Existing law, the Unruh Civil Rights Act, states that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging a violation of the act.

This bill would enact the Stop Consumer Racial Profiling Act of 2016, which would prohibit a business establishment from using consumer racial profiling, as defined. The bill would also make the Department of Fair Employment and Housing responsible for the enforcement of the act.

This bill would incorporate additional changes to Section 12930 of the Government Code, proposed by SB 1442, to be operative only if SB 1442 and this bill are both chaptered and become effective on or before January 1, 2017, and this bill is chaptered last.

Existing law, the Unruh Civil Rights Act, states that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging a violation of the act.

This bill would enact the Stop Consumer Racial Profiling Act of 2016, which would prohibit a business establishment from using consumer racial profiling, as defined. The bill would also make the Department of Fair Employment and Housing responsible for the enforcement of the act.

Existing law, the Unruh Civil Rights Act, states that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging a violation of the act.

This bill would enact the Stop Consumer Racial Profiling Act of 2016, which would prohibit a business establishment from using consumer racial profiling, as defined. The bill would also make the Department of Fair Employment and Housing responsible for the enforcement of the act.

Existing law, the Unruh Civil Rights Act, states that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging a violation of the act.

This bill would enact the Stop Consumer Racial Profiling Act of 2016, which would prohibit a business establishment from using consumer racial profiling, as defined. The bill would also make the Department of Fair Employment and Housing responsible for the enforcement of the act.

Existing law, the Unruh Civil Rights Act, states that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging a violation of the act.

This bill would enact the Stop Consumer Racial Profiling Act of 2016, which would prohibit a business establishment from using consumer racial profiling, as defined. The bill would also make the Department of Fair Employment and Housing responsible for the enforcement of the act.

GOVERNOR'S VETO

GV Bill Id:AB 2707

Author:(Ridley-Thomas)

As Enrolled Ver:August 29, 2016

2/3 vote

Original Committee Reference: JUD.

SUMMARY: Prohibits "consumer racial profiling," as defined. Specifically, this bill:

1. Prohibits a business establishment from using "consumer racial profiling."
2. Defines "consumer racial profiling" to include the following:
   1. Profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers.
   2. Refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, race-based surveillance practices, and similar race-based practices.
3. Gives the Department of Fair Employment and Housing the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of this bill.

The Senate amendments incorporate additional changes to Section 12930 of the Government Code, proposed by SB 1442 (Liu), to be operative only if SB 1442 and this bill are both chaptered and become effective on or before January 1, 2017, and this bill is chaptered last.

EXISTING LAW:

1. Provides, under the Unruh Civil Rights Act, that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status, are entitled to the full and equal accommodations, advantages, facilities, or services of all business establishments of every kind whatsoever. (Civil Code Section (CIV) 51.)
2. Provides that no business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (CIV 51.5 (a).)
3. Provides, under federal law, that all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin. (42 United States Code Section 2000a.)

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: As much as we sometimes like to think otherwise, we have yet to obtain the "color blind" society that Justice Harlan hoped for in his powerful dissent in Plessy v. Ferguson (1896), the decision that bequeathed the infamous "separate but equal" doctrine and put the U.S. Supreme Court's stamp of legitimacy on Jim Crow segregation in the South, until the doctrine was finally rejected nearly sixty years later in Brown v. Board of Education (1954). One example of our seeming inability to be truly "color blind" is seen in what a number of scholars and commentators refer to as "consumer racial profiling" or "Shopping While Black." That is, while business establishments no longer hang "Whites Only" signs on their front doors, a number of academic studies suggest that once people of color walk inside those stores they are treated differently. For example, the Center for Popular Democracy cites studies showing that African-American customers are seven times more likely to be targeted by store clerks and security personnel as potential shoplifters than are white customers. In addition to race-based surveillance practices, consumer racial profiling may include other forms of differential treatment of customers of color, including refusing service, offering service of lesser quality, making race-based assumptions about a customer's ability to afford a product, or requiring additional forms of identification.

Existing law, the Unruh Civil Rights Act, already provides that no person shall be denied equal treatment or services in "all business establishments of any kind whatsoever" on the basis of a several enumerated characteristics, including race or color. Therefore, some of the retailer conduct that constitutes "consumer racial profiling" may already be a violation of the Unruh Civil Rights Act. However, as with any general statute, the full range of conduct that a particular word or clause might encompass is not always clear. For example, the Unruh Civil Rights Act states that all persons are entitled, regardless of race, to "full and equal accommodations, advantages, facilities, privileges, or services" in all business establishments. It seems clear that consumer racial profiling that leads to different levels of service, a removal from the facilities, or a denial of full access to facilities would be prohibited by language of the Unruh Act. However, whether these words in the Unruh Act would cover race-based surveillance is more questionable, since surveillance may not affect the "service" provided or deny equal access to the facilities. If a court were to reasonably conclude that, taken as a whole, the purpose of the Unruh Act is to guarantee equal "treatment" by business establishments, then engaging in race-based surveillance would certainly seem to constitute unequal "treatment." But the word "treatment" does not appear in the statute. In order to eliminate potential ambiguities, this bill will make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act. In addition, the bill authorizes the Department of Fair Employment and Housing (DFEH) to receive, investigate, and prosecute allegations of racial profiling. Under existing law, DFEH is given express authority to enforce a sequence of statutes in and around the Unruh Civil Rights that guarantee various civil and personal rights. This bill simply adds a new section to this sequence of statutes and then references that statute in the provisions of Government Code granting investigative and enforcement powers to the DFEH. As noted by the sponsors and supporters of this bill, expressly granting this authority to DFEH is an important component of the bill, as the non-economic nature of the harm caused by consumer racial profiling makes it less likely that a private attorney would take such a case.

GOVERNOR'S VETO MESSAGE:

This bill creates a cause of action to enforce a prohibition on racial profiling of

consumers.

