Mcle Self-study Credit in Elimination of Bias: the Unruh Civil Rights Act at 60

• Publication year: 2019
• Author: By Phyllis W. Cheng

MCLE Self-Study Credit in Elimination of Bias: The Unruh Civil Rights Act at 60

By Phyllis W. Cheng

Phyllis W. Cheng is a mediator at ADR Services, Inc., and is on the neutral panels for the California Court of Appeal, Second Appellate District, and U.S. District Court, Central District of California. She prepares the Labor & Employment Case Law Alert, a free electronic alert service on new cases for Section members. She is co-editor of California Fair Housing and Public Accommodations (The Rutter Group Civil Litigation Series).

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, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.¹

The Unruh Civil Rights Act,² enacted in 1959³ and named for its author, Jesse M. Unruh,⁴ regulates equal accommodations for all types of business establishments. This year, the Unruh Act celebrates its 60th anniversary.⁵ This article discusses the historical context, current application, and future developments regarding this preeminent civil rights law.

LEGISLATIVE HISTORY

Predecessor Act

California has long barred discrimination in public accommodations. Early common law decisions created a duty to serve all customers on reasonable terms without discrimination.⁶ In 1897, the California Legislature enacted these common law doctrines into the statutory predecessor of the present Unruh Civil Rights Act.⁷ The 1897 act, codified as California Civil Code⁸ section 51, provided "[t]hat all citizens within the jurisdiction of this State shall be entitled to the full and equal accommodations, advantages, facilities, privileges of inns, restaurants, hotels, eating-houses, barber-shops, bath-houses, theaters, skating-rinks, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens."⁹

A 1905 amendment added section 52 to provide remedies for violations of section 51.¹⁰

A 1919 amendment broadened the act to encompass public conveyances.¹¹

In 1923, the California Legislature extended section 51 coverage to "places where ice cream or soft drinks of any kind are sold for consumption on the premises."¹² In addition, section 52 was amended to provide that anyone who denied customers of such rights was liable for damages.¹³ Thus, up to this time, section 51 had focused on places of public accommodations rather than any enumerated bases of discrimination.

Unruh Civil Rights Act

In 1959, the modern Unruh Civil Rights Act was enacted, substantially expanding section 51 for the first time to prohibit public accommodations on enumerated bases of discrimination.¹⁴ The impetus for the Unruh Act was the Legislature's concern that California Courts of Appeal had narrowly defined the kinds of businesses that afforded public accommodation and had improperly curtailed the scope of the public accommodations provisions.¹⁵ As a result, in enacting the Unruh Act, the Legislature modified the mandate that "All citizens . . . are entitled to the full and equal accommodations" by broadening its scope and intent so that it read thereafter: "All citizens . . . are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations . . . in all business establishments of every kind whatsoever."¹⁶

Thereafter, the Unruh Act became and continues to be a robust civil rights law. Later amendments further enlarged the state's preeminent anti-discrimination law.¹⁷ Today, the Unruh Act more broadly prohibits discrimination against "all persons within the jurisdiction of California" on the bases of "sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status."¹⁸ In addition, California case law has liberally construed the act, finding that the Unruh Act's "identification of particular bases of discrimination . . . is illustrative rather than restrictive."¹⁹ Accordingly, the California Supreme Court has held that the Unruh Act's "language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments."²⁰

Important to employment attorneys, the California Supreme Court has expressly held that employment discrimination claims are excluded from the Unruh Act's protection.²¹ The court has explained this exclusion by noting that the Unruh Act was designed to prohibit discrimination by business establishments "in the course of furnishing goods, services, or facilities" to its "clients, patrons, or customers," but does not extend to claims for employment discrimination because other California statutes are specifically tailored to provide relief for such conduct. The court pointed most notably to the Fair Employment and Practices Act (FEPA),²² which was passed by the California Legislature in the very same session as the Unruh Act.²³ Nonetheless, attorneys and their clients that are business establishments are bound by the same public accommodations rules under the Unruh Act.

