Existing law finds and declares that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would extend the protections of the Unruh Civil Rights Act to persons regardless of citizenship, primary language, or immigration status. The bill would specify that those protections do not require the provision of services or documents in a language other than English, beyond that which is otherwise required by law.

Existing law finds and declares that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would extend the protections of the Unruh Civil Rights Act to persons regardless of citizenship, primary language, or immigration status. The bill would specify that those protections do not require the provision of services or documents in a language other than English, beyond that which is otherwise required by law.

Existing law finds and declares that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would extend the protections of the Unruh Civil Rights Act to persons regardless of citizenship, primary language, or immigration status. The bill would specify that those protections do not require the provision of services or documents in a language other than English, beyond that which is otherwise required by law.

Existing law finds and declares that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would extend the protections of the Unruh Civil Rights Act to persons regardless of citizenship, primary language, or immigration status.

Existing law finds and declares that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

Existing law finds and declares that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would declare the intent of the Legislature to enact legislation to protect Californias immigrants from discrimination on the basis of their immigration status, citizenship, and language.

SENATE THIRD READING

STR Bill Id:SB 600

Author:(Pan)

As Amended Ver:May 18, 2015

Majority vote

SENATE VOTE: 30-9

SUMMARY: Amends the Unruh Civil Rights Act (Unruh Act) to expressly prohibit discrimination by business establishments on the basis of citizenship, primary language, and immigration status. Specifically, this bill:

1. Includes citizenship, primary language, and immigration status among the list of characteristics for which discrimination is specifically prohibited under the Unruh Act.

2. Provides that 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 nothing in this bill shall be construed to require the provision of services or documents in a language other than English, beyond that which is otherwise required by other provisions of federal, state, or local law, including Civil Code Section 1632.

4. Finds that these provisions do not constitute a change in, but are declaratory of, existing law. Further states that it is not the intent of the Legislature in amending the Unruh Act to affect the protected status of any other classification, whether or not expressed in the Act itself.

FISCAL EFFECT: None

COMMENTS: This bill, co-sponsored by the California Civil Rights Coalition (CCRC) and the Mexican American Legal Defense Fund (MALDEF), seeks to expand the list of protected characteristics in the Unruh Act to specifically prohibit discrimination on the basis of immigration status, primary language, and citizenship. Proponents contend that this bill is needed to ensure that our state laws clearly and comprehensively protect against discrimination based on these characteristics.

Background on the Unruh Act. Civil Code Section 51, the Unruh Civil Rights Act, is considered one of the cornerstones of antidiscrimination law in California, and specifically prohibits business establishments from denying equal accommodations and services on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. The true scope of protection under the Unruh Act is actually even broader than these categories because the California Supreme Court has consistently interpreted the Unruh Act in an expansive way, holding that it is meant to cover all arbitrary and intentional discrimination by business establishments.

In a landmark 1970 case, 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 3 (1970) Cal.3d 205). In a detailed analysis of the Unruh Act, the Court 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. (Emphasis added.) 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." (Id. at p. 216.)

The Court has also concluded, however, that prohibited discrimination, if unspecified, must be similar to the kinds of characteristics listed in the statute. Thus, in rejecting coverage of discrimination on the basis of 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 (1991) 52 Cal.3d 1142, 1169.)

This bill seeks to ensure that discrimination based on immigration status, citizenship, or primary language spoken is prohibited under the Unruh Act. According to the author and sponsors, enough ambiguity exists about whether the Unruh Act protects against discrimination based on immigration status, citizenship, and primary language that it is worthwhile to clarify that the Act specifically prohibits discrimination on those bases. Co-sponsor MALDEF states: "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...California should provide clear notice to business proprietors that they [should not make] the erroneous conclusion that they may discriminate in public accommodations."

Because citizenship, immigration status, and language are changeable characteristics, and sometimes relevant consideration under other law, proponents are apparently concerned that some businesses may conclude that these characteristics are not similar to those characteristics currently specified in the Unruh Act, and are instead more like the characteristic of economic status which was determined by the Harris court to not be a prohibited form of discrimination under the Act.

