SB 600

Page 1

SENATE THIRD READING

STR Bill Id:SB 600

Author:(Pan)

As Amended Ver:May 18, 2015

Majority vote

SENATE VOTE: 30-9

Committee / Votes / Ayes / Noes
Judiciary / 8-1 / Mark Stone, Alejo, Chau, Chiu, Cristina Garcia, Holden, Maienschein, O'Donnell / Wagner

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