SB 320: Gender: discrimination: pricing.

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SB 320 (Author:Jackson)

Version: March 28, 2019

Hearing Date: April 30, 2019

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

Gender: discrimination: pricing

DIGEST

This bill extends the Gender Tax Repeal Act’s prohibition on gender-based price discrimination. The Act currently prohibits businesses from charging men different prices than women, and vice versa, for services. This bill would extend that prohibition to the sale of consumer goods, as well.

EXECUTIVE SUMMARY

In 1995, California enacted the Gender Tax Repeal Act in response to reports that businesses were charging women more than men for things like dry-cleaning a shirt or getting a haircut, even when the cost of providing the service was the same regardless of the customer’s gender. The Act outlawed such gender-based price discrimination, but it applied only to services, not to the sale of goods. There are studies showing that women pay, on average, seven percent more for products marketed to women, than men pay for a similar product marketed to them. Over time, this adds up. This gender tax, or the “pink tax” as it is sometimes known, has been estimated to cost women over $1,000 per year. Combined with the wage gap, the pink tax acts as a double-whammy working systematically against the financial success of women. To address this problem, this bill would extend the Gender Tax Repeal Act’s prohibition on gender-based price discrimination to the sale of goods.

The bill is sponsored by the California Consumer Federation. Support is from civil liberties advocates. Opposition is from business and trade organizations, who contend that it would lead to increased litigation and that the gender of a good cannot be determined without reinforcing gender stereotypes.

PROPOSED CHANGES TO THE LAW

Existing state law:

1. Entitles all Californians to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments, thus prohibiting discrimination on any arbitrary basis, including but not limited to sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (The Unruh Civil Rights Act, Civ. Code § 51.)
2. Prohibits business establishments from charging different prices for services of similar or like kind based on the consumer’s gender. (Gender Tax Repeal Act, Civ. Code § 51.6(b).)
3. Allows price differences based specifically upon the amount of time, difficulty, or cost of providing the services. (Civ. Code § 51.6(c).)
4. Requires specified business establishments, including tailors, barbers or hair salons, and dry cleaners, to clearly and conspicuously disclose to customers, in writing, the pricing for each of the 15 most frequently requested services provided by the business. (Civ. Code § 51.6(f)(1), (2), (6).)
5. Requires specified business establishments, including tailors, barbers or hair salons, and dry cleaners, to provide customers with a complete written price list upon request and to display a sign indicating that gender-based pricing discrimination for services is prohibited in a conspicuous place. (Civ. Code § 51.6(f)(3)-(4).)
6. Provides that, aside from a specified civil penalty for price list and signage violations, the remedies for a violation of the Gender Tax Repeal Act are the remedies that are generally available for an Unruh Civil Rights Act violation. (Civ. Code § 51.6(d).)
7. Provides that any person who denies, aids or incites a denial, or makes any discrimination or distinction contrary to the Unruh Civil Rights Act or to the Gender Tax Repeal 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 $4,000, and any attorney’s fees that may be determined by the court. (Civ. Code § 52(a).)

This bill extends the Gender Tax Repeal Act’s prohibitions against gender-based pricing discrimination to consumer goods of a similar or like kind.

COMMENTS

1. Evidence of the problem of gender-based price discrimination

This bill seeks to extend existing legal protections against gender-based price discrimination for services under the Gender Tax Repeal Act to consumer goods.

When the Gender Tax Repeal Act was first enacted in 1995 (AB 1100 (Speier, Ch. 866, Stats. 1995)), proponents relied in part on data gathered in conjunction with a 1994 interim hearing on gender discrimination in the pricing of products and services conducted by the Assembly Consumer Protection, Governmental Efficiency & Economic Development Committee. That hearing documented that “adult women effectively pay a gender tax which costs each woman approximately $1,351 annually, or about $15 billion for all women in California. The gender tax is the additional amount women pay for similar goods and services due to gender-based discrimination in pricing.” (Sen. Judiciary Com., analysis of AB 1100 (1995-1996 Reg. Session), Aug. 22, 1995, p. 5.) Several other studies, books, and reports further documented gender-based discrimination in pricing. A survey of businesses in five major California cities by the Assembly Office of Research (AOR) in 1994, Survey of Haircuts & Laundry Services in California,” found that “women in California pay on the average $5 more for a haircut and $1.71 more to have a shirt laundered. The AOR survey also found that 64 percent of those establishments surveyed in five major California cities charged more to launder a woman’s white cotton shirt than a man’s.” (Ibid.)

