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