Understanding the Unruh Civil Rights Act Basic elements of an Unruh Civil Rights Act Violation Remedies and defenses available under the Unruh Civil Rights Act Recent trends in Unruh Civil Rights Act Litigation  February 16, 2011 Allison Nobert, DFEH Staff Counsel Greg Adler, Esq.

DFEH MISSION The mission of the Department of Fair Employment and Housing is to protect Californians from employment, housing and public accommodations discrimination, and hate violence.

Jurisdiction The DFEH enforces the Fair Employment and Housing Act (FEHA), Unruh Civil Rights Act, and Ralph Act.   Investigation. Conciliation and Mediation. Prosecution before the Fair Employment and Housing Commission and in civil court. The Department's jurisdiction extends to individuals, private or public entities, housing providers, and business establishments within the State of California.

Unruh Act: California Civil Code section 51 "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

Elements Business Establishment/Place of Public Accommodation. Protected Basis/Protected Class. Intentional discrimination of a person in that Protected Class. Protected person was harmed.

Business: A non-exhaustive list Bars and Nightclubs Restaurants Hotels and Motels Retail Shops Golf Courses Fitness Clubs or Gyms Theaters Hospitals Barber Shops and Beauty Salons Non-Profit Organizations (open to the public) Public Agencies Housing Accommodations

What is a Place of Public Accommodation? Rotary Club of Duarte v. Board of Directors (1987) 178 Cal.App.3d 1035. A non-profit club was a business establishment under the Unruh Act because it offered its members substantial “commercial advantages and business benefits.” Membership in these kinds of organizations is a privilege or advantage under the Unruh Act. Thus, termination of membership based on sex is prohibited. Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594. By offering the public access to its facilities, the County Club became a business establishment under the Unruh Act and could not exclude women. Ibister v. Boys’ Club of Santa Cruz (1985) 40 Cal.3d 72. A non-profit activities center for boys was a place of public accommodation, and excluding an entire class of patrons, such as women, was illegal.

Protected Basis Sex Race Color Religion Ancestry national origin Disability medical condition marital status sexual orientation

Intentional Discrimination Pack v. Fort Washington II (E.D.Cal.2009) 689 F.Supp.2d 1237, Unruh Civil Rights Act protects only against intentional discrimination. Discriminatory Subterfuge So-called “Ladies Night” promotions are illegal. Knowing this, some businesses try to get around the law by having “Skirt Night” or “Lipstick Night.”

Examples Comparing one protected basis to another: Denying access to a business establishment to members of a certain sex is just as illegal as the denial of access on the basis of race, religion, or sexual orientation. Comparing discrimination against members within a protected basis: Charging men higher prices for drinks or admission to bars and nightclubs is just as illegal as doing the same to women.

Sex Discrimination: Not Just a problem for other countries Play Video

Segregation Still Prominent in California

Sex Discrimination with Health Clubs Same-sex health clubs or same-sex-only areas within coed health clubs. This type of discrimination on the basis of sex is unlawful. Businesses attempt to justify these practices by arguing that privacy allows the exclusion of members of the opposite sex from certain exercise areas. However, there is no reasonable expectation of privacy outside of the locker room areas. It is driven by some customers’ preference to exercise outside the presence of members of the opposite sex, not a genuine privacy concern.

Continued… Customer preference is an illegitimate basis for discrimination. Diaz v. Pan American World Airways, Inc. (5th Cir. 1971) 442 F.2d 385 (airline could not refuse to hire male flight attendants simply because male customers preferred female flight attendants). Businesses will sometimes attempt to disguise customer preference as something else (e.g., “privacy”).

Sex Based Discrimination Cont’… Angelucci v. Century Supper Club (2007) 41 Cal.4th 160. It was a violation of the Unruh Act for a night club to charge its male patrons a higher price for admission. The patrons need not affirmatively request nondiscriminatory treatment, but rather, are entitled to it. The Unruh Act imposes a compulsory duty upon business establishments to serve all persons without arbitrary discrimination.

Religion “No Hats” policies and dress codes: Some businesses try to maintain a certain “image”. Under the guise of maintaining such an image, some businesses employ various dress codes and “no hats” policies. However, this is often only applied to persons wearing turbans or headscarves, or applied in a discriminatory manner only to members of certain racial groups.

Race

Examples of Unfairly Enforced Business Policies “No hats” policy only applied only against Sikh men wearing turbans. “No sportswear” and “no baggy jeans” policy applied only against African-Americans and Hispanics. “No tank tops” policy applied only against men.

Disability Right to have access to a facility regardless of disability. Antoninetti v. Chipotle Mexican Grill, Inc. (9th Cir. 2010) 614 F.3d 971. (Not an Unruh case; ADA case but good example of creativity applied in a business.) Right to have one’s service animal or companion animal in a place of public accommodation. Lentini v. California Center for the Arts, Escondido (9th Cir. 2004) 370 F. 3d 837.

Remedies Computation of Damages – Civil Court Statutory damages of three times the amount of actual damages, or a minimum of $4,000 for each offense. Out of pocket expenses Cease and Desist orders Computation of Damages- Administrative Possible Administrative Fines

GENERAL PRINCIPALS TO KEEP IN MIND (Legal) California Supreme Court in Koire v Metro Car Wash (1985) 40 Cal.3d 24: “The legality of [discriminatory policies and practices] cannot depend on the subjective value judgments about which types of [ ] distinctions are important or harmful.” “Some may consider such practices to be of minimal importance or to be essentially harmless. Yet, many other individuals [ ] are greatly offended by such discriminatory practices.”

Continued… We all have our own sets of beliefs and values. We must keep in mind, however, that certain distinctions that may appear to us to be reasonable or of minimal importance may be highly offensive to others. More important, the Unruh Act places all protected classifications (sex, race, religion, etc.) on equal footing. Discrimination on these bases are all equally illegal. Koire: “The express language of the Unruh Act provides a clear and objective standard by which to determine the legality of the practices at issue. The Legislature has clearly stated that business establishments must provide "equal . . . advantages . . . [and] privileges" to all customers "no matter what their [sex, race, religion, etc.]."

Conclusion Remember: Civil rights are for everyone. Whether a business establishment’s policies or practices violate the Unruh Act does not depend on the identity of the person complaining. This applies from one protected basis to another (e.g., discrimination on the basis of sex is just as illegal as discrimination on the basis of race), as well as within a protected basis (e.g., discrimination against heterosexuals is just as illegal as discrimination against homosexuals).

DFEH Brochure: Unruh Civil Right Act www.dfeh.ca.gov