In support of this bill, the proponents now cite a December 2015 report by the New York City Department of Consumer Affairs, entitled “From Cradle to Cane: The Cost of Being a Female Consumer.” As summarized by the author, after looking at nearly 800 products with clear male and female versions from more than 90 brands sold at two dozen New York City retailers, both online and in stores, the 2015 report came to the following conclusions:

42 percent of the time, women’s products cost more than similar products for men and on average cost 7 percent more. Specifically:

• 7 percent more for toys and accessories
• 4 percent more for children’s clothing
• 8 percent more for adult clothing
• 13 percent more for personal care products
• 8 percent more for senior/home health care products.

In all but five of the 25 product categories analyzed, products for female consumers were priced higher than those for male consumers.

Some of the highest price differences were for products that are arguably necessities. Women’s shampoo and hair conditioner cost an average of 48 percent more. Supports and braces cost 15 percent more, personal urinals cost 21 percent more, and canes cost 12 percent more. Often times the price differences were egregious. A red scooter labeled for boys was 25 dollars, while an identical pink scooter labeled for girls was 50 dollars, a 100 percent price difference.^[1]

A 2018 study by the federal Government Accountability Office (GAO) came to a more mixed conclusion. Of 10 categories of personal care products that the GAO studied, it found significantly higher prices for women in five of those categories, but higher prices for men in two others (shaving gel and non-disposable razors), and mixed results or no difference for the remainder.^[2] The GAO concluded that “the target gender for a product is a significant factor contributing to price differences identified,” but decided that it “did not have sufficient information to determine the extent to which these gender-related price differences were due to gender bias as opposed to other factors, such as different advertising costs.”^[3]

2. Unruh Civil Rights Act arguably makes gender-based price discrimination unlawful

California 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. (Civ. Code § 51.) The Act has been interpreted to prohibit all forms of “arbitrary discrimination” by a business establishment in the provision of goods and services and the offering of accommodations. (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790; Harris v. Capitol Growth Investors XIV (1991) 52 Cal.3d 1142.)

With respect to gender discrimination, specifically, in Koire v. Metro Car Wash (1985) 40 Cal.3d 24, the California Supreme Court held that two specific acts of gender price discrimination constituted arbitrary discrimination under the Unruh Act: a “Ladies Day” at a car wash during which women paid less for a car wash than men, and a “Ladies’ Night” at a bar, during which women could be admitted to the bar for free, but men had to pay a cover charge. The Koire court concluded its opinion with a broad statement about the illegality of gender price discrimination, stating that: “[t]he plain language of the Unruh Act mandates equal provision of advantages, privileges and services in business establishments in this state. Absent a compelling social policy supporting sex-based price differentials, such discounts violate the Act.” (Id. at 38.)

It could be argued that a car wash involves services, and that a cover charge involves access to a business establishment generally, rather than the price of specific goods. The text of the Unruh Act does not mention goods specifically. It says that “[a]ll persons within the jurisdiction of this state are […] entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code § 51(b).) Yet, “[t]he Unruh Civil Rights Act […] is to be liberally construed with a view to effectuating the purposes for which it was enacted and to promote justice.” (Rotary Club of Duarte v. Board of Directors (1986), 178 Cal. App. 3d 1035, 1046, cert. den. (1987), 481 U.S. 537.)

It is hard to see how a customer could obtain full and equal advantage from a business selling goods if the pricing is discriminatory. While there does not appear to be a recorded case that is directly on point, at least two of the cases interpreting the Unruh Act suggest that goods or products are covered as well, by making reference to them in the context of the Act’s protections. (See, Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal. 3d 493, “there is no indication that the Legislature intended to broaden the scope of CC § 51, requiring equal accommodations in all business establishments, to include discriminations other than those made by a business establishment in the course of furnishing goods, services or facilities to its clients, patrons or customers”; Surrey v. TrueBeginnings, LLC (Cal. App. 4th Dist. Nov. 18, 2008), 168 Cal. App. 4th 414, 416, “a person must tender the purchase price for a business’s services or products in order to have standing to sue it for alleged discriminatory practices relating thereto.” Emphasis added.)

Accordingly, the Unruh Civil Rights Act may already prohibits gender-based price discrimination, irrespective of the Gender Tax Repeal Act, not only with respect to services, but with respect to goods and other business accommodations as well.

