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.
The mission of the Department of Fair Employment and Housing is to
protect Californians from employment, housing and public
accommodations discrimination, and hate violence.
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.
"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."
(1)Business Establishment/Place of Public Accommodation.
(2)Protected Basis/Protected Class.(3)Intentional discrimination of a
person in that Protected Class.(4)Protected person was harmed.
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
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.
Sex Race Color Religion Ancestry national origin Disability medical condition marital status sexual orientation
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.”
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.
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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.
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”).
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.
“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.
“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.
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.
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 Out of pocket expenses Possible Administrative Fines Cease and Desist orders
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.”
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.]."
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).
State of CaliforniaDEPARTMENT OF
FAIR EMPLOYMENT & HOUSING
Unruh Civil Rights Act
Complaints must be filed within one yearfrom the last act of discrimination. TheDFEH will conduct an impartial investigation.
The Department is not an advocate for eitherthe person complaining or the personcomplained against. The Departmentrepresents the state. The DFEH will, ifpossible, try to assist both parties to resolvethe complaint. If a voluntary settlementcannot be reached, and there is sufficientevidence to establish a violation of the law,the Department may issue an accusationand litigate the case before the FairEmployment and Housing Commission or incivil court. This law provides for a variety ofremedies that may include the following:
Out-of-pocket expenses.Cease and desist orders.Damages for emotional distress.Statutory damages of three times theamount of actual damages, or a minimumof $4,000 for each offense
Protections Under the Law Against SexDiscrimination
The Unruh Civil Rights Act (Civ. Code, § 51),originally enacted in 1959, was designed to protectthe rights of Californians from arbitrarydiscrimination and to guarantee their rights to fulland equal access to all public accommodationsregardless of sex.
Discrimination by business establishments on thebasis of sex is against the law. It is unlawful for anybusiness that is open to the general public todiscriminate against a patron based on any of thefollowing classifications: sex, race, color, religion,ancestry, national origin, disability, medicalcondition, marital status, or sexual orientation. TheUnruh Act protection is not limited to theseclassifications. It is an Unruh Act violation for abusiness to offer special treatment, whetherpreferential or detrimental, to one class of patronsregardless of the business' motives for doing so.
All persons within the jurisdiction of thisstate are free and equal, and no matterwhat their sex, race, color, religion,ancestry, national origin, disability,medical condition, marital status, orsexual orientation are entitled to the fulland equal accommodations, advantages,facilities, privileges, or services in allbusiness establishments of every kindwhatsoever.
Businesses that are Governed by theUnruh Civil Rights Act
The list to the right includes examples of businessesthat are covered by the Unruh Act. This list isnon-exhaustive, and may include any place of publicaccommodation regardless of whether the entity is atraditional business or non-profit entity.
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 tothe public).Public Agencies.Housing Accommodations.
Examples of Sex-Based DiscriminationUnder the Unruh Violations
The following are examples of potential violationsof the Unruh Act. The list is not meant to beexhaustive, and there is other conduct that mayviolate the Act.
Providing free admission, discounts, orpromotional gifts to only one sex.Charging men and women different prices forcomparable services, such as clothingalterations, haircuts, dry cleaning, or drinks at arestaurant or bar.
Maintaining "women only" or "men only" exerciseareas of a fitness club or gym and excluding ordeterring the opposite sex from those areas.Establishing a "women only" or "men only" businessestablishment which would otherwise be completelyopen to the public.Excluding one sex from a business premises duringcertain times.Posting signs or adopting policies for "womenrecommended" or "men preferred."Requiring members of one sex to submit tosearches to gain admittance to a business
Promoting a business with "ladies night"discounts on admission and services.Denying access to a business, such as anightclub to a particular sex, or givingpreference to one sex over the other.
establishment while providing admittance tomembers of the other sex without the samelevel or degree of search.
Filing a Complaint
The Department of Fair Employment andHousing (DFEH or Department) is charged withthe task of upholding the Unruh Act, andensuring that its laws and principles are notviolated. If you believe you are a victim ofunlawful discrimination, do not hesitate to callthe DFEH and file a complaint following thesesteps:
Contact the DFEH by calling the tollfree number at (800) 884-1684 toschedule an appointment."Be prepared to present specificfacts about the alleged harassmentof discrimination."Provide any copies you may haveof documents that support thecharges in the complaint.Keep records and documents aboutthe complaint, such as receipts,stubs, bills, applications, flyers,witness contact information, andother materials.
For more information, contact the DFEHToll Free (800) 884-1684
Sacramento area and out-of-state (916) 227-0551 Videophone for the Deaf (916) 226-5285
E-mail [email protected] site www.dfeh.ca.gov
Facebookhttp://www.facebook.com/#!/pages/Department-of-F
air-Employment-and-Housing/183801915445YouTube http://www.youtube.com/califdfeh
Twitter http://twitter.com/DFEH
In accordance with the California Government Code andAmericans with Disabilities Act requirements, this publicationcan be made available in Braille, large print, computer disk, ortape cassette as a disability-related reasonableaccommodation for an individual with a disability. To discusshow to receive a copy of this publication in an alternativeformat, please contact the DFEH at the telephone numbersand links above.
References
1. California Civil Code section 51.2. Rotary Club of Duarte v. Board of Directors (1987)178 Cal.App.3d 1035. A non-profit club was abusiness establishment under the Unruh Act becauseit offered its members substantial "commercialadvantages and business benefits." Membership inthese kinds of organizations is a privilege oradvantage under the Unruh Act. Thus, termination ofmembership based on sex is prohibited.3. Warfield v. Peninsula Golf & Country Club (1995)10 Cal.4th 594. By offering the public access to itsfacilities, the County Club became a businessestablishment under the Unruh Act and could notexclude women.
4. Ibister v. Boys' Club of Santa Cruz (1985) 40 Cal.3d72. A non-profit activities center for boys was a place ofpublic accommodation, and excluding an entire class ofpatrons, such as women, was illegal.5. Angelucci v. Century Supper Club (2007) 41 Cal.4th160. It was a violation of the Unruh Act for a night club tocharge its male patrons a higher price for admission.The patrons need not affirmatively requestnondiscriminatory treatment, but rather, are entitled to it.The Unruh Act imposes a compulsory duty uponbusiness establishments to serve all persons withoutarbitrary discrimination.6. Koire v. Metro Car Wash (1985) 40 Cal.3d 24. TheUnruh Act broadly condemns any businessestablishment's policy of gender-based price discounts.
