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SB-873 Gender: discrimination: pricing.(2019-2020)



Current Version: 03/16/20 - Amended Senate

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SB873:v98#DOCUMENT

Amended  IN  Senate  March 16, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 873

Introduced by Senator Jackson
(Coauthors: Senators Durazo, Lena Gonzalez, Hueso, Leyva, Skinner, and Wiener)
(Coauthors: Assembly Members Bauer-Kahan, Gonzalez, Levine, Limón, Nazarian, Luz Rivas, and Wicks)

January 21, 2020

An act to amend Section Sections 51.6 of and 52 of, and to add Section 51.6.5 to, the Civil Code, and to amend Section 12930 of the Government Code, relating to civil rights.


LEGISLATIVE COUNSEL'S DIGEST


SB 873, as amended, Jackson. Gender: discrimination: pricing.
Existing law, the Gender Tax Repeal Act of 1995, 1995 (the act), prohibits a business establishment from discriminating against a person because of the person’s gender with respect to the price charged for services of similar or like kind and specifies that this prohibition does not apply to price differences based specifically upon the amount of time, difficulty, or cost of providing the services.
The California Fair Employment and Housing Act protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of various personal characteristics. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging violations of specified civil rights.
This bill would also prohibit a business establishment from discriminating against a person because of a person’s gender with respect to the price charged for any 2 consumer products from the same manufacturer that are substantially similar if those products are priced differently based on the gender of the individuals for whose use the products are intended or marketed, as specified. The bill would make the department responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging violations of these provisions.

The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 51.6 of the Civil Code is amended to read:

51.6.
 (a) This section shall be known, and may be cited, as the Consumer Services Gender Tax Repeal Act of 1995.
(b) (1)No business establishment of any kind whatsoever may discriminate, with respect to the price charged for services of similar or like kind, against a person because of the person’s gender. Nothing in this paragraph prohibits price differences based specifically on the amount of time, difficulty, or cost of providing the services.

(2)No business establishment of any kind whatsoever may discriminate, with respect to the price charged for any two consumer products from the same manufacturer that are substantially similar, if those products are priced differently based on the gender of the individuals for whose use the products are intended or marketed. For purposes of this paragraph, all of the following apply:

(A)Two products are substantially similar if there are no substantial differences in the materials used in the products, the function of the products, and the functional design or features of the products.

(B)A difference in color or packaging among consumer products shall not, by itself, be construed as a substantial difference.

(C)Nothing in this paragraph prohibits price differences based on bona fide factors other than gender, including, but not limited to, when a retail establishment passes through a price to the consumer that is set by a manufacturer, distributor, or other entity that is beyond the retailer’s control.

(c) Nothing in subdivision (b) prohibits price differences based specifically on the amount of time, difficulty, or cost of providing the services.

(c)

(d) Except as provided in subdivision (f), the remedies for a violation of this section are the remedies provided in subdivision (a) of Section 52. However, an action under this section is independent of any other remedy or procedure that may be available to an aggrieved party.

(d)

(e) This act does not alter or affect the provisions of the Health and Safety Code, the Insurance Code, or other laws that govern health care service plan or insurer underwriting or rating practices.

(e)

(f) (1) The following business establishments shall clearly and conspicuously disclose to the customer in writing the pricing for each standard service provided:
(A) Tailors or businesses providing aftermarket clothing alterations.
(B) Barbers or hair salons.
(C) Dry cleaners and laundries providing services to individuals.
(2) The price list shall be posted in an area conspicuous to customers. Posted price lists shall be in no less than 14-point boldface type and clearly and completely display pricing for every standard service offered by the business under paragraph (1).
(3) The business establishment shall provide the customer with a complete written price list upon request.
(4) The business establishment shall display in a conspicuous place at least one clearly visible sign, printed in no less than 24-point boldface type, which reads: “CALIFORNIA LAW PROHIBITS ANY BUSINESS ESTABLISHMENT FROM DISCRIMINATING, WITH RESPECT TO THE PRICE CHARGED FOR SERVICES OF SIMILAR OR LIKE KIND, AGAINST A PERSON BECAUSE OF THE PERSON’S GENDER. A COMPLETE PRICE LIST IS AVAILABLE UPON REQUEST.”
(5) A business establishment that fails to correct a violation of this subdivision within 30 days of receiving written notice of the violation is liable for a civil penalty of one thousand dollars ($1,000).
(6) For the purposes of this subdivision, “standard service” means the 15 most frequently requested services provided by the business.