Indeed, when this Committee first reviewed and approved the Gender Tax Repeal Act’s enabling legislation, AB 1100 (Speier, Ch. 866, Stats. 1995), the Committee analysis noted that the “clear statement by the [Koire] Court about the illegality of gender price discrimination” made it “difficult to claim that the persistence of gender discrimination is because of an ambiguity in present law. Rather, it appears clear that there is inadequate enforcement of existing law, and inadequate education efforts to inform businesses and consumers about the illegality of this practice.” (Sen. Judiciary Com., analysis of AB 1100 (1995-1996 Reg. Session), Aug. 22, 1995, p. 6.) That being said, proponents asserted that an explicit prohibition against gender-based pricing discrimination was needed to clarify the Unruh Civil Rights Act and to try to address the persistent problem of gender-based discrimination in the sale of services, particularly in relation to haircuts, laundry, dry cleaning, and alterations. (Id. at 5. See also Comment 2 for more about the documented prevalence of gender-based price discrimination at the time AB 1100 was enacted.) This bill now seeks to explicitly prohibit gender-based price discrimination for goods, based on similar information documenting that gender-based price discrimination persists among businesses in the context of consumer goods.

3. This bill would extend the Gender Tax Repeal Act’s gender-based price discrimination prohibitions for services to goods

As noted in Comment 2 above, the Gender Tax Repeal Act currently applies only to gender-based price discrimination for services, whereas the Unruh Civil Rights Act arguably would prohibit gender-based price discrimination more broadly. When AB 1100 (Speier, Ch. 866, Stats. 1995) was first considered, it was intentionally limited to services offered by businesses because of a veto by then-Governor Pete Wilson of a similar bill the prior session, AB 2418 (Speier, 1994), which would have applied to prohibit gender-based price discrimination for both goods and services.

At the time, this Committee specifically noted the narrow application of AB 1100 to the provision of services and questioned whether the bill should instead apply to any business practice to which the Unruh Civil Rights Act would apply, warning that:

By limiting the application of this new specific discrimination section to services, this bill would probably be interpreted as having amended sub silentio the general prohibition in the Unruh Act, such that it no longer would prohibit gender price discrimination for non-services.

This bill’s limitation to services clearly excludes application of this bill to the sale of goods. . . . In addition to excluding goods, this bill might also not apply to the offering of accommodations, which is the traditional purview of private discrimination statutes like the Unruh Civil Rights Act. One of the instances addressed by Koire demonstrates the potential problem: is a cover charge to enter a bar a “service?” Certainly it is not a service in the sense that performing a haircut or a car wash is. (Id. at 9.)

While the Committee analysis noted the exclusion of goods might have a less significant impact “because most pricing practices for goods could probably be justified as being non-arbitrary and based on a permissible factor,” it also cautioned that insofar as gender-based pricing still occurs (such as where bars advertise nights during which the price of beer was less for women than for men) there is cause for concern that such practices might be made legal by the bill’s limitation to services. (Ibid.)

Seeking to now extend the protections of the Gender Tax Repeal Act to goods, the author of this bill points to the New York state study as evidence that, even 24 years after the Koire decision, it is still not safe to assume that most pricing for goods are non-arbitrary and based on a permissible non-gender based factor.

4. Remedies

The remedies available for a violation of the Gender Tax Repeal Act are the same as those available for any violation of the Unruh Civil Rights Act. Specifically, any person who engages in gender-based pricing discrimination 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 $4,000, and any attorney’s fees that may be determined by the court. (Civ. Code § 52(a).)

Opponents of this bill believe that these remedies are problematic. They assert that, even where a price differential could be explained by some gender-neutral factor deep in the manufacturing process, supply chain, or differences in demand, the cost of tracking down that justification may be quite high. That could expose them to the possibility that unscrupulous plaintiffs’ attorneys will go shopping, find price differentials, send demand letters, and seek settlements that the defendant companies would be crazy to refuse because the cost of defending against the suit is so high by comparison. To back up this narrative, the opponents cite the example of a southern California attorney who was caught trying to force small, immigrant-owned businesses to make him settlement payments for alleged violations of the Gender Tax Repeal Act’s existing prohibition on gender-based price discrimination for services.

