Discrimination In California Business Establishments: The Unruh Act

by CMCP - California Minority Counsel Program
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While you’d be hard pressed to find a California lawyer who doesn’t know that discrimination against business patron is unlawful, many are not familiar with the California law barring such discrimination – the Unruh Act.[i]  The standards, damages and procedures of Unruh Act cases differ from those of the Fair Employment and Housing Act in significant ways.

Banks, restaurants, hotels, nonprofit and religious organizations are among the entities that may be the subject of a lawsuit under the Unruh Act.  The Unruh Act prohibits discrimination on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation in all business establishments (referred to in this article interchangeably as “business”) of every kind whatsoever.[ii]  The classes protected by the Unruh Act are illustrative, not exhaustive, as the Unruh Act is intended to protect all persons from arbitrary discrimination.[iii]  Under section (f) of the Unruh Act, a violation under the Americans with Disabilities Act (“ADA”) is also a violation of the Unruh Act.[iv]   

Essential Elements

With the exception of claims that are also violations of the ADA, intentional discrimination is required for violations of the Unruh Act.[v]  A plaintiff must prove (i) he or she was denied full and equal privileges to, or otherwise discriminated against by, a business, (ii) a motivating reason for the denial or discrimination was the business’ perception of plaintiff’s protected status, (iii) plaintiff was harmed, and (iv) the business’ conduct was a substantial factor in causing the harm.[vi]

“Business Establishment” Defined Broadly

California Supreme Court decisions interpreting the Unruh Act have emphasized that “business establishments” must be interpreted “in the broadest sense reasonably possible.” [vii] The Unruh Act applies not only to any type of for-profit commercial enterprise but also to non-profit entities that serve the business or economic interests of its owners or members.[viii]  However, a charitable social organization whose formation and activities are unrelated to economic or business interests will not be considered a business for purposes of the Unruh Act.[ix]

Unruh Act’s Varied Applicability

Many lawsuits brought under the Unruh Act involve allegations that a business establishment’s premises discriminate against disabled customers and/or are not in compliance with the ADA.[x]  Given the broad interpretation of “business establishment” under the Unruh Act, membership decisions in social organizations have also been challenged under the Unruh Act.[xi]  The Unruh Act has also been invoked against an airline whose personnel engaged in alleged national-origin discrimination[xii] and a retailer whose website was purportedly inaccessible to blind customers.[xiii]  Price discounts based on sex have been struck down by the Unruh Act; however, discounts based on age (students and the elderly) have been upheld because they are supported by public policy.[xiv]  The Unruh Act does not apply to claims for employment discrimination.[xv]   

Remedies

An Unruh Act plaintiff can recover (i) special and general damages, (ii) an amount no less than $4,000 and no more than three times the special and general damages up to a maximum of three times the special and general damages, but in no case less than $4,000, and (iii) attorney’s fees for each violation of the Act.  Injunctive relief is also available under Civ. Code § 52(c).    

Possible Defenses to an Unruh Act Claim         

Lack of Standing          

The Unruh Act was intended to provide recourse for individuals actually denied full and equal treatment by a business.[xvi]  In 2008, the California Court of Appeal held that to have standing to sue for discriminatory practices under the Unruh Act, a plaintiff must tender the purchase price for a business’ services or products.[xvii]  Thus, for a plaintiff to have standing, he or she must have a special interest that is concrete and actual rather than conjectural or hypothetical.[xviii]

Statute of Limitations        

Claims for denial of full and equal accommodations under the Unruh Act must be brought within two years of the alleged discrimination.[xix]  There is no requirement that a plaintiff exhaust administrative remedies.

Reasonable Regulations Governing Customer Conduct

Customer or patron misconduct is not protected by the Unruh Act.  Business establishments have the right to adopt reasonable restrictions on its customers when those restrictions are rationally related to the business being conducted on the facilities.[xx]  Similarly, a business may insist that customers who damage property, injure others, or otherwise disrupt business leave the premises.[xxi]

Limited Jurisdiction

Depending on the facts of the particular case, a defendant may argue that a verdict of $25,000 is “virtually unobtainable” and request a reclassification hearing to transfer the case from unlimited to limited jurisdiction.[xxii]  

No Construction Required   

The Unruh Act does not require that a business construct, alter, or repair the premises beyond that construction that is otherwise required by other provisions of law.[xxiii]         



[i] Cal. Civ. Code § 51

[ii] Cal. Civ. Code § 51(b).

[iii] Vaughn v. Hugo Neu Proler Int’l., 223 Cal. App. 3d 1612, 1617 (1990); O’Connor v. Village Green Owners Assn., 33 Cal. 3d 790, 795 (1983). 

[iv] Cal. Civ. Code Sec. 51(f).

[v] Munson v. Del Taco, Inc., 46 Cal. 4th 661, 666 (2009)

[vi] Judicial Council of California Civil Jury Instructions (CACI) No. 3060

[vii] Curran v. Mount Diablo Council of the Boys Scouts of Am., 17 Cal. 4th 670, 696 (1998). 

[viii] Id.; see also O’Connor v. Village Green Owners Assn., supra, (condominium association), Rotary Club of Duarte v. Board of Directors, 178 Cal. App. 3d 1035 (1986) (nonprofit civic association of business and professional men where a primary purpose of the organization was to promote the business interest of its members); Stevens v. Optimum Health Inst. (S.D. Cal 2011) US Dist LEXIS 95372 (religious organization); Nat’l Fedn. of the Blind v. Target Corp., (N.D. Cal. 2007) 452 F. Supp. 2d 946 (retailer’s website a business establishment under Unruh Act).

[ix] Curran at 697-698. 

[x] See, e.g., Hankins v. El Torito Restaurants, Inc., 63 Cal. App. 4th 510 (1998), Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831 (2011); http://www.bloomberg.com/article/2013-06-17/a68VGw6XOovc.html

[xi] Curran, supra; Randall v. Orange County Council, Boy Scouts of Am,. 17 Cal. 4th 736 (1998).

[xii] Abou-Jaoude v. British Airways, Inc., 228 Cal. App. 3d 1137 (1991).

[xiii] Nat’l Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2007)

[xiv] Koire v. Metro Car Wash, 40 Cal. 3d 24, 35-38 (1985).

[xv] Rojo v. Kliger, 52 Cal. 3d 65 (1990); Bates v. UPS, 511 F. 3d 974 (2007). 

[xvi] Midpeninsula Citizens for Fair Housing v. Westwood Investors, 221 Cal. App. 3d 1377, 1383 (1990) (emphasis added).

[xvii] Surrey v. TrueBeginnings, LLC, 168 Cal. App. 4th 414, 416 (2008). 

[xviii] Id. at 417.

[xix] Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 754-760 (2002); Mitchell v. Sung, 816 F. Supp. 597, 602 (N.D. Cal 1993); Cal. Code Civ. Proc. § 335.1. 

[xx] Wynn v. Monterey Club, 111 Cal. App. 3d 789 (1980).

[xxi] In re Cox, 3 Cal. 3d 205, 217 (1970).   

[xxii] Walker v. Superior Court, 53 Cal. 3d 257, 269 (1991).

[xxiii] Cal. Civ. Code § 51(d).

 

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