A. Citizenship and primary language. With respect to citizenship and language, proponents may be concerned that previous court cases may lead some California court to conclude in the future that these characteristics are too different from existing Unruh protected characteristics and therefore not protected from discrimination under the Unruh Act. In some analogous contexts, the U.S. Supreme Court has ruled that national origin and race are distinct from citizenship and primary language. For example, in Espinoza v. Farah Mfg. Co. (1973) 414 U.S. 86, the Court held that while Title VII of the Civil Rights Act of 1964 prohibited discrimination on the basis of national origin, it does not prohibit discrimination on the basis of citizenship. The Court commented that "national origin" on its face refers to the country where a person was born or from which the person’s ancestors came, and that the Congressional record only supported this interpretation. (Id. at pp. 88-89.) Consequently, the Court concluded that there was no reason to believe Congress intended for the term "national origin" to have a broader scope. (Id. at p. 91.)

In Hernandez v. New York (1991) 500 U.S. 352, the Court held that while the constitution protects individuals from discrimination based on their race in jury selection, that protection does not include protection from discrimination based on the language spoken by that individual. In that case, the Court stated that the prosecutor’s dismissal of jurors based on the language they spoke was "race-neutral," and even if it resulted in a disproportionate removal of Latinos from juries, that did not rise to a per se violation of the Equal Protection Clause. (Id. at p. 361.)

Where there is a Supreme Court precedent establishing that citizenship and language are distinct from nationality and race, and that prohibiting discrimination based on the latter does not prohibit discrimination based on the former, the Unruh Act’s prohibition of discrimination on the basis of nationality and race can arguably be said to not impliedly also prohibit discrimination on the basis of citizenship or language spoken.

It is also important to note that in both Espinoza and Hernández, the Court commented that permissible discrimination based on citizenship and language may be used as a pretext for impermissible discrimination on the basis of national origin or race. According to proponents, this bill would help prevent this kind of pretextual discrimination by clarifying that citizenship and language discrimination are specifically prohibited by the Unruh Act.

An argument can also be made that language discrimination is already prohibited by the Unruh Act when it is pretext for discrimination based on national origin. Such an argument was made by Governor Brown in his veto message of SB 111 (Yee) of 2011. As heard by the Assembly Judiciary Committee, SB 111 would have made it a violation of the Unruh Civil Rights Act to adopt or enforce a policy that limited or prohibited the use of any language in a business establishment, unless the language is justified by a business necessity and notification has been provided of the circumstances and the time when the language restriction is required to be observed, and of the consequences for its violation.

SB 111 was ultimately vetoed by Governor Brown, who stated: "Existing law already prohibits businesses from limiting the use of language without a business necessity. In addition, existing law specifically protects against discrimination based on language when it is used as a pretext to discriminate against persons due to their national origin." This bill would clarify that under the Unruh Act, discrimination based on language is specifically prohibited, whether the discrimination is direct or used as a pretext for national origin discrimination.

B. Immigration Status. While no case has directly held that immigration status is covered within Unruh, it would appear consistent with existing law which prohibits arbitrary discrimination based upon personal characteristics. (Harris v. Capitol Growth Investors XIV, supra, 52 Cal.3d at p. 1169.) In addition, existing law prohibits discrimination based upon national origin, of which immigrants are a subset. In order to ensure protection against impermissible discrimination based upon the category of "national origin," discrimination against members of any subset of that category must also be prohibited under existing law. This concept is supported by the history of the Unruh Act, and by analogous case law. (See Vaughn v. Neu Proler International (1990) 223 Cal.App.3d.1612, 1617, at fn. 2.)

As with language discrimination, an argument has been made that discrimination based on immigration status is already prohibited by the Unruh Act when it is pretext for discrimination based on national origin. In 1999, AB 407 (Cedillo) sought to add discrimination based on immigration status to the list of characteristics protected under the Unruh Act. That bill was ultimately vetoed by then-Governor Davis, who stated in his veto message his belief that "all residents of California, regardless of immigration status, are already protected from discrimination based in their personal characteristics, specifically ethnic origin and nationality." Accordingly, this bill would further clarify that the Unruh Act specifically protects against discrimination based on immigration status, whether occurring directly or used as a pretext for national origin discrimination. In light of ongoing debate about immigration reform and the President's recent deferred action programs, the author and sponsor contend such clarification to the Unruh Act is warranted. In support, CCRC states: "We can, however, limit the impacts of the increasing demonization of immigrants in public discourse by enacting sensible legislation like SB 600."

Provisions to respect existing law on verification of immigration status and translation requirements. This bill currently provides that verification of immigration status and any discrimination based upon verified immigration status, where required by federal law, shall not constitute a violation of these provisions. In addition, this bill clarifies that none of its provisions shall be construed to require the provision of services or documents in a language other than English, beyond that which is otherwise required by other provisions of federal, state, or local law, including Civil Code Section 1632. This is similar to language in SB 111 that also specified that this bill was not to be construed to impose a duty on any business establishment to provide customer service in a particular language unless that duty is otherwise required by law. By adding these qualifications, this bill seeks to avoid any unintended conflicts with existing laws on verification of immigration status and translation of documents into languages other than English.