While it could be difficult for a company to track down the origin of some price differentials, that fact also suggests that lawsuits based on gender discrimination in the pricing of goods would be rare. Assuming that the courts applied something like the usual civil rights burden-shifting jurisprudence to a claim under this bill, the consumer would presumably bear the ultimate burden of showing that the price differential was, in fact, based on gender, not the justification proffered by the business. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) Knowing that, most plaintiffs’ counsel would probably be reluctant to bring claims unless they had good reason to believe they could prove that gender was indeed the factor behind the difference in price observed. This may explain why there do not seem to have been any recorded cases in which plaintiffs brought suit under the Unruh Civil Rights Act for gender-based pricing discrimination in relation to consumer goods specifically. There could be some less calculating or less ethical counsel who might try to bring dubious cases, as in the example of the southern California attorney referenced by the opposition. In that regard, however, it bears noting that the attorney in question was subsequently convicted of extortion and hate crimes for his tactics.^[4]

5. Practical challenges for identifying gender discrimination in the pricing of goods

In addition to concerns about the remedies, opponents to the bill raise three concerns about whether and how, in practice, it would be possible to ferret out instances in which gender-based pricing discrimination is taking place.

1. Determining the association between a product and gender

First, the opponents note that it may not always be possible to tell what gender of customer a product is designed for or marketed to. If a pair of socks is otherwise identical, but one pair is labeled “men’s socks” while the other pair says “women’s socks” the case is relatively simple. Similarly, if the same product sells at one price in an area of the store designated as the “men’s department” and sells for another price in the area marked “women’s department,” the matter would be clear. If the only difference between two products is their color, their scent, their packaging, or other features that are only subjectively associated with a particular gender, figuring out whether the product is designed or intended for a man or a woman may be difficult to ascertain.

Presumably, judges and juries could be trusted to sort this out, as part of their fact-finding role, in any individual case. The author is considering adding some factors or indicia that could help guide fact-finders in determining when a product is intended for or marketed to a particular gender.

Still, the opponents contend that the very effort to try to categorize products in this way could reinforce the sorts of gender stereotypes that can oppress individual expression and that run contrary to California’s evolving understanding about the nature of gender generally.

1. Defining what is a substantially similar or like product

Another potentially challenging aspect of the bill is how to determine when two products are “substantially similar or like.”

As in the case of a product’s gender association, judges and juries could presumably determine what are, and are not, substantially similar products. The law regularly entrusts such decisions to a trier of fact, like determining what a “reasonable person” would do in a tort case alleging negligence. Nonetheless, additional guidance can only help the public, parties, and triers of fact to make this determination. With that in mind, the author proposes to add a definition of “substantially similar” products for the purposes of the bill. The definition is modified from a bill currently pending in the U.S. Congress by California Representative Jackie Speier, which would also outlaw gender-based pricing discrimination.

1. Separating the factor of gender from other causes for price differentials

The opponents further contend that, because the variables that go into price setting are nearly infinite, it will always be difficult to distinguish when gender, alone, is the basis for a price differential as opposed to some other factor. To take the classic example, a blue razor could cost less than a pink razor on any given day and at any given retailer because the retailer thinks that women will never notice the cheaper blue razors over in the men’s aisle and can get away with charging more as a result. But the pink razor might cost more for myriad other reasons: the retailer may be trying to move the blue razors quickly to make space for other inventory, for example, or the manufacturer may charge the retailer different prices. The manufacturer, too, may have reasons for charging different prices that have nothing to do with gender: there may have been a strike at the factory when the pink razors were being made; the dye for the pink plastic might cost more; or maybe the pink razors are made at a location further away from the retailer, raising transportation costs.

To all of this, it can be responded that the bill does not prohibit different prices for substantially similar goods generally. It only prohibits such price differences where that differential is based on gender. The author proposes an amendment that would further emphasize this point. Thus, any of the non-gender factors discussed above would not be actionable under this bill. Still, the opponents contend that, in order to protect themselves against litigation under this bill, they would need to maintain documentation of every detail that might affect the ultimate price of their goods so as to be able to demonstrate that gender did not play a role.

In addition, there are at least two circumstances in which things could get more complicated: differences in demand and differences in marketing costs. If there is more demand for pink scooters than blue scooters, say, could a business charge more for the pink scooters under this bill? On the one hand, the reason for the price differential is not gender, it is classic economic theory. On the other hand, there may be more demand for the pink razor simply because the cheaper, blue razor is hidden away over on the men’s aisle. To further complicate matters, supposing the business knows there is more demand for a pink version of a scooter than a blue one because its marketing surveys reveal that many girls prefer a pink scooter and they (or their doting parents) are willing to pay more to get it. If the business goes ahead and charges more for the pink scooters in this scenario, is it doing so because of gender? Or is it responding to the laws of supply and demand?