The Unruh Civil Rights Act – in a more expansive way – already prohibits the racial

discrimination covered by this bill. Moreover, the state has vested in the Department of

Fair Employment and Housing a full range of strong enforcement authority, including for

those claims dealing with racial profiling.

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0005078

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2707

Author:(Ridley-Thomas)

As Amended Ver:August 4, 2016

Majority vote

Original Committee Reference: JUD.

SUMMARY: Prohibits "consumer racial profiling," as defined. Specifically, this bill:

1. Prohibits a business establishment from using "consumer racial profiling."
2. Defines "consumer racial profiling" to include the following:
   1. Profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers.
   2. Refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, race-based surveillance practices, and similar race-based practices.
3. Gives the Department of Fair Employment and Housing the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of this bill.

The Senate amendments incorporate additional changes to Section 12930 of the Government Code, proposed by SB 1442 (Liu), to be operative only if SB 1442 and this bill are both chaptered and become effective on or before January 1, 2017, and this bill is chaptered last.

EXISTING LAW:

1. Provides, under the Unruh Civil Rights Act, that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status, are entitled to the full and equal accommodations, advantages, facilities, or services of all business establishments of every kind whatsoever. (Civil Code Section (CIV) 51.)
2. Provides that no business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (CIV 51.5 (a).)
3. Provides, under federal law, that all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin. (42 United States Code Section 2000a.)

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: As much as we sometimes like to think otherwise, we have yet to obtain the "color blind" society that Justice Harlan hoped for in his powerful dissent in Plessy v. Ferguson (1896), the decision that bequeathed the infamous "separate but equal" doctrine and put the U.S. Supreme Court's stamp of legitimacy on Jim Crow segregation in the South, until the doctrine was finally rejected nearly sixty years later in Brown v. Board of Education (1954). One example of our seeming inability to be truly "color blind" is seen in what a number of scholars and commentators refer to as "consumer racial profiling" or "Shopping While Black." That is, while business establishments no longer hang "Whites Only" signs on their front doors, a number of academic studies suggest that once people of color walk inside those stores they are treated differently. For example, the Center for Popular Democracy cites studies showing that African-American customers are seven times more likely to be targeted by store clerks and security personnel as potential shoplifters than are white customers. In addition to race-based surveillance practices, consumer racial profiling may include other forms of differential treatment of customers of color, including refusing service, offering service of lesser quality, making race-based assumptions about a customer's ability to afford a product, or requiring additional forms of identification.

Existing law, the Unruh Civil Rights Act, already provides that no person shall be denied equal treatment or services in "all business establishments of any kind whatsoever" on the basis of a several enumerated characteristics, including race or color. Therefore, some of the retailer conduct that constitutes "consumer racial profiling" may already be a violation of the Unruh Civil Rights Act. However, as with any general statute, the full range of conduct that a particular word or clause might encompass is not always clear. For example, the Unruh Civil Rights Act states that all persons are entitled, regardless of race, to "full and equal accommodations, advantages, facilities, privileges, or services" in all business establishments. It seems clear that consumer racial profiling that leads to different levels of service, a removal from the facilities, or a denial of full access to facilities would be prohibited by language of the Unruh Act. However, whether these words in the Unruh Act would cover race-based surveillance is more questionable, since surveillance may not affect the "service" provided or deny equal access to the facilities. If a court were to reasonably conclude that, taken as a whole, the purpose of the Unruh Act is to guarantee equal "treatment" by business establishments, then engaging in race-based surveillance would certainly seem to constitute unequal "treatment." But the word "treatment" does not appear in the statute. In order to eliminate potential ambiguities, this bill will make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act. In addition, the bill authorizes the Department of Fair Employment and Housing (DFEH) to receive, investigate, and prosecute allegations of racial profiling. Under existing law, DFEH is given express authority to enforce a sequence of statutes in and around the Unruh Civil Rights that guarantee various civil and personal rights. This bill simply adds a new section to this sequence of statutes and then references that statute in the provisions of Government Code granting investigative and enforcement powers to the DFEH. As noted by the sponsors and supporters of this bill, expressly granting this authority to DFEH is an important component of the bill, as the non-economic nature of the harm caused by consumer racial profiling makes it less likely that a private attorney would take such a case.

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0003869

 THIRD READING  

Bill No: AB 2707

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 6-0, 6/14/16

AYES: Jackson, Moorlach, Anderson, Leno, Monning, Wieckowski

NO VOTE RECORDED: Hertzberg

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 5/19/16 (Consent) - See last page for vote

SUBJECT:

SOURCE: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

DIGEST: This bill establishes the Stop Consumer Racial Profiling Act of 2016 (Act) to prohibit business establishments from using consumer racial profiling, as specified. Specifically, this bill defines “consumer racial profiling” to mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers, and includes, but not be limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity. This bill makes this Act enforceable by the Department of Fair Employment and Housing (DFEH).

Senate Floor Amendments of 8/4/16 add double-jointing language to avoid chaptering out issues in the event that both this bill and SB 1442 (Liu), also amending Section 12930 of the Government Code, are enacted.

ANALYSIS:

Existing law:

1. Provides for various civil actions based on violations of a person’s civil or personal rights, including the Unruh Civil Rights Act, the Ralph Civil Rights Act, the Gender Tax Repeal Act, the California Trafficking Victims Protection Act, and the Bane Civil Rights Act, among others. (Civ. Code Sec. 51-51.9.)
2. Provides under the Unruh Civil Rights 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, 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.
3. Specifies the functions, powers, and duties of DFEH, which include, among other things, to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to the Fair Employment and Housing Act (FEHA) and other specified civil rights laws, including the Unruh Civil Rights Act.

This bill:

1. Enacts the Act and provides that no business establishment shall use consumer racial profiling. For these purposes, “consumer racial profiling” shall mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers. This bill further specifies that “consumer racial profiling” includes, but is not limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity.
2. Amends FEHA to add within DFEH’s functions, powers and duties, the authority to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to the Act.

