California's Unruh Civil Rights Act, Code of Civil Procedure § 52(a), provides for an award of damages of no less than $4,000 for each and every offense against a business that "denies, aids or incites a denial, or makes any discrimination" by providing less than full and equal services based on "sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation."1 For two decades, litigants have debated over the breadth of standing under the Act. Defendants have argued that only those who request equal treatment or accommodation can sue. Plaintiffs have argued that it is enough that the plaintiff was "deterred" from making such a demand because he or she believed that it would be futile. On May 31, 2007, the California Supreme Court staked a middle course.
In Angelucci v. Century Supper Club, the court unanimously ruled that an individual alleging that a business discriminated against him need not show that he requested, and was refused, nondiscriminatory treatment in order to bring a claim under the Unruh Civil Rights Act. Its reasoning, however, strongly suggests that it would reject so-called "deterrence" claims.
Angelucci
was a challenge to a common nightclub and restaurant promotion known as a "ladies night." Marc Angelucci,2 along with three other men, patronized the Century Supper Club on several occasions. On each visit, Angelucci and the others were charged a higher cover charge than the women patronizing the club. Specifically, Angelucci claims that on one occasion he was charge $20, while the cover for women was only $15, and that two days later he was charged $20, while women were allowed in for free.The Superior Court granted summary judgment for Century Supper Club, and the Second District Court of Appeal affirmed. In its ruling, the Second District stressed the plaintiffs' failure to affirmatively demand equal treatment from Century, holding "that there must be an affirmative assertion of the right to equal treatment." The court added that this policy would avoid individuals exploiting the law for financial gain and only allow claims in which "genuine grievances" could be remedied.
Chief Justice Ronald M. George, writing for a unanimous Supreme Court, reversed.
In its analysis, the court first looked to the ordinary meaning of the language of the Act in light of its legislative purpose. Drawing on the similarity of the Act and the federal Constitution's use of "deny" in the equal protection clause, the court rejected the view that denial was limited to a business' response to an affirmative demand for equal accommodation. Instead, the denial of rights under the Act must similarly apply to both the active and passive sufferers of discrimination.
The Court criticized two major consequences of the Second District's interpretation. First, a business would not be liable under the Act if a person was unable to affirmatively demand equal treatment at the time the discrimination occurred because the customer discovered the discrimination after the fact, or if there was no one present to receive a complaint at the time the discrimination occurred (as was the case with racially-segregated drinking fountains in the past).
Second, noting the Legislature's goal to create and preserve a nondiscriminatory business environment in California, the court stressed the necessity of reading the Act broadly to achieve this goal. Accordingly, the court concluded, the "Court of Appeal's interpretation leaves business establishments free to advertise and provide gender-based discounts and, presumably, to engage in other forms of discrimination that violate the Act, so long as these establishments agree to provide equal treatment to those customers knowledgeable and assertive enough to demand it."
Finally, the court rejected the view that numerous earlier decisions of the Court of Appeal required a plaintiff to affirmatively request equal treatment in order to bring a claim under the Act. At most, the court held, these cases stood for the proposition that a person must affirmatively request service in order to be discriminated against, not that he specifically request equal treatment. In other words, a plaintiff cannot bring a claim under the Act if he has not personally been damaged by being denied equal service. This accords with the court's earlier decision in Koire v. Metro Car Wash, 40 Cal.3d 24, 28 (1985), where it held that "a business establishment's policy of affording price discounts to female patrons purely on the basis of gender ordinarily constitutes unlawful discrimination against male patrons within the meaning of the Act." The court in Koire also concluded that arbitrary sex discrimination is "per se injurious," that both business access and patron treatment are covered by the Act, and that the plaintiff was injured when he presented himself for admission and was subsequently charged the nondiscounted price.
Although Angelucci makes it easier for at least some Unruh Act plaintiffs to sue, there is good news here for defendants on a number of fronts.