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CURRENT APPLICATION24

Unruh Claim Elements

An Unruh Act plaintiff must establish the following elements:

1. That the defendant denied, aided or incited, discriminated or made a distinction that denied full and equal accommodations, advantages, facilities, privileges, or services to plaintiff;
2. That a substantial motivating reason for the defendant's conduct was the defendant's perception of the plaintiff's protected basis under the Unruh Act; or that the protected basis of a person whom the plaintiff was associated with was a substantial motivating reason for the defendant's conduct;
3. That the plaintiff was harmed; and
4. That the defendant's conduct was a substantial factor in causing the plaintiff's harm.²⁵

Intentional Discrimination

The Unruh Act requires a showing of intentional discrimination, unless the claim is also for a violation of the Americans with Disabilities Act (ADA).²⁶ This exception applies because the Unruh Act and Disabled Persons Act (DPA)²⁷ incorporate ADA standards, and thus a violation of the ADA also constitutes a violation of both the Unruh Act and the DPA.²⁸ Otherwise, a plaintiff must plead and prove a case of intentional discrimination to recover under the Unruh Act.²⁹

The Unruh Act further makes void all provisions in a written instrument relating to real property that purport to forbid or restrict conveyance, encumbrance, leasing, or mortgaging of the property to any person due to that person having characteristics within the prohibited classifications.³⁰

Standing

To establish standing for damages under the Unruh Act, parties must show that they were in fact denied equal access.³¹ Where there is no direct evidence of intentional discrimination, statistical evidence can be probative in showing that alleged discriminatory conduct has a discriminatory effect.³² In the absence of direct evidence of intentional discrimination, courts will also use the McDonnell Douglas Corp. v. Green burden-shifting test³³ for an Unruh Act claim, to determine whether there is sufficient circumstantial evidence to warrant a finding of intentional discrimination.³⁴

A plaintiff need not prove that s/he belongs to one of the classes protected by the Unruh Act (enumerated or unenumerated). Rather, a plaintiff need only prove that the defendant perceived that the plaintiff belonged to such a class, or perceived that the plaintiff associated with others who belonged to such class.³⁵

Under limited circumstances, the Unruh Act also covers categories not enumerated in the statute.³⁶ Any unenumerated claim, however, must be based on a personal characteristic similar to those listed in the statute. In addition, the court must consider whether the alleged discrimination was justified by a legitimate business reason, and the consequences of allowing the claim to proceed must be taken into account.³⁷ "In addition to the particular forms of discrimination specifically outlawed by the Unruh Act, courts have held the Act 'prohibit[s] discrimination based on several classifications which are not specifically enumerated in the statute.' These judicially recognized classifications include: unconventional dress or physical appearance, families with children, homosexuality (explicitly incorporated as "sexual orientation in 2005), and persons under 18."³⁸

Business Establishment

The issue of whether the defendant is a business establishment is for the judge to decide.³⁹ The California Supreme Court has broadly interpreted "business" under the Unruh Act to embrace "calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain." The court has interpreted "establishment" to include "not only a fixed location, such as the 'place where one is permanently fixed for residence or business,' but also a permanent 'commercial force or organization' or 'a permanent settled position, (as in life or business).'"⁴⁰

As noted above, historically business establishments under section 51 have included "inns, restaurants, hotels, eating-houses, barber-shops, bath-houses, theaters, skating-rinks, and all other places of public accommodation or amusement,"⁴¹ including non-profit organizations that have a business purpose or are a public accommodation, hospitals, public agencies, and retail establishments.⁴²

Selected Examples of Prohibited Discrimination

• Race Discrimination by Bank: A bank's refusal to allow an African-American investment advisor to accompany his clients to the bank violated the Unruh Act.⁴³
• Sexual Orientation Discrimination by Country Club: The claim of a lesbian...