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0001108

Date of Hearing: June 30, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 600

Author:(Pan) – As Amended Ver:May 18, 2015

SENATE VOTE: 30-9

SUBJECT: DISCRIMINATION: CITIZENSHIP: LANGUAGE: IMMIGRATION STATUS

KEY ISSUE: SHOULD it be clarified in state law that arbitrary discrimination by businesses on the basis of citizenship, primary language, or immigration status IS specifically prohibited by the state’s unruh civil rights act?

SYNOPSIS

This bill, co-sponsored by the California Civil Rights Coalition and the Mexican American Legal Defense Fund (MALDEF), seeks to expand the list of protected characteristics in the Unruh Act to specifically prohibit discrimination on the basis of immigration status, primary language, and citizenship. According to the author and sponsors, enough ambiguity exists about whether the Unruh Act protects against discrimination based on immigration status, citizenship, and primary language that it is worthwhile to clarify that the Act specifically prohibits discrimination on these bases. Because citizenship, immigration status, and language are changeable characteristics, and sometimes relevant considerations under the law, proponents express concern that some businesses may conclude that these characteristics are not similar enough to other protected characteristics now currently specified in the Unruh Act, and therefore may not be protected from discrimination under the Act pursuant to case law, specifically, Harris v. Capital Growth Investors XIV(1991) 52 Cal.3d 1142.

In some analogous contexts, the U.S. Supreme Court has ruled that national origin and race are characteristics that are distinct from citizenship and primary language, but at the same time has recognized that permissible discrimination based on citizenship and language may be used as a pretext for impermissible discrimination on the basis of national origin or race. According to proponents, this bill would help prevent this kind of pretextual discrimination by clarifying that citizenship and language discrimination, as well as immigration status discrimination, are specifically prohibited under the Unruh Act. The bill is supported by many civil rights organizations, immigrant advocates, and labor unions and has no known opposition.

SUMMARY: Amends the Unruh Act to expressly prohibit discrimination by business establishments on the basis of citizenship, primary language, and immigration status. Specifically, this bill:

1. Includes citizenship, primary language, and immigration status among the list of characteristics for which discrimination is specifically prohibited under the Unruh Act.

2. Provides that 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 nothing in this bill shall be construed to require the provision of services or documents in a language other than English, beyond that which is otherwise required by other provisions of federal, state, or local law, including Civil Code Section 1632.

4. Finds that these provisions do not constitute a change in, but are declaratory of, existing law. Further states that it is not the intent of the Legislature in amending the Unruh Act to affect the protected status of any other classification, whether or not expressed in the Act itself.

EXISTING LAW:

Pursuant to the Unruh Civil Rights Act ("Unruh Act"):

1. Generally prohibits business establishments from arbitrary discrimination on the basis of certain personal characteristics.

2. Specifically, the Unruh 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, or sexual orientation, everyone is entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. (Civil Code Section 51.)

3. Provides that "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, etc. . . . is illustrative rather than restrictive." (In re Cox (1970) 3 Cal.3d 205, 216.)

Pursuant to the Fair Employment and Housing Act (FEHA):

4. Prohibits 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. (Government Code Section 12920 et seq.)

5. Provides that it is an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any 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. (Government Code Section 12951.)

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

COMMENTS: This bill, co-sponsored by the California Civil Rights Coalition and the Mexican American Legal Defense Fund (MALDEF), seeks to expand the list of protected characteristics in the Unruh Act to specifically prohibit discrimination on the basis of immigration status, primary language, and citizenship.

Stated Need for the Bill. According to the author:

The Unruh Act provides protection against arbitrary discrimination based on sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation, but is silent on immigration status, language and citizenship.

The U.S. Supreme Court has held in 1973, and again in 1991, that “citizenship” and “language” are not the same as “national origin”, and that federal constitutional civil rights protections are not covered by the “national origin” characteristic. Neither case has been overruled, and both remain binding law. Therefore, there is a need to protect these individuals from discrimination in the Unruh Civil Rights Act. [W]ith the debate surrounding immigration reform, and the newly created programs under the President for immigration relief for DACA and DAPA beneficiaries, we believe the bill is necessary to guard against discrimination faced by immigrants.

