, except if that policy is justified by “business
necessity” and prescribed notice of the policy and consequences for violation of
the policy is given to employees, as specified. (Gov. Code Sec. 12951.)
3)
Provides, under the Unruh Act, that all persons in California are
free and equal, and regardless of a person’s sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic information, marital
status, or sexual orientation, everyone is entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in all business
establishments. (Civ. Code Sec. 51.)
This bill:
1)
Adds citizenship, primary language, and immigration status to the
list of characteristics protected under the Unruh Act.
2)
Specifies that a verification of immigration status and any
discrimination based upon verified immigration status, where required by
federal law, shall not constitute a violation of the Unruh Act.
3)
Provides that these additions to Unruh Act do not constitute a
change in, but are declaratory of, existing law; and provides that it is not the
intent of the Legislature in amending Unruh Act to affect the protected status of
any other classification, whether or not expressed in the Unruh Act statute.
Background
California law, FEHA and the Unruh Act, prohibit discrimination in employment,
housing, public accommodation, and services provided by business establishments
on the basis of specified personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes have evolved to include
other characteristics such as medical condition, marital status, sexual orientation,
and genetic information to generally reflect the state’s public policy against
discrimination in all forms. The Unruh Act is meant to cover all arbitrary and
intentional discrimination by a business establishment on the basis of the personal
characteristics listed above, whereas FEHA is the principal California statute
prohibiting employment and housing discrimination covering employers, labor
organizations, employment agencies, apprenticeship programs, and any person or
entity, who aids, abets, incites, compels, or coerces the doing of a discriminatory
act.
Unlike the Unruh Act, however, FEHA expressly provides that it is also an
unlawful employment practice for an employer to adopt or enforce a policy that
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prohibits the use of any language in the workplace. (Gov. Code Secs. 1290012996; there is an exception to this general rule where the policy is justified by
business necessity and prescribed notice of the policy and consequences for
violation of the policy is given to employees.)
The California Supreme Court has consistently held that the Unruh Act provides
broad protection to all persons who are arbitrarily discriminated against by
business establishments. Beginning in the 1950’s the court found that the State
Board of Equalization acted illegally by suspending the license of a bar and
restaurant merely because it allowed patronage by gay people whom the licensor
saw as “immoral.” (Stoumen v. Reilly (1951) 37 Cal.2d 713.) In 1970, the court
held that the Unruh Act forbids a business establishment that is generally open to
the public from arbitrarily excluding a prospective customer (In re Cox (1970) 3
Cal.3d 205.) This case was followed by Marina Point, Ltd. v. Wolfson (1982) 30
Cal.3d 721, which found that a landlord’s “no children” policy was arbitrary
discrimination based on familial status that violated the Unruh Act. In all of these
cases, the court engaged in statutory analysis of the Unruh Act and determined the
“past judicial interpretation of the act, and the history of legislative action that
extended the statutes’ scope, indicate that identification of particular bases of
discrimination - color, race, religion, ancestry, and national origin . . . is illustrative
rather than restrictive. Although the legislation has been invoked primarily by
persons alleging discrimination on racial grounds, its language and its history
compel the conclusion that the Legislature intended to prohibit all arbitrary
discrimination by business establishments.” (See In re Cox, 3 Cal.3d at 216.)
Nonetheless, on several occasions, the state has approved expanding the Unruh Act
to expressly cover new classifications. In 2005, AB 1400 (Laird, Chapter 420,
Statutes of 2005) specified that discrimination based on marital status and sexual
orientation would not be tolerated in California by adding those classifications to
Unruh Act. The purpose of that legislation was to address repeated complaints
from individuals and attorneys representing victims of discrimination based on
marital status and sexual orientation who claimed difficulty enforcing these
protections because they were not expressly specified in the law. In 2011, AB 887
(Atkins, Chapter 719, Statutes of 2011) was enacted to expressly add “gender
identity” and “gender expression” throughout both the Unruh Act and FEHA and
to define “gender expression” to mean a person’s gender-related appearance and
behavior whether or not stereotypically associated with the person’s assigned sex
at birth. Also in 2011, SB 559 (Padilla, Chapter 261, Statutes of 2011) was
enacted to add genetic information to both the Unruh Act and FEHA, as well as
other anti-discrimination statutes.
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Notably, in 1999, AB 407 (Cedillo), also sponsored by the Mexican American
Legal Defense and Educational Fund, sought to add discrimination based on
immigration status to the Unruh Act, among other things. That bill was ultimately
vetoed by then-Governor Davis, because “all residents of California, regardless of
immigration status, are already protected from discrimination based in their
personal characteristics, specifically ethnic origin and nationality.” Prior bills have
also sought to expressly add language to the Unruh Act and have similarly been
vetoed.
