California Civil Code Section 51(b) - Interpretation

Civil Code section 51, subdivision (b) provides: "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." As our Supreme Court has very recently emphasized: "The Act expresses a state and national policy against discrimination on arbitrary grounds. Its provisions were intended as an active measure that would create and preserve a nondiscriminatory environment in California business establishments by 'banishing' or 'eradicating' arbitrary, invidious discrimination by such establishments. " (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167 59 Cal.Rptr.3d 142, 158 P.3d 718.) And the Supreme Court has previously made clear that the listing of the particular bases for discrimination in Civil Code section 51 "is illustrative rather than restrictive. " (In re Cox (1970) 3 Cal.3d 205, 216.) Thus, in Cox, the high court concluded that the Act prohibited a business's arbitrary exclusion of a customer on the ground that he associated with a male with long hair and unconventional dress. (Cox, at p. 216.) Similarly, in Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 740, the court held that a blanket policy of excluding children or families with children from rental housing constituted discrimination under the Act, notwithstanding the fact that those groups were not specifically enumerated in the statute. (See also O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790 holding that a condominium development restricting residency to persons over 18 violated Act.) In Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, the Supreme Court revisited whether discrimination based upon characteristics not specifically enumerated in Civil Code section 51 was potentially proscribed under the Act. After extensive discussion (see Harris, supra, at pp. 1154-1156), the court rejected the defendants' position that only classes specifically identified in the statute were protected. The Harris court acknowledged that "beginning with Cox in 1970, the Unruh Act has been construed to apply to several classifications not expressed in the statute. " (Id. at p. 1155.) It therefore rejected the defendants' contention that the Legislature had repudiated the holdings in "Cox, Marina Point, O'Connor, and similar appellate decisions extending the Unruh Act beyond its specified categories of discrimination ... ." (Id. at p. 1156.) The Supreme Court, in Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 840, reiterated that in Harris it had "affirmed the principle articulated in its earlier decisions that the Act's enumerated categories are illustrative, rather than restrictive." It explained that Harris had established a "a three-part analytic framework for determining whether a future claim of discrimination, involving a category not enumerated in the statute or added by prior judicial construction, should be cognizable under the Act." (Ibid.) In Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, the court held, "an adverse impact claim challenges a standard that is applicable alike to all such persons based on the premise that, notwithstanding its universal applicability, its actual impact demands scrutiny. If the Legislature had intended to include adverse impact claims, it would have omitted or at least qualified" the language in section 51 of the Civil Code that expressly exempts standards that are applicable alike to persons of every sex, color, race, religion, ancestry, national origin, or blindness or other physical disability. (Harris, at pp. 1172-1173.)