The California Civil Rights Coalition (CCRC), co-sponsor of the bill, contends that it is needed to ensure that our state laws clearly and comprehensively protect against discrimination. CCRC states:

Prevention of discrimination is far superior to remedying discrimination after it has occurred. CCRC therefore supports greater clarity in all of our civil rights laws. SB 600 addresses this goal with respect to business discrimination against immigrants. In addition, our economy and every business that contributes to our economy will thrive if the distortions in competition caused by discrimination are avoided.

Background on the Unruh Act. Civil Code Section 51, the Unruh Civil Rights Act, is considered one of the cornerstones of antidiscrimination law in California, and specifically prohibits business establishments from denying equal accommodations and services on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. The true scope of protection under the Unruh Act is actually even more broad than these categories because the California Supreme Court has consistently interpreted the Unruh Act in an expansive way, holding that it is meant to cover all arbitrary and intentional discrimination by business establishments.

In a landmark 1970 case, 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 3 (1970) Cal.3d 205.) In a detailed analysis of the Unruh Act, the Court 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. (Emphasis added.) 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.” (Id. at p. 216.)

The Court has also concluded, however, that prohibited discrimination, if unspecified, 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 (1991) 52 Cal.3d 1142, 1169.)

In recent years, the Legislature has enacted several bills amending the Unruh Act to expressly cover new classifications. In 2005, AB 1400 (Laird), Ch. 420, Stats. 2005, added marital status and sexual orientation to the list of protected characteristics specified in the 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), Ch. 719, Stats. 2011, was enacted to expressly add “gender identity” and “gender expression” throughout both Unruh 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. That same year, SB 559 (Padilla), Ch. 261, Stats. 2011, was enacted to add genetic information as a protected characteristic under the Unruh Act, FEHA, and other anti-discrimination statutes.

This bill seeks to ensure that discrimination based on immigration status, citizenship, or primary language spoken is prohibited under the Unruh Act. According to the author and sponsors, enough ambiguity exists about whether the Unruh Act protects against discrimination based on immigration status, citizenship, and primary language that it is worthwhile to clarify that the Act specifically prohibits discrimination on those bases. Co-sponsor MALDEF states: "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. . . California should provide clear notice to business proprietors that they [should not make] the erroneous conclusion that they may discriminate in public accommodations."

Because citizenship, immigration status, and language are changeable characteristics, and sometimes relevant consideration under other law, proponents are apparently concerned that some businesses may conclude that these characteristics are not similar to those characteristics currently specified in the Unruh Act, and are instead more like the characteristic of economic status which was determined by the Harris court to not be a prohibited form of discrimination under the Act.

A. Citizenship and primary language. With respect to citizenship and language, proponents may be concerned that previous court cases may lead some California court to conclude in the future that these characteristics are too different from existing Unruh protected characteristics and therefore not protected from discrimination under the Unruh Act. In some analogous contexts, the U.S. Supreme Court has ruled that national origin and race are distinct from citizenship and primary language. For example, in Espinoza v. Farah Mfg. Co. (1973) 414 U.S. 86, the Court held that while Title VII of the Civil Rights Act of 1964 prohibited discrimination on the basis of national origin, it does not prohibit discrimination on the basis of citizenship. The Court commented that “national origin” on its face refers to the country where a person was born or from which the person’s ancestors came, and that the Congressional record only supported this interpretation. (Id. at pp. 88-89.) Consequently, the Court concluded that there was no reason to believe Congress intended for the term “national origin” to have any broader scope. (Id. at p. 91.)

In Hernandez v. New York (1991) 500 U.S. 352, the Court held that while the constitution protects individuals from discrimination based on their race in jury selection, that protection does not include protection from discrimination based on the language spoken by that individual. In that case, the Court stated that the prosecutor’s dismissal of jurors based on the language they spoke was “race-neutral,” and even if it resulted in a disproportionate removal of Latinos from juries, that did not rise to a per se violation of the Equal Protection Clause. (Id. at p. 361.)

Where there is a Supreme Court precedent establishing that citizenship and language are distinct from nationality and race, and that prohibiting discrimination based on the latter does not prohibit discrimination based on the former, the Unruh Act’s prohibition of discrimination on the basis of nationality and race can arguable be said to not impliedly also prohibit discrimination on the basis of citizenship or language spoken.

It is also important to note that in both Espinoza and Hernández, the Court commented that permissible discrimination based on citizenship and language may be used as a pretext for impermissible discrimination on the basis of national origin or race. According to proponents, this bill would help prevent this kind of pretextual discrimination by clarifying that citizenship and language discrimination are specifically prohibited by the Unruh Act.