This bill now seeks to add citizenship, primary language, and immigration status as
protected classifications under the Unruh Act.
Comment
According to the author:
The United States Supreme Court has previously held that citizenship and
language are not the same as national origin, and that federal protections against
discrimination on the basis of these characteristics is not covered by
constitutional provisions and laws barring national origin discrimination. Thus,
in Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973), the Court held that Title VII
of the Civil Rights Act of 1964, which prohibits employment discrimination on
the basis of national origin, does not prohibit employment discrimination on the
basis of citizenship. More recently, in Hernandez v. New York, 500 U.S. 352
(1991), the Supreme Court [ . . . ] concluded that constitutional protections
against jury exclusion on the basis of race and national origin do not protect
against discrimination on the basis of language. In both cases, while there were
indications that citizenship and language were closely linked with ethnicity, the
Court rejected inclusion of either in the covered category of national origin.
Neither case has been overruled, and both remain binding [as a matter of
federal] law.
While courts have construed the Unruh Act in California law broadly and
liberally, it is not clear that discrimination on the basis of characteristics that are
not innate or related to personal appearance would be construed as covered. In
Harris v. Capitol Growth Investors XIV, 52 Cal.3d 1142 (1991), the California
Supreme Court, in rejecting application of the Unruh Act to financial
classifications, stated:
[ . . . ] Although our decisions have occasionally recognized additional
categories of prohibited discrimination (e.g., physical appearance and family
status), those categories were based on personal characteristics of
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individuals that bore little or no relationship to their abilities to be
responsible consumers of public accommodations. Id. at 1148.
[As a result, the] concern is that citizenship, language and immigration status -which are theoretically changeable for all persons -- would be construed as
more like the economic distinctions in Harris and less like the largely
immutable characteristics listed in the statute and unlike the characteristics of
personal appearance having no rational relationship to any basis for distinction
in business establishments.
FISCAL EFFECT: Appropriation: No
Fiscal Com.:
No
Local: No
SUPPORT: (Verified 5/12/15)
California Civil Rights Coalition (co-source)
Mexican American Legal Defense and Educational Fun (co-source)
American Federation of State, County and Municipal Employees
Anti-Defamation League
Asian Americans Advancing Justice – Sacramento
ASPIRE
California Immigrant Policy Center
California Rural Legal Assistance Foundation, Inc.
California Teachers Association
Center on Race, Poverty & the Environment
Coalition for Humane Immigrant Rights of Los Angeles
Consumer Attorneys of California
Friends Committee on Legislation of California
Immigrant Youth Justice Alliance
Immigration Center for Women and Children
National Association of Social Workers
Services Immigrant Rights, and Education Network
OPPOSITION: (Verified 5/12/15)
None received
ARGUMENTS IN SUPPORT: As stated by the Mexican American Legal
Defense and Educational Fund, co-sponsor of this bill:
The Unruh Act has long ensured that California businesses do not engage in
arbitrary discrimination. While the California Supreme Court has held that the
listed prohibited grounds for discrimination are “illustrative rather than
restrictive,” In re Cox, 3 Cal. 3d 205, 216 (1970), it has also concluded that the
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prohibited discrimination must be similar to the kinds of characteristics listed in
the statute. Thus, in rejecting coverage of discrimination on the basis of
financial or economic status, the Court held that the Unruh Act prohibits
discrimination based on “the classifications listed in the Act . . . or similar
personal traits, beliefs, or characteristics that bear no relationship to the
responsibilities of consumers of public accommodations.” Harris v. Capital
Growth Investors XIV, 52 Cal.3d 1142, 1169 (1991).
While many might conclude that citizenship, primary language, and
immigration status are personal characteristics like those specified in the act,
others might well determine that these characteristics, which are changeable
and, in other circumstances, relevant considerations under the law, are more
akin to the financial and economic status addressed in Harris. It helps no one –
least of all the businesses required to comply with the Unruh Act – to require
Californians to parse court opinions to reach a debatable conclusion about how
to comply with the law.
[ . . . ] In an age when too many political leaders engage in unduly harsh,
judgmental, and dehumanizing rhetoric about immigrants, California should
provide clear notice to business proprietors that they cannot allow overheated
political demagoguery to lead them to the erroneous conclusion that they may
discriminate in public accommodations.
Prepared by: Ronak Daylami / JUD / (916) 651-4113
5/15/15 15:52:43
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