Marketing poses similar complexities. Supposing that a business embarks on a massive marketing push, signing a big-name celebrity actress to promote a certain pain relief medication. The company cuts ads featuring the actress and depicting women, exclusively, taking the medication and getting relief from it. The company then sells the pills in a bottle with a big picture of the celebrity actress on it, and retailers place it in the women’s aisle. Meanwhile, the same company sells the same medication in a plain bottle over on the men’s aisle and does no marketing for it. Under this bill, could the company charge more for the pills endorsed by the actress? On the one hand, the price differential could be justified by the greater marketing costs associated with the actress-endorsed product. On the other hand, that marketing cost is clearly associated with gender.

In short, many things influence the price of a good. Businesses worry that, if this bill is enacted, it may be expensive and burdensome to show they are not discriminating. In some cases, the line between what is gender-based pricing and what is gender-neutral pricing may not even be crystal clear. The bill trusts people – including, ultimately, judges and juries if necessary – to exercise their common sense to sort this out.

6. Proposed amendments

In order to address the issues set forth in the Comments, above, the author proposes to incorporate amendments into the bill that would:

• add a definition for what constitutes a substantially similar product for purposes of the bill; and
• clarify that the bill only applies to differential pricing as to the same brand.

The specific amendments are as follows:

Amendment 1

On page 2, in line 7, after the period insert:

Nothing in this paragraph prohibits price differences based specifically on the amount of time, difficulty, or cost of providing the services.

Amendment 2

On page 2, in line 9, strike out “goods of a”, strike out lines 10 to 14, inclusive, and insert:

any two consumer products from the same manufacturer that are substantially similar if such products are priced differently based on the gender of the individuals for whose use the products are intended or marketed. For purposes of this paragraph, all of the following apply:

(A) Two products are substantially similar if there are no substantial differences in the materials used in the product, the function of the product, and the functional design or features of the product.

(B) A difference in color or packaging among consumer products shall not, by itself, be construed as a substantial difference.

(C) Nothing in this paragraph prohibits price differences based on bona fide factors other than gender, including when a retail establishment passes through a price to the consumer that is set by a manufacturer, distributor, or other entity that is beyond the retailer’s control.

Amendment 3

On page 2, in line 15, strike out “(d)” insert:

(c)

Amendment 4

On page 2, in line 20, strike out “(e)” and insert:

(d)

Amendment 5

On page 2, in line 23, strike out “(f)” and insert:

(e)

7. Arguments in support of the bill

According to the author:

As we strive to close the gender pay gap once and for all, it is time to finish the job of repealing the gender tax as well. Although California’s Gender Tax Repeal Act seeks to ensure that women are not charged more than men for the same services, there is ample evidence that the gender tax is alive and well when it comes to consumer goods. In effect, women are paying more just for being women. Over time, the gender tax adds up to thousands of dollars per woman and billions of dollars across the economy. If we truly believe that women should have an equal opportunity to survive and to thrive financially, that ought to be unacceptable to everyone. It’s time to repeal the whole gender tax – for goods as well as services – once and for all.

As sponsor of the bill, the Consumer Federation of California writes:

The pink tax increases the economic burden on California women and creates a gender-based disparity. SB 320 would address this disparity and ensure women’s products, that are substantially similar to men’s products, are not priced higher. This will ensure women will be able to reap the benefits of their economic power as consumers.

In support, the American Civil Liberties Union of California writes:

Women in California already earn an estimated 88 cents for every dollar a man earns, which amounts to an average annual wage gap of more than $7,000. Gender-based price discrimination in the marketplace compounds this problem by further eroding the purchasing power of women, resulting in women paying thousands of dollars more over the course of their lives to purchase similar products as men. SB 320 ameliorates this problem […].

8. Arguments in opposition to the bill

In opposition to the bill, the California Chamber of Commerce writes:

SB 320 will expose small and large businesses to the same costly litigation that has been plaguing the business community with regard to disability access, or minimal price differences or “substantially similar” or “like kind” goods that are based on gender neutral factors. Additionally, in an effort to comply, SB 320 will force business into determining the gender of various products by engaging in gender stereotyping based upon traditional social expectations that scholars have urged businesses to avoid.