An argument can also be made that language discrimination is already prohibited by the Unruh Act when it is pretext for discrimination based on national origin. Such an argument was made by Gov. Brown in his veto message of SB 111 (Yee) of 2011. As heard by this Committee, SB 111 would have made it a violation of the Unruh Civil Rights Act to adopt or enforce a policy that limited or prohibited the use of any language in a business establishment, unless the language is justified by a business necessity and notification has been provided of the circumstances and the time when the language restriction is required to be observed, and of the consequences for its violation.

SB 111 was ultimately vetoed by Governor Brown, who stated: “Existing law already prohibits businesses from limiting the use of language without a business necessity. In addition, existing law specifically protects against discrimination based on language when it is used as a pretext to discriminate against persons due to their national origin.” This bill would clarify that under the Unruh Act, discrimination based on language is specifically prohibited, whether the discrimination is direct or used as a pretext for national origin discrimination.

B. Immigration Status. While no case has directly held that immigration status is covered within Unruh, it would appear consistent with existing law which prohibits arbitrary discrimination based upon personal characteristics. (Harris v. Capitol Growth Investors XIV, supra, 52 Cal.3d at p. 1169.) In addition, existing law prohibits discrimination based upon national origin, of which immigrants are a subset. In order to ensure protection against impermissible discrimination based upon the category of “national origin,” discrimination against members of any subset of that category must also be prohibited under existing law. This concept is supported by the history of the Unruh Act, and by analogous case law. (See Vaughn v. Neu Proler International (1990) 223 Cal.App.3d.1612, 1617, at fn. 2.)

As with language discrimination, an argument has been made that discrimination based on immigration status is already prohibited by the Unruh Act when it is pretext for discrimination based on national origin. In 1999, AB 407 (Cedillo) sought to add discrimination based on immigration status to the list of characteristics protected under the Unruh Act. That bill was ultimately vetoed by then-Governor Davis, who stated in his veto message his belief that “all residents of California, regardless of immigration status, are already protected from discrimination based in their personal characteristics, specifically ethnic origin and nationality.”

This bill would further clarify that the Unruh Act specifically protects against discrimination based on immigration status, whether occurring directly or used as a pretext for national origin discrimination. In light of ongoing debate about immigration reform and the President's recent executive actions establishing the DAPA and DACA programs, the author and sponsor contend such clarification to the Unruh Act is warranted. In support, CCRC states:

At the national level, immigration reform and immigrant integration remain politically controversial. Unfortunately, our state, as a critical part of the nation, cannot be totally immune from the influence of our nation’s increasingly contentious and debased public debate on the issue. We can, however, limit the impacts of the increasing demonization of immigrants in public discourse by enacting sensible legislation like SB 600.

Provisions to respect existing law on verification of immigration status and translation requirements. In order to ensure that this bill does not create unintended conflicts with existing laws on verification of immigration status and translation of documents into languages other than English, the author has previously amended the bill accordingly. The bill currently provides that verification of immigration status and any discrimination based upon verified immigration status, where required by federal law, shall not constitute a violation of this section. In addition, the bill clarifies that none of its provisions shall be construed to require the provision of services or documents in a language other than English, beyond that which is otherwise required by other provisions of federal, state, or local law, including Section 1632 of the Civil Code. This is similar to language in SB 111 (Yee) that also specified that the bill was not to be construed to impose a duty on any business establishment to provide customer service in a particular language unless that duty is otherwise required by law. By adding these qualifications, the bill seeks to avoid infringing on any federal laws that may create a preemption or overreach-based conflict.

REGISTERED SUPPORT / OPPOSITION:

Support

California Civil Rights Coalition (co-sponsor)

Mexican American Legal Defense and Educational Fund (MALDEF) (co-sponsor)

American Federation of State, County and Municipal Employees (AFSCME)

Anti-Defamation League

Asian Americans Advancing Justice – Sacramento

ASPIRE

California Civil Rights Coalition

California Equity Leaders Network

California Immigrant Policy Center

California Rural Legal Assistance Foundation (CRLAF)

California Teachers Association

Center on Race, Poverty & the Environment

Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA)

Consumer Attorneys of California (CAOC)

Equality California

Friends Committee on Legislation of California

Immigration Center for Women and Children (ICWC)

Immigrant Youth Justice Alliance (CIYJA)

National Association of Social Workers

National Council of La Raza

Services Immigrant Rights, and Education Network (SIREN)

Opposition

None on file

Analysis Prepared by: Anthony Lew and Estevan Villareal/ JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 600

Author: Pan (D)

Amended: 5/18/15

Vote: 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), except that verification of immigration status and any discrimination based upon verified immigration status, where required by federal law, shall not constitute an Unruh violation. This bill also specifies that that these protections do not require the provision of services or documents in a language other than English, beyond that which is otherwise required by existing law, as specified. This bill specifies that the inclusion of these classifications under Unruh does not constitute a change in, but is declaratory of, existing law.