Background

California law reflects a strong public policy protecting individuals against discrimination under numerous statutes, covering a variety of contexts. FEHA and the Unruh Civil Rights Act, for example, 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, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh Civil Rights Act). Others still, prohibit discrimination in public schools and in other state-funded programs or activities. (See Educational Equity at Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et seq.)

This bill seeks to now enact the Act to prohibit business establishments from discriminating on the basis of race or ethnicity by way of specified consumer racial profiling.

Comments

According to the author:

Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms.

However, no incident of consumer racial profiling is harmless. The use of consumer racial profiling negatively impacts the quality of life for African Americans and other ethnic minorities. Furthermore, the victims of consumer racial profiling feel as if they remain second-class citizens, marginalized by the rest of society. All consumers, regardless of race or ethnicity, should enjoy fair and equal treatment in the marketplace.

Since the enactment of the federal Civil Rights Act of 1964 and the state Unruh Civil Rights Act of 1959, all people are legally entitled to equal access to businesses and the right to service regardless of race or ethnicity. Despite the tremendous progress that our nation has made since the passage of these civil rights laws, discrimination in the marketplace remains a problem.

Across California there have been numerous reports of consumer racial profiling, including targeting and regarding ethnic minority consumers as potential criminals, unworthy of service, and being unable to afford high-end merchandise available for purchase. There have also been additional reports of consumer racial profiling resulting in different standards being applied to minority consumers. These incidents have impacted celebrity and working-class ethnic minorities alike.

The Center for Popular Democracy released a report that found Black customers are 7 times more likely to be targeted as potential thieves than white customers. However, research on shoplifting trends in retail stores found no differences by race or ethnicity. The common misperception that African American consumers engage in more criminal activity than other consumers must be put to an end.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/4/16)

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (source)

Black Women Organized for Political Action

California State Conference of the National Association for the Advancement of Colored People

Consumer Attorneys of California

Consumer Federation of California

Prevent CRP (Consumer Racial Profiling)

Service Employees International Union, Local 1000

OPPOSITION: (Verified 8/4/16)

None received

ARGUMENTS IN SUPPORT: Several proponents, including the California State Conference of the National Association for the Advancement of Colored People and the Consumer Attorneys of California, write in support of this bill that “Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms. This bill would make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act and ensure that consumers have a designated state entity to report incidents of racial profiling. We believe that the Stop Consumer Racial Profiling Act is necessary to send a strong message that all consumers[,] regardless of race or ethnicity[,] are entitled to fair and equal treatment.”

ASSEMBLY FLOOR: 76-0, 5/19/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon

NO VOTE RECORDED: Chang, Mathis, McCarty, Williams

Prepared by:

8/10/16 15:55:02

**** END ****

 THIRD READING 

Bill No: AB 2707

Author: Ridley-Thomas (D), et al.

Amended: 4/26/16 in Assembly

Vote: 21

SENATE JUDICIARY COMMITTEE: 6-0, 6/14/16

AYES: Jackson, Moorlach, Anderson, Leno, Monning, Wieckowski

NO VOTE RECORDED: Hertzberg

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 5/19/16 (Consent) - See last page for vote

SUBJECT: Stop Consumer Racial Profiling Act of 2016

SOURCE: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

DIGEST: This bill establishes the Stop Consumer Racial Profiling Act of 2016 (Act) to prohibit business establishments from using consumer racial profiling, as specified. Specifically, this bill defines “consumer racial profiling” to mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers, and would include, but not be limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity. This bill makes this Act enforceable by the Department of Fair Employment and Housing (DFEH).

ANALYSIS:

Existing law:

1. Provides for various civil actions based on violations of a person’s civil or personal rights, including the Unruh Civil Rights Act, the Ralph Civil Rights Act, the Gender Tax Repeal Act, the California Trafficking Victims Protection Act, and the Bane Civil Rights Act, among others. (Civ. Code Sec. 51-51.9.)
2. Provides under the Unruh Civil Rights 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, 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.
3. Specifies the functions, powers, and duties of DFEH, which include, among other things, to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to the Fair Employment and Housing Act (FEHA) and other specified civil rights laws, including the Unruh Civil Rights Act.

This bill:

1. Enacts the Act and provides that no business establishment shall use consumer racial profiling. For these purposes, “consumer racial profiling” shall mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers. This bill further specifies that “consumer racial profiling” includes, but is not limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity.
2. Amends FEHA to add within DFEH’s functions, powers and duties, the authority to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to the Act.

Background

California law reflects a strong public policy protecting individuals against discrimination under numerous statutes, covering a variety of contexts. FEHA and the Unruh Civil Rights Act, for example, 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, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh Civil Rights Act). Others still, prohibit discrimination in public schools and in other state-funded programs or activities. (See Educational Equity at Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et seq.)

This bill seeks to now enact the Act to prohibit business establishments from discriminating on the basis of race or ethnicity by way of specified consumer racial profiling.

Comments

According to the author:

Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms.

However, no incident of consumer racial profiling is harmless. The use of consumer racial profiling negatively impacts the quality of life for African Americans and other ethnic minorities. Furthermore, the victims of consumer racial profiling feel as if they remain second-class citizens, marginalized by the rest of society. All consumers, regardless of race or ethnicity, should enjoy fair and equal treatment in the marketplace.

Since the enactment of the federal Civil Rights Act of 1964 and the state Unruh Civil Rights Act of 1959, all people are legally entitled to equal access to businesses and the right to service regardless of race or ethnicity. Despite the tremendous progress that our nation has made since the passage of these civil rights laws, discrimination in the marketplace remains a problem.

Across California there have been numerous reports of consumer racial profiling, including targeting and regarding ethnic minority consumers as potential criminals, unworthy of service, and being unable to afford high-end merchandise available for purchase. There have also been additional reports of consumer racial profiling resulting in different standards being applied to minority consumers. These incidents have impacted celebrity and working-class ethnic minorities alike.

