California’s Unruh Civil Rights Act, Civil Code Section 51, generally provides that all persons within California are free and equal, regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation, and are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Last month, California Assemblymember Tom Ammiano introduced a bill, AB 5, to add homelessness to this list.
The bill would also add a new part to the Civil Code as the “Homeless Person’s Bill of Rights and Fairness Act”. This bill would grant to every person in California, regardless of housing status, many new and potentially far-reaching rights, including the rights to pray, rest, and urinate in public spaces (as defined).
If enacted, this bill could have substantial impacts on private businesses. For example, the bill guarantees every person in California the right to be free from “harassment” in the workplace and to rest without harassment. ”Harassment is defined to include “any behavior” committed by a property manager or business owner that is meant to ”persuade an individual to alter his or her behavior, whether or not otherwise lawful”. Under this definition, advertising would constitute harassment. The bill would also prohibit discrimination when purchasing goods and services from any business operating in California. AB 5 creates a private right of action and authorizes the court to award punitive damages, “statutory” damages of one thousand dollars per violation, and reasonable attorneys’ fees and costs to a prevailing plaintiff.
Although the bill is styled as a “bill of rights”, it is conceptually very different than the Bill of Rights included in the U.S. Constitution. Those federal rights are expressed as limitations on the government’s power (e.g., “Congress shall make no law . . .”, “the right of the people . . . shall not be infringed”, “No person shall be held to answer . . .”, etc.). In contrast, AB 5 creates positive rights that obligate the government to take action. For example, AB 5 would grant every person in the state:
The right to 24 hours a day, seven days a week access to clean and safe public restrooms;
The right of access to “hygienic provisions”, either through government-funded distribution of hygienic-kits or the availability of clean and safe public shower facilities;
The right “to access income” sufficient for survival, regardless of employment status or criminal justice background; and
The right to safe, decent, permanent, affordable housing, as soon as possible, and the right to be free from further dislocation, unless and until such time as safe, decent, permanent, affordable housing is available.
I must confess that I’m confused by many aspects of the bill. For example, if access to public restrooms is guaranteed, why is it also necessary to guaranty a right to pee in the public square? Why is micturation protected but not defecation? Does the right “to access income” include the right to steal?
For more about the Unruh Civil Rights Act, see A Question That You May Want To Add To Your Investor Suitability Questionnaire.