Senate Floor Amendments of 5/18/15 clarify that this bill does not require the provision of services or documents in a language other than English, beyond what is otherwise required by existing law.

ANALYSIS:

Existing law:

1. The Fair Employment and Housing Act (FEHA) prohibits 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.

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 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.

3. 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, or sexual orientation, everyone is entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments.

This bill:

1. Adds citizenship, primary language, and immigration status to the list of characteristics protected under Unruh.

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 Unruh.

3. Specifies that these Unruh protections shall not be construed to require the provision of services or documents in a language other than English, beyond that which is otherwise required by other provisions of federal, state, or local law, including specified state law relating to contracts.

4. Provides that these additions to Unruh do not constitute a change in, but are declaratory of, existing law. Provides that it is not the intent of the Legislature in amending Unruh to affect the protected status of any other classification, whether or not expressed in the Unruh statute.

Background

California law, FEHA and Unruh, 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. Unruh 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 Unruh, however, FEHA expressly provides that it is also an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace. (Gov. Code Secs. 12900-12996; 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 Unruh 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 Civil Rights 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 Act. In all of these cases, the court engaged in statutory analysis of Unruh 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 Unruh 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. 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 Unruh 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 Unruh and FEHA, as well as other anti-discrimination statutes.

Notably, in 1999, AB 407 (Cedillo, 1999), also sponsored by the Mexican American Legal Defense and Educational Fund (MALDEF), sought to add discrimination based on immigration status to Unruh, 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 Unruh and have similarly been vetoed.

This bill now seeks to add citizenship, primary language, and immigration status as protected classifications under Unruh.

Comment

As stated by 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 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 5/21/15)

California Civil Rights Coalition (co-source)

Mexican American Legal Defense and Educational Fund (co-source)

American Federation of State, County and Municipal Employees

Anti-Defamation League

Asian Americans Advancing Justice – Sacramento

ASPIRE

California Apartment Association

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

Equality California

Friends Committee on Legislation of California

Immigration Center for Women and Children

Immigrant Youth Justice Alliance

National Association of Social Workers

Services, Immigrant Rights, and Education Network

OPPOSITION: (Verified 5/21/15)

None received

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

5/21/15 11:08:32

**** END ****

 THIRD READING 

Bill No: SB 600

Author: Pan (D), et al.

Amended: 5/4/15

Vote: 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 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 prohibits the use of any language in the workplace. (Gov. Code Secs. 12900-12996; 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.

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 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 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

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015 - 2016 Regular Session

Bill No: SB 600 (Author:Pan)

Amended: Version: April 6, 2015

Hearing Date: May 12, 2015

Fiscal: No

Urgency: No

Consultant: RD

SUBJECT

Discrimination: citizenship: language: immigration status

DESCRIPTION

Under existing law, the Unruh Civil Rights Act prohibits business establishments from discriminating against any individual on the basis of certain characteristics such as sex, race, and national origin. This bill would add citizenship, primary language, and immigration status to the list of protected classes under the Unruh Civil Rights 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 violation. This bill would also specify that the inclusion of these classifications under Unruh does not constitute a change in, but is declaratory of, existing law.

BACKGROUND

California law, the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights 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 Civil Rights 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 Unruh, however, FEHA expressly provides that it is also an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace. (Gov. Code Secs. 12900-12996; 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 Civil Rights 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 Civil Rights 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 Act. In all of these cases, the court engaged in statutory analysis of the Unruh Civil Rights 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 Unruh to expressly cover new classifications. In 2005, AB 1400 (Laird, Ch. 420, Stats. 2005) specified that discrimination based on marital status and sexual orientation would not be tolerated in California by adding those classifications to Unruh. 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, Ch. 719, Stats. 2011) was enacted to expressly add “gender identity” and “gender expression” throughout both Unruh 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, Ch. 261, Stats. 2011) was enacted to add genetic information to both Unruh and FEHA, as well as other anti-discrimination statutes.