The Center for Popular Democracy released a report that found Black customers are 7 times more likely to be targeted as potential thieves than white customers. However, research on shoplifting trends in retail stores found no differences by race or ethnicity. The common misperception that African American consumers engage in more criminal activity than other consumers must be put to an end.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/27/16)

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (source)

Black Women Organized for Political Action

California State Conference of the National Association for the Advancement of Colored People

Consumer Attorneys of California

Consumer Federation of California

Prevent CRP (Consumer Racial Profiling)

Service Employees International Union, Local 1000

OPPOSITION: (Verified 6/27/16)

None received

ARGUMENTS IN SUPPORT: Several proponents, including the California State Conference of the National Association for the Advancement of Colored People (NAACP) and the Consumer Attorneys of California, write in support of this bill that “Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms. This bill would make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act and ensure that consumers have a designated state entity to report incidents of racial profiling. We believe that the Stop Consumer Racial Profiling Act is necessary to send a strong message that all consumers[,] regardless of race or ethnicity[,] are entitled to fair and equal treatment.”

ASSEMBLY FLOOR: 76-0, 5/19/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon

NO VOTE RECORDED: Chang, Mathis, McCarty, Williams

Prepared by: Ronak Daylami / JUD. / (916) 651-4113

6/29/16 15:46:03

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 2707 (Author:Ridley-Thomas)

Version: April 26, 2016

Hearing Date: June 14, 2016

Fiscal: Yes

Urgency: No

Consultant: RD

SUBJECT

Stop Consumer Racial Profiling Act of 2016

DESCRIPTION

This bill would establish the Stop Consumer Racial Profiling Act of 2016 to prohibit business establishments from using consumer racial profiling, as specified. Specifically, this bill would define “consumer racial profiling” to mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers, and would include, but not be limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity. This bill would make this Act enforceable by the Department of Fair Employment and Housing.

BACKGROUND

California law reflects a strong public policy protecting individuals against discrimination under numerous statutes, covering a variety of contexts. The Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act, for example, 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, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. (See Gov. Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh Civil Rights Act). Others still, prohibit discrimination in public schools and in other state-funded programs or activities. (See Educational Equity at Ed. Code Sec. 200 et seq. and Equity in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also Gov. Code Section 11135 et seq.)

This bill seeks to now enact the Stop Consumer Racial Profiling Act to prohibit business establishments from discriminating on the basis of race or ethnicity by way of specified consumer racial profiling.

CHANGES TO EXISTING LAW

Existing law provides for various civil actions based on violations of a person’s civil or personal rights, including the Unruh Civil Rights Act, the Ralph Civil Rights Act, the Gender Tax Repeal Act, the California Trafficking Victims Protection Act, and the Bane Civil Rights Act, among others. (Civ. Code Sec. 51-51.9.)

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 specifies the functions, powers, and duties of DFEH, which include, among other things, to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to FEHA and other specified civil rights laws, including the Unruh Civil Rights Act. (Gov. Code Sec. 12930(f).)

This bill would enact the Stop Consumer Racial Profiling Act and provide that no business establishment shall use consumer racial profiling. For these purposes, “consumer racial profiling” shall mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers. This bill would further specify that “consumer racial profiling” includes, but is not limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity.

This bill would amend FEHA to add within DFEH’s functions, powers and duties, the authority to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to the Stop Consumer Racial Profiling Act.

COMMENT

1. Stated need for the bill

According to the author:

Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms.

However, no incident of consumer racial profiling is harmless. The use of consumer racial profiling negatively impacts the quality of life for African Americans and other ethnic minorities. Furthermore, the victims of consumer racial profiling feel as if they remain second-class citizens, marginalized by the rest of society. All consumers, regardless of race or ethnicity, should enjoy fair and equal treatment in the marketplace.

Since the enactment of the federal Civil Rights Act of 1964 and the state Unruh Civil Rights Act of 1959, all people are legally entitled to equal access to businesses and the right to service regardless of race or ethnicity. Despite the tremendous progress that our nation has made since the passage of these civil rights laws, discrimination in the marketplace remains a problem.

Across California there have been numerous reports of consumer racial profiling, including targeting and regarding ethnic minority consumers as potential criminals, unworthy of service, and being unable to afford high-end merchandise available for purchase. There have also been additional reports of consumer racial profiling resulting in different standards being applied to minority consumers. These incidents have impacted celebrity and working-class ethnic minorities alike.

The Center for Popular Democracy released a report that found Black customers are 7 times more likely to be targeted as potential thieves than white customers. However, research on shoplifting trends in retail stores found no differences by race or ethnicity. The common misperception that African American consumers engage in more criminal activity than other consumers must be put to an end.

Several proponents, including the California State Conference of the National Association for the Advancement of Colored People (NAACP) and the Consumer Attorneys of California, write in support of the bill that “Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms. This bill would make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act and ensure that consumers have a designated state entity to report incidents of racial profiling. We believe that the Stop Consumer Racial Profiling Act is necessary to send a strong message that all consumers[,] regardless of race or ethnicity[,] are entitled to fair and equal treatment.”

2. Bill would expressly prohibit consumer racial profiling by business establishments

In support of this legislation establishing the Stop Consumer Racial Profiling Act, the author and the sponsor, the Lawyers’ Committee for the Civil Rights of the San Francisco Bay Area, cite several reports demonstrating that consumer racial profiling (or “shopping while black,” as some might call it) persists under existing law. For example, they write that a report by the Center for Popular Democracy (CPD) found that black customers are seven times more likely to be targeted as potential thieves than white customers. (CPD, Stitched with Prejudice: Zara’s USA’s Corporate Culture of Favoritism (June 2015) <http://populardemocracy.org/sites/default/files/Zara-Report_web%20june%200215.pdf> [as of May 28, 2016] p. 8.) The author writes that a second article by the Journal of Public Policy & Marketing supports that both race and ethnic discrimination remain vexing problems in places of public accommodation and retail establishments. (Harris, Henderson, Williams, Courting Customers: Assessing Consumer Racial Profiling and Other Marketplace Discrimination, Journal of Public Policy & Marketing (May 2005), Vol. 24, No. 1, pp. 163-171.) Such discrimination can go beyond the targeting of individuals of color for potential shoplifting or theft, however, and may include other forms of discriminatory treatment of customers on the basis of race or ethnicity, such as refusal of service or poor quality service, and so forth.