In further opposition to the bill, the California Manufacturers & Technology Association writes:

Gouging prices based solely on the gender of the consumer is wrong. But SB 320 captures more than bad actors; with no provisions that require a demonstration of an intent to discriminate or that otherwise prevent trapping legitimate business activity in its net. Manufacturers know that there are many factors of production unseen to consumers that are reflected in the price. We need a more measured approach to being resolving this issue.

SUPPORT

Consumer Federation (sponsor)
American Civil Liberties Union of California

OPPOSITION

Auto Care Association

California Automotive Wholesalers Association

California Chamber of Commerce

California Grocers Association

California Lodging Industry Association

California New Car Dealers Association

California Restaurant Association

California Retailers Association

Citizens Against Lawsuit Abuse

Civil Justice Association of California

Costa Mesa Chamber of Commerce

El Centro Chamber of Commerce

Fresno Chamber of Commerce

Greater Riverside Chamber of Commerce

Hayward Chamber of Commerce

Household and Commercial Products Association

La Verne Chamber of Commerce

Long Beach Area Chamber of Commerce

National Federation of Independent Business

North Orange County Chamber

Oroville Area Chamber of Commerce

Oxnard Chamber of Commerce

Palmdale Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Simi Valley Chamber of Commerce

Torrance Area Chamber of Commerce

Toy Association

Valley Industry & Commerce Association

Victor Valley Chamber of Commerce

RELATED LEGISLATION

Pending Legislation: AB 1607 (Boerner Horvath, 2019) requires government agencies that issue business licenses to provide licensees with a notice about the Gender Tax Repeal Act upon issuance of a business license. This bill is in the Assembly Appropriations Committee.

Prior Legislation:

AB 1576 (Levine, 2017) would have prohibited a business from discriminating with respect to the price charged for the same, or substantially similar, goods because of the gender of the targeted user of the good, as specified. The bill would have limited enforcement of its terms to the Attorney General, a district attorney, or a city attorney through prosecution of a civil action for preventive relief. AB 1576 was gutted and amended, while pending before the Assembly Judiciary Committee, to address other matters.

SB 899 (Hueso, 2016) would have prohibited a business from discriminating with respect to the price charged for the same, or substantially similar, goods because of the gender of the targeted user of the good, as specified. SB 899 died in the Senate Appropriations Committee.

AB 1088 (Jackson, Ch. 312, Stats. 2001) required specified business establishments to disclose in writing the pricing for each standard service, to display a sign stating that it is illegal to base pricing on gender and that a complete price list is available upon request, and to provide the customer with a copy of the complete price list upon request. The bill made a business establishment failing to correct a violation of these requirements within 30 days of receiving written notice of a violation liable for a civil penalty of $1,000.

AB 1100 (Speier, Ch. 866, Stats. 1995) specifically prohibited businesses from engaging in price discrimination based on gender with respect to services of a like or similar kind, while also clarifying that the prohibition does not apply to price differentials based upon the amount of time, difficulty, or cost of providing the service.

AB 2418 (Speier, 1994) would have prohibited gender-based pricing discrimination for both goods and services. AB 2418 was vetoed by then-Governor Pete Wilson.

SB 1288 (Calderon, Ch. 535, 1994): (1) directed the Department of Consumer Affairs (DCA) to provide notices to licensed barbers and cosmetologists to remind them that the Unruh Civil Rights Act prohibits gender-based pricing practices; (2) required DCA to prepare a summary of gender price discrimination-related complaints received by its licensing boards; (3) required DCA to make available to the public consumer information on gender-based pricing; and (4) quadrupled the minimum amount of punitive damages awardable to a plaintiff in a claim under the Unruh Civil Rights Act.

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

1. From Cradle to Cane: The Cost of Being a Female Consumer (Dec. 2015) New York City Department of Consumer Affairs https://www1.nyc.gov/assets/dca/downloads/pdf/partners/Study-of-Gender-Pricing-in-NYC.pdf (as of Apr. 28, 2019). ↑

2. Gender-Related Price Differences for Goods and Services (Aug. 2018) U.S. Government Accountability Office https://www.gao.gov/assets/700/693841.pdf (as of Apr. 27, 2019). ↑

3. Ibid. ↑

4. Weiss, Lawyer and Wife Convicted of Extortion for Filing Meritless Suits Alleging Gender Price Bias (Dec. 4, 2018) American Bar Association Journal. http://www.abajournal.com/news/article/lawyer_is_convicted_of_extortion_for_filing_meritless_suits_alleging_gender (as of Apr. 28, 2019). ↑