Notably, in 1999, AB 407 (Cedillo, 1999), also sponsored by the Mexican American Legal Defense and Educational Fund (MALDEF), sought to add discrimination based on immigration status to Unruh, 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 Unruh and have similarly been vetoed. (See Comment 4.)

This bill now seeks to add citizenship, primary language, and immigration status as protected classifications under the Unruh Civil Rights Act.

CHANGES TO EXISTING LAW

Existing law, the Fair Employment and Housing Act (FEHA), prohibits 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.)

Existing law, FEHA, provides that it is an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any 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.)

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, 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 would add citizenship, primary language, and immigration status to the list of characteristics protected under the Unruh Civil Rights Act.

This bill would specify 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 Unruh.

This bill would provide that these additions to Unruh do not constitute a change in, but are declaratory of, existing law. This bill would provide that it is not the intent of the Legislature in amending Unruh to affect the protected status of any other classification, whether or not expressed in the Unruh statute.

COMMENT

1. Stated need for the bill

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 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.

As stated by the Mexican American Legal Defense and Educational Fund (MALDEF), 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 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.

Co-sponsor, California Civil Rights Coalition (CCRC) writes: “CCRC strongly favors ensuring that our state laws clearly and comprehensively protect against bias and discrimination. Prevention of discrimination is far superior to remedying discrimination after it has occurred. CCRC therefore supports greater clarity in all of our civil rights laws. SB 600 addresses this goal with respect to business discrimination against immigrants. In addition, our economy and every business that contributes to our economy will thrive if the distortions in competition caused by discrimination are avoided. At the national level, immigration reform and immigrant integration remain politically controversial. Unfortunately, our state, as a critical part of the nation, cannot be totally immune from the influence of our nation’s increasingly contentious and debased public debate on the issue. We can, however, limit the impacts of the increasing demonization of immigrants in public discourse by enacting sensible legislation like SB 600.”

2. Bill seeks to clarify the prohibition against national origin discrimination under Unruh

This bill seeks to add citizenship, primary language, and immigration status to the list of protected classes under the Unruh Civil Rights Act and declares that it is a restatement of existing law. While no case has directly held that immigration status is covered within Unruh, it would appear consistent with existing law which prohibits arbitrary discrimination based upon personal characteristics. (Harris v. Capitol Growth Investors XIV (1991) 52 Cal.3d 1142.) In addition, existing law prohibits discrimination based upon national origin, of which immigrants are a subset . In order ensure protection against impermissible discrimination based upon the category of “national origin,” discrimination against members of any subset of that category must also be prohibited under existing law. This concept is supported by the history of the Unruh Act, and by analogous case law. (See discussion in Vaughn v. Neu Proler International (1990) 223 Cal.App.3d.1612, 1617, at fn. 2.)

Accordingly, as noted in the Background, this state’s Supreme Court has held that the conduct that is enumerated in Unruh (Section 51) is illustrative rather than restrictive. (In re Cox (1970) 3 Cal.3d 205, 212.) “Both the language of the statute and its history ‘disclose a clear and large design to interdict all arbitrary discrimination by a business enterprise.’ [ . . . ] ‘The act protects all persons from arbitrary discrimination . . . .’ It is not limited to a category of ‘protected classes.’ [ . . . ] The statutory right afforded ‘all persons’” by section 51 is of an individual nature. [ . . . ] Section 51 was derived “from the common law doctrine which imposed upon certain enterprises affected with a public interest ‘“the duty to serve all customers on reasonable terms without discrimination.”‘ [ . . . ] Under this common law principle, each member of the public, as an individual, possessed the right to obtain services of such enterprises. [ . . . ] The rights afforded by the Unruh Act similarly are enjoyed by all persons, as individuals.” (Vaughn, 223 Cal.App.3d at 1617 (internal citations omitted).)

As an earlier court explained further: “As employed in sections 51 and 52 of the Civil Code, the term ‘citizen’ is not used in a restricted sense -- that is, a citizen of a state or citizen of the United States -- but in the broad and unrestricted sense, implying that one is a resident of the state and as such entitled to invoke the jurisdiction of its courts to protect a right guaranteed to all, without reference to race or color, who reside within its jurisdiction.” (Prowd v. Gore (1922) 57 Cal.App. 458.) The Prowd court went on to state, “[i]n our opinion, it was not the intent of the legislature to restrict the operation of the statute to those only who were subjects of the United States government and exclude therefrom unnaturalized residents of foreign birth, whether white or black.” (Id.)