Indeed, “[i]n a retail environment, CRP [Consumer Racial Profiling] can take many forms, ranging from overt or outright confrontation to very subtle differences in treatment, often manifested in forms of harassment. Outright confrontation includes verbal attacks, such as shouting racial epithets, and physical attacks, such as removing customers from the store. Customer harassment includes slow or rude service, required pre-payment, surveillance, searches of belongings, and neglect, such as refusing to serve African-American customers. (Harris, Shopping While Black: Applying 42 U.S.C. § 1981 to Cases of Consumer Racial Profiling, Boston College Third World Law Journal (2003) <http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1124&context=twlj> [as of May 28, 2016]), p.4.)

The sponsor writes that the problem is “both pervasive and debilitating to its victims. The circumstances under which victims are falsely accused and sometimes involuntarily detained are extremely humiliating and/or intimidating. Retailers are reluctant to apologize to consumers for fear of subsequent legal actions against them. Some retailers even allow their loss prevention personnel to use physical force to detain or illegally search consumers.” As a matter of public policy, by prohibiting such consumer racial profiling by business establishments, this bill appears entirely consistent with strong existing policies under state law prohibiting discrimination by businesses. While such activity is arguably already unlawful under the Unruh Civil Rights Act (which prohibits business establishments from discriminating on the basis of not only race, but also sex, gender, age, nationality, religion, ancestry, disability, sexual orientation, citizenship, primary language, or immigration status, and more), the Consumer Federation of California argues, in support of the bill, that “[i]ncidents of consumer racial profiling are unfortunately all too common in California, in spite of our states civil rights statutes. Stereotyping and profiling in retail and restaurant settings results in disparate, unfair, and unjust treatment. Customers of color are followed, stopped, searched, harassed, and confronted with differential security measures entirely because of their race. No consumer should be made to feel marginalized or persecuted. All Californians, regardless of their race or ethnicity, should be treated fairly and equally in the marketplace.”

Staff notes, however, that in today’s world, it is unfortunately all too easy to envision a person being discriminated against or profiled in similar fashions based on their sexual orientation, gender (including transgender individuals), immigration status, religion (e.g., when wearing a hijab or turban), or their nationality or primary language (e.g. Arabic, Farsi, Spanish)—all of which constitute protected bases under the Unruh Civil Rights Act. This bill would, however, focus only on possible discrimination or profiling on the basis of race or ethnicity. Specifically, this bill would provide that consumer racial profiling shall mean the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers. This bill would further specify that “consumer racial profiling” includes, but is not limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity.

Thus, to avoid any unintended consequences, the author may wish to amend the bill to clarify that nothing in this bill suggests that such activities are not otherwise unlawful under the Unruh Civil Rights Act, or that similar acts of consumer profiling would not be unlawful if based on other characteristics protected under the Unruh Civil Rights Act.

3. Bill authorizes the Department of Fair Employment and Housing to enforce this act

Existing law, the Unruh Civil Rights Act, which also makes the actions targeted by this bill unlawful, is enforceable by way of private rights of action, by the Attorney General, and also by the Department of Fair Employment and Housing (DFEH).

Specifically, existing law provides that whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to specified civil and personal rights (including the Unruh Civil Rights 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 four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto. (Civ. Code Sec. 52(a).) Existing law also expressly 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 civil or personal rights, as specified, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint.  (Civ. Code Sec. 52(c).) Separately, under the Fair Employment and Housing Act, the DFEH has the authority to bring claims enforcing various civil and personal rights statutes, as well as anti-discrimination laws. These statutes also include the Unruh Civil Rights Act, among others. (See Gov. Code Sec. 12930(f).)

This bill would expressly authorize the DFEH to also enforce the proposed Stop Consumer Racial Profiling Act. This would appear to be consistent with existing law and other bills that are attempting to designate the DFEH as the authority to investigate and prosecute claims involving discrimination or violations of state civil rights statutes on behalf of the state. (See e.g. SB 1442 (Liu, 2016), which is currently awaiting hearing in the Assembly Judiciary Committee.) Presumably, however, individuals could continue to bring such claims under the Unruh Civil Rights Act and Section 52 of the Civil Code (to the extent that such activities are also unlawful under that act), as could the Attorney General, who shares authority to enforce Unruh under Section 52 of the Civil Code. (See Civ. Code Sec. 52(a), (c).)

Black Women Organized for Political Action (BWOPA) writes in support of the bill that not only is the “type of conduct proscribed by AB 2707 is an all-too-common occurrence in our American experience,” but that the practice is in fact, “so prevalent that it has become a fact of life for most African-Americans and Latino consumers, both male and female. Racial profiling in retail establishments is as demeaning and debilitating as racial profiling in housing and employment. The scars that it leaves on the victims, while invisible, are no less real than the psychological harm caused by racism in other areas of our community.”

BWOPA also notes, however, that because “[o]ftentimes, the harm that victims of racial profiling suffer is not economically quantifiable [ . . . ] private attorneys are reluctant to take on these types of cases in the absence of economic damages. Nonetheless, the treatment of consumers falsely accused of shoplifting may have a deep impact on them and leave emotional scars that may never heal. The public ‘branding’ as a thief is highly offensive to most consumers and generally causes them to take their business elsewhere, having an unintended impact on the retailers’ bottom line.” Thus, by authorizing DFEH to also investigate and bring actions based on such complaints in violation of the proposed Stop Consumer Racial Profiling Act, this bill could arguably help address issues relating to the difficulty that individuals face in attempting to bring private causes of action to stop such unlawful behavior under the Unruh Civil Rights Act.