First, the decision addresses the potential for abuse of the Unruh Act, and suggests that the courts should impose limitations on recovery for multiple instances of the same allegedly-discriminatory policy claimed by a plaintiff. In order to avoid abuse of the $4,000 penalty, the court acknowledged that "equitable consideration[s]" against "unclean hands" and "constitutional constraints" against excessive fines may need to be taken into consideration for repeated unannounced visitors.
Second, Angelucci is a price discrimination case, not an access case. The court's analysis focused on the impracticalities of requiring a plaintiff who is already patronizing an establishment to make the further demand that he or she be charged the same as other patrons. The same impracticalities do not exist where the plaintiff never attempts to patronize an establishment, claiming that he knew that he would have been discriminated against.
Significantly, Angelucci offers strong support for the proposition that deterrence plaintiffs-who alleged that they never patronized the establishment or requested the service because they knew that they would not be admitted or served-cannot state a claim under the Unruh Act. The court's language stands as a strong, albeit implied, repudiation of federal court predictions that deterrence claims are cognizable under the Unruh Act. See Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (establishment's lack of handicapped parking, which deterred a disabled plaintiff from patronizing it, was a sufficient denial of rights for the plaintiff to bring a claim under the Unruh Act); Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal. 1994) (a disabled person who was deterred from going to a local movie theatre due to inadequate wheelchair accommodations could bring a claim under the Unruh Act).
While rejecting the Second District's holding in Angelucci, the Court accepts the proposition that "a plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct." When defining "actually suffer," the court looks to a previous Court of Appeal case, which held that a claim can be brought only by those who are "actually denied full and equal treatment by a business establishment." (emphasis added). In a deterrence claim, the plaintiff is not "actually denied" service, but is claiming that he knew that he would be discriminated against despite his failure to seek access. As the court in Arnold suggested, disability discrimination claims differ from non-disability discrimination claims in that objective physical barriers are more easily ascertained than the more subjective valuation of other claims that can allow for varying interpretations.3
Angelucci
cites nearly a dozen examples of discriminatory practices, each of which required the plaintiff to have physically patronized the discriminatory service and "stand at most for the proposition that persons who were not patrons of a business establishment or who did not present themselves for service or access as a patron and tender the price of admission did not adequately allege injury." Accordingly, the court holds that "injury occurs when the discriminatory policy is applied to the plaintiff-that is, at the time the plaintiff patronizes the business establishment, tendering the nondiscounted price of admission." It is difficult-perhaps impossible-to reconcile deterrence claims with this rule.Footnotes
1. This list has been held to be illustrative rather than exhaustive. See Koire v. Metro Car Wash, 40 Cal.3d 24, 28 (1985); Marina Point, Ltd. v. Wolfson 30 Cal.3d 721, 725 (1982); In re Cox, 3 Cal.3d 205, 216 (1970); Rolon v. Kulwitzky 153 Cal.App.3d 289, 292 (1984). However, discrimination regarding age (e.g. different admission prices for children and the elderly) has been held to be consistent with public policy. See Koire 40 Cal.3d at 37. Similarly, the Koire opinion acknowledges that some public policies warrant differential treatment between the sexes in limited circumstances.
2. Angelucci has served as the President of the Los Angeles chapter of the National Coalition of Free Men (NCFM). The NCFM is a non-profit, civil rights organization that "looks at the ways sex discrimination affects men and boys."
3. Arnold suggests that a plaintiff may not be able to bring a non-disability based deterrence claim. While plaintiffs argue that the rationale of Botosan and Arnold appears to be general enough to be applicable to all Unruh Act claims, the Arnold court makes an important distinction in regards to disability discrimination. Disability cases are unlike other discrimination cases "where the deterring conduct is largely subjective and is subject to differing interpretations, [in disability cases] the existence of, for instance, an architectural disability access barrier is an objectively ascertainable fact and therefore is even more likely to have a deterring effect." Arnold, 866 F. Supp. at 438. Unlike the objectively obvious discrimination involved in disability cases, discrimination on other grounds, such as sex or marital status, tend to be less observable and are prone to a more subjective valuation. An argument can be made that such discrimination does not provide the same per se deterrence that, for instance, the lack of a wheelchair ramp would provide.
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