BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1400
                                                                  Page  1


          ASSEMBLY THIRD READING
          AB 1400 (Laird)
          As Amended April 11, 2005
          Majority vote 

           JUDICIARY           5-3                                         
           
           ----------------------------------------------------------------- 
          |Ayes:|Jones, Evans, Laird,      |     |                          |
          |     |Levine, Lieber            |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Harman, Haynes, Leslie    |     |                          |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 

           SUMMARY  :  Harmonizes non-discrimination provisions of the Civil  
          Code regarding business establishments, real property and other  
          matters.  Specifically,  this bill  :  

          1)Adds sexual orientation and marital status to the Unruh Civil  
            Rights Act's (Unruh Act) guarantee of full and equal  
            accommodations and services in business establishments, as  
            well as to Civil Code Section 51.5 prohibiting discrimination  
            by business establishments; Section 51.7 prohibiting violence  
            and intimidation by any person; Section 51.8 regarding  
            non-discrimination in the granting of franchises by  
            franchisors; and, Section 53 regarding discriminatory  
            restrictions in written instruments related to real property.   
            Clarifies that the listed characteristics in these statutes  
            are not exclusive.

          2)Conforms the types of protected characteristics expressly  
            identified in the Unruh Act with the related  
            non-discrimination provisions immediately following the Unruh  
            Act regarding other prohibited discrimination, such as  
            violence and threats of violence, discrimination against  
            franchisees, and discrimination in real property transactions.

          3)Defines religion, sex, sexual orientation, perceived  
            characteristics and other terms consistently with the  
            definitions used in the cognate provisions of the Fair  
            Employment and Housing Act.









                                                                  AB 1400
                                                                  Page  2


          4)Makes findings and declarations relevant to the foregoing.

           FISCAL EFFECT  :  None

           COMMENTS  :  The author states that the purpose of this bill is to  
          clarify that gender identity, marital status and sexual  
          orientation are protected classes under the Unruh Act and  
          related provisions.  The author adds, "[w]hile the Unruh Act  
          does not expressly mention [all] ? grounds of discrimination in  
          which business establishments in California are forbidden to  
          engage, the California Supreme Court ? has made clear that the  
          Unruh Act also prohibits arbitrary discrimination based on other  
          non-enumerated 'personal characteristics,' including sexual  
          orientation, physical appearance, and family status.  The Court  
          has also made it clear that the Act should be interpreted  
          broadly to prohibit arbitrary discrimination including  
          discrimination based on geographical origin, physical  
          attributes, and individual beliefs.  This bill affirms this  
          principle by including [a non-statutory declaration] that the  
          identification of particular bases of discrimination in these  
          provisions is illustrative and not restrictive."

          The author further states, "Because these particular bases of  
          discrimination are not explicitly listed in the Unruh Act and  
          related provisions (except for sexual orientation in Civil Code  
          section 51.7), there is an assumption that they are not  
          protected classes covered by these laws.  This assumption has  
          led to unnecessary litigation leading to erroneous decisions at  
          the trial and appellate court levels.  This proposal will remedy  
          this problem by making it clearer that these specified  
          characteristics are covered by the Unruh Act and related  
          provisions." 

          This bill codifies existing case law recognizing that sexual  
          orientation discrimination is prohibited by the Unruh Act  
          despite not being specifically cataloged in the list of  
          protected characteristics.  While the Unruh Act does not  
          expressly mention sexual orientation as a ground of  
          discrimination in which business establishments in California  
          are forbidden to engage, the Supreme Court has rejected the  
          argument that the Unruh Act's ban on discrimination reaches only  
          the classifications specified in the Act's text.  (See  Harris v.  
          Capital Growth Investors XIV  , 52 Cal.3d 1142, 1154-55 (1991).)   
          Instead, the courts have made it clear that the Unruh Act also  








                                                                  AB 1400
                                                                  Page  3


          prohibits arbitrary discrimination based on other non-enumerated  
          "personal characteristics," including sexual orientation.   
          (  Stoumen v. Reilly  , 37 Cal. 2d 713, 715-16 (1951);  Hubert v.  
          Williams  , 133 Cal.App.3d Supp. 1, 5 (1982);  Rolon v. Kulwitzky  ,  
          153 Cal.App.3d 289 (1984).)
          In order to make the Unruh Act's coverage of sexual orientation  
          discrimination apparent from a plain reading of the text, this  
          bill would codify the case law holding that the Unruh Act  
          prohibits sexual orientation discrimination.

          This bill would add marital status to the list of  
          characteristics specifically enumerated in the Unruh Act,  
          consistently with existing principles of construction and  
          contrary to erroneous interpretations by appeals courts.  As  
          noted above, the Supreme Court has repeatedly instructed that  
          the Unruh Act prohibits arbitrary discrimination by business  
          establishments on the basis of characteristics that are similar  
          to but not specifically included among those enumerated in the  
          statute.  Accordingly, the Court has recognized that arbitrary  
          discrimination prohibited by the Act includes not only sexual  
          orientation discrimination but also discrimination on the basis  
          of age, families with children, and unconventional dress and  
          physical appearance.  (  In re Cox  , 3 Cal. 3d 205, 216 (1970),  
           Marina Point Ltd. v. Wolfson  , supra;  O'Connor v. Village Green  
          Owners Association  , supra.)  

          The author argues that, assuming the  Harris  criteria are to be  
          applied, a couple's marital status meets each of the criteria.   
          Likewise, the author argues, just as a landlord has no  
          legitimate justification to refuse to rent an apartment to a  
          couple because they are not married to one another (  Smith v.  
          Fair Employment and Housing Commission , 12 Cal.4th 1143, 1155,  
          1160 (1996)), there is no legitimate business interest that  
          would justify refusal by a business establishment to provide  
          otherwise available benefits to a couple because they are not  
          married to one another.  Moreover, no adverse consequences would  
          flow from prohibiting businesses from engaging in this form of  
          discrimination.  Thus, the author argues, existing case law  
          already demands the recognition of marital status as a protected  
          characteristic. 


           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 









                                                                  AB 1400
                                                                  Page  4



                                                                FN: 0009656