Support: Black Women Organized for Political Action; California State Conference of the National Association for the Advancement of Colored People; Consumer Attorneys of California; Consumer Federation of California; Prevent CRP (Consumer Racial Profiling)

Opposition: None Known

HISTORY

Source: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Related Pending Legislation: None Known

Prior Legislation: None Known

Prior Vote:

Assembly Floor (Ayes 76, Noes 0)

Assembly Appropriations Committee (Ayes 20, Noes 0)

Assembly Privacy and Consumer Protection Committee (Ayes 11, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

Date of Hearing: May 11, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2707

Author:(Ridley-Thomas) – As Amended Ver:April 26, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill prohibits "consumer racial profiling," defined as the targeting of a person that results in differential treatment of a consumer based on race or ethnicity, and gives the Department of Fair Employment and Housing (DFEH) authority to receive consumer complaints and investigate and prosecute violations.

FISCAL EFFECT:

Any costs to the DFEH should be absorbable. For 2016-17, the department's proposed budget totals $26 million and includes 177 positions.

COMMENTS:

1. Purpose. According to the author's office, “Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms. However, no incident of consumer racial profiling is harmless. The use of consumer racial profiling negatively impacts the quality of life for African Americans and other ethnic minorities. Furthermore, the victims of consumer racial profiling feel as if they remain second-class citizens, marginalized by the rest of society. All consumers, regardless of race or ethnicity, should enjoy fair and equal treatment in the marketplace.”

While existing law already gives DFEH express authority to enforce the Unruh Civil Rights Act, this bill expressly grants DFEH authority to investigate and prosecute consumer racial profiling. The author contends that it is important to give DFEH this specific prosecutorial authority because of the non-economic nature of the harm caused by consumer racial profiling, which makes it less likely that a private attorney would take such a case.

1. Related Legislation. AB 1684 (Stone), pending in Senate Judiciary, authorizes DFEH to investigate and prosecute complaints of human trafficking and to bring a civil action on behalf of a person harmed by human trafficking.

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: April 19, 2016

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Ed Chau, Chair

ABPCA Bill Id:AB 2707 (

Author:Ridley-Thomas) – As Amended Ver:April 11, 2016

SUBJECT: Stop Consumer Racial Profiling Act of 2016

SUMMARY: Prohibits "consumer racial profiling," defined as the targeting of a person that results in differential treatment of a consumer based on race or ethnicity, and gives the Department of Fair Employment and Housing (DFEH) authority to receive consumer complaints and investigate and prosecute violations. Specifically, this bill:

1. Prohibits a business establishment from using "consumer racial profiling" in its business.
2. Defines "consumer racial profiling” to mean profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers.
3. Specifies that “consumer racial profiling” includes, but is not limited to, refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, and surveillance practices based on race or ethnicity.
4. Gives DFEH the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of this bill.

EXISTING LAW:

1. Provides, under the Unruh Civil Rights Act, that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status, are entitled to the full and equal accommodations, advantages, facilities, or services of all business establishments of every kind whatsoever. (Civil Code (CC) Section 51.)
2. Provides that no business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (CC 51.5 (a).)
3. Provides, under federal law, that all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin. (42 U.S.C. Section 2000a.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Purpose of this bill. This bill is intended to give consumers harmed by racial profiling tactics a means of redress by empowering DFEH to prosecute complaints. This measure is sponsored by the Lawyers’ Committee for Civil Rights.
2. Author’s statement. According to the author's office, “Federal and state public accommodation laws are often ill-equipped to address consumer racial profiling. Courts often fail to understand the subtle nature of modern discrimination and interpret civil rights statutes narrowly requiring plaintiffs to establish specific harms. However, no incident of consumer racial profiling is harmless. The use of consumer racial profiling negatively impacts the quality of life for African Americans and other ethnic minorities. Furthermore, the victims of consumer racial profiling feel as if they remain second-class citizens, marginalized by the rest of society. All consumers, regardless of race or ethnicity, should enjoy fair and equal treatment in the marketplace.”
3. Racial profiling still a problem. According to a survey of workers at the high-end fashion retailer Zara’s New York City stores, black customers are seven times more likely to be targeted as potential thieves than white customers. The survey suggested that both race and ethnic discrimination remain challenging problems, given that industry studies on actual shop lifting trends in retail stores indicate no differences by race or ethnicity. (“Stitched with Prejudice: Zara USA’s Corporate Culture of Favoritism,” Center for Popular Democracy; “Courting Customers: Assessing Consumer Racial Profiling and Other Marketplace Discrimination,” Journal of Public Policy & Marketing)
   

According to the author, in California there have been numerous reports of consumer racial profiling, including targeting ethnic minority consumers as potential criminals, unworthy of service, and being unable to afford high-end merchandise available for purchase. The author notes these incidents have impacted celebrity and working-class ethnic minorities alike.

1. The Unruh Civil Rights Act of 1959. Since the enactment of the state Unruh Civil Rights Act of 1959 and the federal Civil Rights Act of 1964, all people are legally entitled to equal access to businesses and the right to service regardless of race or ethnicity. The author contends that despite these strong civil rights laws, discrimination in the marketplace remains a significant problem.

The Unruh Civil Rights Act already provides that no person shall be denied equal treatment or services in "all business establishments of any kind whatsoever" on the basis of several enumerated characteristics, including race or color. Therefore, some of the retailer conduct that constitutes "consumer racial profiling" may already be a violation of the Unruh Civil Rights Act. However, as with any general statute, the full range of conduct that a particular word or clause might encompass is not always clear. The Unruh Civil Rights Act states, for example, that all persons are entitled, regardless of race, to "full and equal accommodations, advantages, facilities, privileges, or services" in all business establishments. The author contends these words may not cover specific activities, such as race-based surveillance of consumers who are shopping, since depending on whether or not the consumer becomes aware or is treated differently because of the surveillance, it may not result in a denial of “full and equal accommodation, advantages, facilities, privileges, or services” under current law.