(f)

(g) (1) Commencing January 1, 2021, a city, county, or city and county that issues business licenses shall provide a business, at the time the business is issued the license or when the license is renewed, written notice of these provisions in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. In order to comply with this paragraph, a city, county, or city and county may provide the business with the notice created by the Department of Consumer Affairs under pursuant to subdivision (b) of Section 55.63.
(2) A city, county, or city and county that issues business licenses may increase the fee for that license in an amount not to exceed the reasonable costs of providing the written notice above.

(g)

(h) The Legislature finds and declares that this section addresses a matter of statewide concern rather than a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this section applies to all cities, including charter cities.

SEC. 2.

 Section 51.6.5 is added to the Civil Code, to read:

51.6.5.
 (a) This section shall be known, and may be cited, as the Consumer Products Gender Tax Repeal Act of 2020.
(b) No business establishment of any kind whatsoever, including, but not limited to, retailers, distributors, or manufacturers, may discriminate against a person, with respect to the price charged for any two consumer products from the same manufacturer that are substantially similar, if those products are priced differently based on the gender of the individuals for whose use the products are intended or marketed. For purposes of this subdivision, all of the following apply:
(1) Two products are substantially similar if there are no material differences in the products’ content or function.
(2) A difference in color or packaging among consumer products shall not, by itself, be construed as a material difference in content or function.
(3) Nothing in this section prohibits price differences based on bona fide cost factors other than gender.
(4) Nothing in this section prohibits a retailer from passing through a price to the consumer that is set by a manufacturer, distributor, or other entity that is beyond the retailer’s control.
(c) The remedies for a violation of this section are the remedies provided in subdivision (a) of Section 52.

SEC. 3.

 Section 52 of the Civil Code is amended to read:

52.
 (a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, or 51.6.5 is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6. 51.6, or 51.6.5.
(b) Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:
(1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages.
(2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney. An action for that penalty brought pursuant to Section 51.7 shall be commenced within three years of the alleged practice.
(3) Attorney’s fees as may be determined by the court.
(c) Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following:
(1) The signature of the officer, or, in his or her the officer’s absence, the individual acting on behalf of the officer, or the signature of the person aggrieved.
(2) The facts pertaining to the conduct.
(3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.
(d) Whenever an action has been commenced in any court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States on account of race, color, religion, sex, national origin, or disability, the Attorney General or any district attorney or city attorney for or in the name of the people of the State of California may intervene in the action upon timely application if the Attorney General or any district attorney or city attorney certifies that the case is of general public importance. In that action, the people of the State of California shall be entitled to the same relief as if it had instituted the action.
(e) Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.
(f) Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Department of Fair Employment and Housing pursuant to Section 12948 of the Government Code.
(g) This section does not require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor does this section augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws.
(h) For the purposes of this section, “actual damages” means special and general damages. This subdivision is declaratory of existing law.
(i) Subdivisions (b) to (f), inclusive, shall not be waived by contract except as provided in Section 51.7.

SEC. 4.

 Section 12930 of the Government Code is amended to read:

12930.
 The department shall have the following functions, duties, and powers:
(a) To establish and maintain a principal office and any other offices within the state as are necessary to carry out the purposes of this part.
(b) To meet and function at any place within the state.
(c) To appoint attorneys, investigators, conciliators, mediators, and other employees as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
(d) To obtain upon request and utilize the services of all governmental departments and agencies and, in addition, with respect to housing discrimination, of conciliation councils.
(e) To adopt, promulgate, amend, and rescind suitable procedural rules and regulations to carry out the investigation, prosecution, and dispute resolution functions and duties of the department pursuant to this part.
(f) (1) To receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to Chapter 6 (commencing with Section 12940).
(2) To receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation of Section 51, 51.5, 51.6, 51.6.5, 51.7, 51.9, 54, 54.1, or 54.2 of the Civil Code. The remedies and procedures of this part shall be independent of any other remedy or procedure that might apply.
(3) To receive, investigate, conciliate, mediate, and prosecute complaints alleging, and to bring civil actions pursuant to Section 52.5 of the Civil Code for, a violation of Section 236.1 of the Penal Code. Damages awarded in any action brought by the department pursuant to Section 52.5 of the Civil Code shall be awarded to the person harmed by the violation of Section 236.1 of the Penal Code. Costs and attorney’s fees awarded in any action brought by the department pursuant to Section 52.5 of the Civil Code shall be awarded to the department. The remedies and procedures of this part shall be independent of any other remedy or procedure that might apply.
(4) To receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful pursuant to Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1, except for complaints relating to educational equity brought under Chapter 2 (commencing with Section 200) of Part 1 of Division 1 of Title 1 of the Education Code and investigated pursuant to the procedures set forth in Subchapter 5.1 of Title 5 of the California Code of Regulations, and not otherwise within the jurisdiction of the department.
(A) Nothing in this part prevents the director or the director’s authorized representative, in that person’s discretion, from making, signing, and filing a complaint pursuant to Section 12960 or 12961 alleging practices made unlawful under Section 11135.
(B) Remedies available to the department in conciliating, mediating, and prosecuting complaints alleging these practices are the same as those available to the department in conciliating, mediating, and prosecuting complaints alleging violations of Article 1 (commencing with Section 12940) of Chapter 6.
(g) In connection with any matter under investigation or in question before the department pursuant to a complaint filed under Section 12960, 12961, or 12980:
(1) To issue subpoenas to require the attendance and testimony of witnesses and the production of books, records, documents, and physical materials.
(2) To administer oaths, examine witnesses under oath and take evidence, and take depositions and affidavits.
(3) To issue written interrogatories.
(4) To request the production for inspection and copying of books, records, documents, and physical materials.
(5) To petition the superior courts to compel the appearance and testimony of witnesses, the production of books, records, documents, and physical materials, and the answering of interrogatories.
(h) To bring civil actions pursuant to Section 12965 or 12981 of this code, or Title VII of the Civil Rights Act of 1964 (Public Law 88-352; 42 U.S.C. Sec. 2000 et seq.), as amended, the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. 12101, et seq.), as amended, or the federal Fair Housing Act (42 U.S.C. Sec. 3601 et seq.), and to prosecute those civil actions before state and federal trial courts.
(i) To issue those publications and those results of investigations and research as in its judgment will tend to promote goodwill and minimize or eliminate discrimination in employment on the bases enumerated in this part and discrimination in housing because of race, religious creed, color, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, familial status, disability, veteran or military status, genetic information, or sexual orientation.
(j) To investigate, approve, certify, decertify, monitor, and enforce nondiscrimination programs proposed by a contractor to be engaged in pursuant to Section 12990.
(k) To render annually to the Governor and to the Legislature a written report of its activities and of its recommendations.
(l) To conduct mediations at any time after a complaint is filed pursuant to Section 12960, 12961, or 12980. The department may end mediation at any time.
(m) The following shall apply with respect to any accusation pending before the former Fair Employment and Housing Commission on or after January 1, 2013:
(1) If an accusation issued under former Section 12965 includes a prayer either for damages for emotional injuries as a component of actual damages, or for administrative fines, or both, or if an accusation is amended for the purpose of adding a prayer either for damages for emotional injuries as a component of actual damages, or for administrative fines, or both, with the consent of the party accused of engaging in unlawful practices, the department may withdraw an accusation and bring a civil action in superior court.
(2) If an accusation was issued under former Section 12981, with the consent of the aggrieved party filing the complaint, an aggrieved person on whose behalf a complaint is filed, or the party accused of engaging in unlawful practices, the department may withdraw the accusation and bring a civil action in superior court.
(3) Where removal to court is not feasible, the department shall retain the services of the Office of Administrative Hearings to adjudicate the administrative action pursuant to Sections 11370.3 and 11502.
(n) On any Section 1094.5 Code of Civil Procedure challenge to a decision of the former Fair Employment and Housing Commission pending on or after January 1, 2013, the director or the director’s designee shall consult with the Attorney General regarding the defense of that writ petition.