With respect to the bill’s addition of primary language, language, in many cases, is closely tied to an individual’s national origin, and arbitrary bans on foreign languages could easily be used to mask intentional discrimination on the basis of national origin. Public policy, thus, is arguably best served by prohibiting restriction on the usage of any language in business establishments. At the same time, staff notes that similar bills seeking to add language to Unruh’s protections have been vetoed, both: (1) based upon the belief that existing law already prohibits businesses from limiting the use of language without a business necessity and protects against discrimination based on language when it is used as a pretext to discriminate against persons due to their national origin; and (2) based upon concerns of the effect that would be had on businesses, and particularly small businesses that may violate this prohibition without any malice or bad intent. (See Comment 5.)

3. Vetoes of prior related legislation

AB 2521 (Napolitano) of 1994, would have added immigrant status and homelessness to a hate crimes law under the Penal Code. The bill was vetoed by then-Governor Pete Wilson, who stated: “Notwithstanding the obvious good intention to add these new classes to those already protected from hate crimes, there is need for great caution in doing so to prevent unintended consequences. That is especially true in the case of conscientious public officials, whose duties require enforcement of laws or regulations that expressly focus upon homelessness or immigration status.” Notably, unlike that bill, SB 600 provides that a verification of immigration status and any discrimination based upon verified immigration status, where required by federal law, shall not constitute an Unruh violation.

Similar to this bill, AB 407 (Cedillo, 1999) would have added immigrant status to Unruh. That bill was vetoed by then-Governor Gray Davis, who stated: “All persons should be free from discrimination. Under the Unruh Act all residents of California, regardless of immigration status, are already protected from discrimination based in their personal characteristics, specifically ethnic origin and nationality. This bill is unnecessary because the addition of ‘immigration status’ to the list of protected classes would not materially enhance the scope of protection that is now available under the Unruh Act.”

Also similar to this bill, SB 111 (Yee, 2011), as heard by this Committee, would have it a violation of the Unruh Civil Rights Act to adopt or enforce a policy that limits or prohibits the use of any language in a business establishment, unless the language is justified by a business necessity and notification has been provided of the circumstances and the time when the language restriction is required to be observed, and of the consequences for its violation. SB 111 also specified that the bill was not to be construed to impose a duty on any business establishment to provide customer service in a particular language unless that duty is otherwise required by law. SB 111 was ultimately vetoed by Governor Brown, who stated: “Existing law already prohibits businesses from limiting the use of language without a business necessity. In addition, existing law specifically protects against discrimination based on language when it is used as a pretext to discriminate against persons due to their national origin.” Governor Brown’s veto also expressed concern “that businesses, especially small businesses, could run afoul of this measure without any malice or bad intent, thereby subjecting themselves to costly litigation.”

SB 111, as heard in this Committee, was nearly identical to the enrolled version of SB 242 (Yee, 2009). In vetoing SB 242, the Governor stated: “While no one should be treated differently based on their race or national origin, no single business can accommodate every language spoken in California. Unfortunately, under this measure, any business that treats customers differently because the business may not be able to effectively communicate with the customer could then be required to justify such disparate treatment in a court of law. Since this measure would have the unintended effect of increasing frivolous lawsuits against businesses, I am unable to sign this bill.”

Support: American Federation of State, County and Municipal Employees (AFSCME); Anti-Defamation League; Asian Americans Advancing Justice – Sacramento; ASPIRE; California Immigrant Policy Center; California Rural Legal Assistance Foundation, Inc. (CRLAF); California Teachers Association; Center on Race, Poverty & the Environment; Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA); Consumer Attorneys of California (CAOC); Friends Committee on Legislation of California; Immigration Center for Women and Children (ICWC); Immigrant Youth Justice Alliance (CIYJA); National Association of Social Workers; Services Immigrant Rights, and Education Network (SIREN)

Opposition: None Known

HISTORY

Source: California Civil Rights Coalition; Mexican American Legal Defense and Educational Fund (MALDEF)

Related Pending Legislation: None Known

Prior Legislation:

AB 887 (Atkins, Ch. 719, Stats. 2011) See Background.

SB 559 (Padilla, Ch. 261, Stats. 2011) See Background.

SB 111 (Yee, 2011) See Comment 3.

SB 242 (Yee, 2009) See Comment 3.

AB 1400 (Laird, Ch. 420, Stats. 2005) See Background.

AB 407 (Cedillo, 1999) See Background and Comment 3.

AB 2521 (Napolitano, 1994) See Comment 3.

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