According to the author and the bill’s sponsor, Lawyers’ Committee for Civil Rights, the majority of the egregious consumer racial profiling cases are settled out of court, which limits our knowledge about the deficiencies that may exist under current law. When a full trial is held in a case and the appeals process is exhausted, then a court decision can provide nuanced, binding interpretations of what the words in a statute actually mean when applied to a specific practice, such as racial profiling to surveil consumers who are shopping.

1. The Stop Consumer Racial Profiling Act of 2016. This bill defines and prohibits “consumer racial profiling” as the profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the consumer product or service offered to consumers.

The bill authorizes DFEH to receive, investigate, and prosecute allegations of racial profiling, which would give victims of consumer racial profiling a specific government agency where they can report incidents of discrimination. While existing law already gives DFEH express authority to enforce the Unruh Civil Rights Act, this bill expressly grants DFEH authority to investigate and prosecute consumer racial profiling. The author contends that it is important to give DFEH this specific prosecutorial authority because of the non-economic nature of the harm caused by consumer racial profiling, which makes it less likely that a private attorney would take such a case.

1. Arguments in support. According to the sponsor, the Lawyers' Committee for Civil Rights of the San Francisco Bay Area (LCCR), this measure will "prohibit a business establishment from using consumer racial profiling and makes the Department of Fair Employment and Housing (DFEH) responsible for the enforcement of this act. AB 2707 would make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act. It would also ensure that consumers have a designated state entity to report incidents of racial profiling."

The Black Women Organized for Political Action (BWOPA) supports this bill because “it will send a strong message to all of California’s retailers that all consumers, regardless of race or ethnicity, are entitled to fair and equal treatment.”

Consumer Federation of California (CFC) states in support that the bill would prohibit businesses from "profiling consumers in a way that results in differential treatment based on race or ethnicity and a denial or diminution in the product or service offered to consumers.” CFC further notes that customers of color "are followed, stopped, searched, harassed, and confronted with differential security measures almost entirely because of their race … and that no consumer should be made to feel marginalized or persecuted.”

1. Related legislation. AB 1684 (Stone) authorizes DFEH to investigate and prosecute complaints of human trafficking and to bring a civil action on behalf of a person harmed by human trafficking and stipulates that damages awarded pursuant to a civil action must be awarded to the person harmed, and that any costs and attorney's fees awarded must be awarded to DFEH. This bill is currently pending referral in the Senate Rules Committee.

SB 1442 (Liu) reorganizes various statutes regarding discrimination and removes the authority of DFEH and the Business, Consumer Services, and Housing Agency to promulgate regulations to prohibit discrimination. This bill is currently pending in the Senate Judiciary Committee.

1. Double-referral. This bill was double-referred to the Assembly Judiciary Committee where it passed 10-0 on April 5, 2016.

REGISTERED SUPPORT / OPPOSITION:

Support

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (sponsor)

Black Women Organized for Political Action

California State Conference of the National Association for the Advancement of Colored People

Consumer Attorneys of California

Consumer Federation of California

Opposition

None on file.

Analysis Prepared by: Jennie Bretschneider / P. & C.P. / (916) 319-2200

Date of Hearing: April 5, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2707

Author:(Ridley-Thomas) – As Introduced Ver:February 19, 2016

SUBJECT: Stop Consumer Racial Profiling Act of 2016

KEY ISSUE: Should a business establishment be prohibited from engaging in "consumer racial profiling," as defined?

SYNOPSIS

This bill, which would enact the Stop Commercial Racial Profiling Act of 2016, is sponsored by the Lawyers' Committee on Civil Rights of the San Francisco Bay Area. According to reports provided to the Committee by author and sponsor, "consumer racial profiling" – sometimes called "Shopping While Black" – is a surprisingly pervasive problem in the retail sector. For example, the Center for Popular Democracy cites academic studies showing that African-American customers are seven times more likely to be targeted by store clerks and security personnel as potential shoplifters than are white customers. In addition to race-based surveillance practices, consumer racial profiling may also include other forms of differential treatment of customers because of race or ethnicity, including refusing service, offering less responsive service or service of lesser quality, making race-based assumptions about a customer's ability to afford a product, or requiring additional forms of identification. Existing law, the Unruh Civil Rights Act, already provides that no person shall be denied equal treatment or services in any business establishment on the basis of enumerated characteristics, including race or color. An argument could be made, therefore, that much of the retailer conduct that constitutes "consumer racial profiling" is already a violation of the Unruh Civil Rights Act. However, this bill will make it clear that all forms of racial profiling violate the Unruh Civil Rights Act. Moreover, the bill authorizes the Department of Fair Employment and Housing (DFEH) to receive, investigate, and prosecute allegations of racial profiling. Expressly granting this authority to DFEH is an important component of the bill, as the often non-economic nature of the harm caused by consumer racial profiling, the sponsor contends, means that private attorneys are less likely to take such cases. The bill is supported by civil rights and consumer groups. There is no opposition to this measure.

SUMMARY: Prohibits "consumer racial profiling," as defined. Specifically, this bill:

1. Prohibits a business establishment from using "consumer racial profiling."
2. Defines "consumer racial profiling” to include the following:
   1. Profiling or targeting of a person that results in differential treatment based on his or her race or ethnicity and that constitutes a denial or degradation in the product or service offered to customers.
   2. Refusal to serve, removal from the business establishment premises, segregated seating, requiring additional forms of identification, race-based surveillance practices, and similar race-based practices.
3. Gives the Department of Fair Employment and Housing the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of this bill.

EXISTING LAW:

1. Provides, under the Unruh Civil Rights Act, that all persons within this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status, are entitled to the full and equal accommodations, advantages, facilities, or services of all business establishments of every kind whatsoever. (Civil Code Section 51.)
2. Provides that no business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (Civil Code Section 51.5 (a).)
3. Provides, under federal law, that all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin. (42 USC Section 2000a.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: As much as we sometimes like to think otherwise, we have yet to obtain the "color blind" society that Justice Harlan hoped for in his powerful dissent in Plessy v. Ferguson (1896), the decision that bequeathed the infamous "separate but equal" doctrine and put the U.S. Supreme Court's stamp of legitimacy of Jim Crow segregation in the South, until the doctrine was finally rejected nearly sixty years later in Brown v. Board of Education (1954). One example of our seeming inability to be truly "color blind" is seen in what a number of scholars and commentators refer to as "consumer racial profiling" or "Shopping While Black." That is, while business establishments no longer hang "Whites Only" signs on their front doors, a number of academic studies suggest that once people of color walk inside those stores they are treated differently. For example, the Center for Popular Democracy cites studies showing that African-American customers are seven times more likely to be targeted by store clerks and security personnel as potential shoplifters than are white customers. In addition to race-based surveillance practices, consumer racial profiling may include other forms of differential treatment of customers of color, including refusing service, offering service of lesser quality, making race-based assumptions about a customer's ability to afford a product, or requiring additional forms of identification.

Existing law, the Unruh Civil Rights Act, already provides that no person shall be denied equal treatment or services in "all business establishments of any kind whatsoever" on the basis of a several enumerated characteristics, including race or color. Therefore, some of the retailer conduct that constitutes "consumer racial profiling" may already be a violation of the Unruh Civil Rights Act. However, as with any general statute, the full range of conduct that a particular word or clause might encompass is not always clear. For example, the Unruh Civil Rights Act states that all persons are entitled, regardless of race, to "full and equal accommodations, advantages, facilities, privileges, or services" in all business establishments. It seems clear that consumer racial profiling that leads to different levels of service, a removal from the facilities, or a denial of full access to facilities would be prohibited by language of the Unruh Act. However, whether these words in the Unruh Act would cover race-based surveillance is more questionable, since surveillance may not affect the "service" provided or deny equal access to the facilities. If a court were to reasonably conclude that, taken as a whole, the purpose of the Unruh Act is to guarantee equal "treatment" by business establishments, then engaging in race-based surveillance would certainly seem to constitute unequal "treatment." But the word "treatment" does not appear in the statute. In order to eliminate potential ambiguities, AB 2707 will make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act. In addition, the bill authorizes the Department of Fair Employment and Housing (DFEH) to receive, investigate, and prosecute allegations of racial profiling. Under existing law, DFEH is given express authority to enforce a sequence of statutes in and around the Unruh Civil Rights that guarantee various civil and personal rights. This bill simply adds a new section to this sequence of statutes and then references that statute in the provisions of Government Code granting investigative and enforcement powers to the DFEH. As noted by the sponsors and supporters of this bill, expressly granting this authority to DFEH is an important component of the bill, as the non-economic nature of the harm caused by consumer racial profiling makes it less likely that a private attorney would take such a case.

Consumer profiling goes beyond race and ethnicity. The Committee takes note of the fact that other protected classes also experience consumer profiling, based, for example, on age, religion, or perceived LGBT status. For example, given the amount of attention that certain candidates for the U.S. Presidency devote to proclaiming the dangers of "radical Islamic terrorism," it is not inconceivable that a person that wears a turban, or other clothing suggesting devotion to Islam, might face heightened surveillance from security personnel, or even different treatment and service from sales staff, based on the person's real or perceived religion. Age, too, can be a basis for differential treatment. For example, according to some reports teens have been asked to leave a backpack in the front of the store whereas an adult carrying an equally large handbag would not be asked to do so. Though the Committee has not asked the author to make any changes to the bill at this time, the author may consider expanding the bill to go beyond profiling on the basis of “race and ethnicity,” to include such things as religion, age, or perceived sexual orientation or gender identity. However, this bill responds not to potential or hypothetical concerns, but to concrete data showing that race is a considerable and troubling factor in how consumers are treated by some retailers.

ARGUMENTS IN SUPPORT: According to the sponsor, the Lawyers' Committee for Civil Rights of the San Francisco Bay Area (LCCR), this measure will "prohibit a business establishment from using consumer racial profiling and makes the Department of Fair Employment and Housing (DFEH) responsible for the enforcement of this act. AB 2707 would make it clear that all forms of consumer racial profiling violate the Unruh Civil Rights Act. It would also ensure that consumers have a designated state entity to report incidents of racial profiling."

In addition for the reasons cited above, the Black Women Organized for Political Action (BWOPA) supports this bill because “it will send a strong message to all of California’s retailers that all consumers, regardless of race or ethnicity, are entitled to fair and equal treatment.” BWOPA notes that granting the power to the Department of Fair Employment and Housing is important because the harm caused by consumer racial profiling is not economic or quantifiable, which means that private attorneys would be reluctant to take such cases. 

Consumer Federation of California (CFC) supports the bill because it will prohibit businesses from "profiling consumers in a way that results in differential treatment based on race or ethnicity and a denial or diminution in the product or service offered to consumers.” CFC further notes that customers of color "are followed, stopped, searched, harassed, and confronted with differential security measures almost entirely because of their race … and that no consumer should be made to feel marginalized or persecuted.”

REGISTERED SUPPORT / OPPOSITION:

Support

Lawyers' Committee for Civil Rights, San Francisco Bay Area (sponsor)

Black Women Organized for Political Action

Consumer Attorneys of California

Consumer Federation of California

Opposition

None on file

Analysis Prepared by: Amanda Hall and Thomas Clark/ JUD. / (916) 319-2334