A plaintiff must show (1) that he or she was denied equal treatment or was otherwise discriminated against by the business establishment, (2) that a motivating reason for the discrimination was the perception of plaintiff’s protected status, (3) that the plaintiff was harmed, and (4) that the conduct of the business establishment was a substantial factor in causing that harm. Cal. Civ. Code §§ 51, 51.5, 52.Similarly, the Gender Tax Repeal Act, enacted in 1995, specifically prohibits a business establishment from price discriminating on the basis of a person’s gender. Cal. Civ. Code § 51.6.

Gov. Gavin Newsom vetoed a bill earlier this month that would have made California the first state to ban caste-based discrimination. Senate Bill No. 403 would have expanded the definition of “ancestry” under the California Fair Employment and Housing Act (FEHA), California Education Code and the Unruh Civil Rights Act (California Civil Code Section 51) to include “lineal descent, heritage, parentage, caste, or any inherited social status” as protected sub-classes. Newsom deemed the bill unnecessary, reasoning that discrimination based on caste is already prohibited under existing protected categories in California, such as race, color, religion, ancestry and national origin that are intended to be liberally construed.The caste system is a strict social and religious hierarchy commonly associated with South Asian countries. A person is assigned at birth a place in the four-fold hierarchy and the placement gets passed down to children. Outside the system, and at the bottom of the hierarchy, are the Dalits, or “untouchables.” Dalits have been historically ostracized and discriminated against at the workplace, in housing and other public places.Anti-caste discrimination laws already exist in several countries, including India, Nepal and Australia. Despite Newsom’s veto, there is a growing movement of anti-caste activism in the U.S. tha

Unsurprisingly, California is yet again changing its already very employee friendly employment laws. Currently, California leads the nation with its employee friendly laws, though states like Illinois are quickly catching up. The California Legislature’s latest move is a first for any US state by banning “caste” discrimination in the workplace under its civil rights and employment discrimination laws. Seattle passed a similar law in February.On Tuesday, September 5, 2023, SB 403 passed both houses of California’s Legislature and is now on its way to Governor Newsom’s desk and is expected to be signed into law in the near future. SB 403 amends California’s Unruh Civil Rights Act (“Act”) (Cal. Civil Code § 51 et seq.) which prohibits, among other things, employment discrimination on the basis of “ancestry.” Specifically, SB 403 amends the Act by adding “caste” into the definition of “ancestry,” among other changes.Caste discrimination is a type of discrimination that targets an individual’s place of birth and upbringing, societal status, class and ancestry, among other things. The legislature took this action in response to a rise in lawsuits alleging caste discrimination against individuals of South Asian and Indian descent. This type of discrimination is apparently prevalent in California’s South Asian and Indian communities, particularly in California’s tech industry.Once SB 403 is signed into law, employers must ensure that an individual’s ancestry, including “caste,” isn’t considered in making any employment decisions.Employers should review their EEO and anti-discrimination polices to ensure they are in line with California’s civil rights and employment discrimination laws, and updat

p that Threatened Suit Targets Other Companies, ABA J. (Mar. 30, 2022, 8:39 AM), https://www.abajournal.com/news/article/coca-cola-never-adopted-diversity-plan-for-law-firms-group-that-threatened-suit-targets-other-companies.[17] See, e.g., City of Richmond v. Croson, 488 U.S. 469 (1989) (invalidating Richmond’s Minority Business Utilization Plan, which required prime contractors to subcontract 30 percent of city-awarded construction contracts to minority business enterprises, under 42 U.S.C. § 1983).[18] See examples above; McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286–87 (1976) (holding that Section 1981 applies to “racial discrimination . . . against white persons”).[19] Perlowski v. Elson T. Killam Assocs., Inc., 384 N.J. Super. 467, 478 (Law. Div. 2005) (holding that N.J.S.A. 10:5–12(l) allows contractor, in this case a law firm, to sue a company for discrimination on the bases articulated in New Jersey’s Law Against Discrimination, which include race and gender).[20] Cal. Civ. Code § 51(b).[21] Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150, (App. Div. 2001) (holding that New Jersey’s Law Against Discrimination applies to discrimination against white persons on the basis of race); Correll v. Amazon.com, Inc., No. 21-1833, 2022 WL 5264496, at *5 (S.D. Cal. Oct. 6, 2022) (alleging that Amazon’s policies to “promote, encourage, and incentivize minority certified sellers” violate the Unruh Civil Rights Act).[22] Alexis Bateman, Ashley Barrington, Katie Date, Why You Need a Supplier-Diversity Program, HARV. BUS. REV. (Aug. 17, 2020) https://hbr.org/2020/08/why-you-need-a-supplier-diversity-program.[23] Id.[24] 539 U.S. 244 (2003).[25] Id. at 270.[26] Id. at 276 n. 23 (“[W]ith respect to § 1981, we have explained that the provision was ‘meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race’ [and] . . . a contract for educational services is a ‘contract’ for purposes of § 1981.”).[View

The California Unruh Act (specifically, California Civil Code § 51) prohibits “all business establishments of every kind whatsoever” from discriminating based on citizenship or immigration status, among other things. That protection applies to all persons within the jurisdiction of California. At the federal level, (simply put,) the federal civil rights statute (specifically, 42 U.S.C. § 1981), prohibits alienage discrimination.As early as 2017, we began to see citizenship discrimination class actions filed against creditors. For example, see Perez v. Wells Fargo & Co., 2017 U.S. Dist. LEXIS 122722 (N.D. Cal. Aug. 3, 2017). A few years later, these cases evolved to be about non-credit products, such as failing to open a deposit account due to the applicants’ citizenship. For example, see Chattopadhyay v. BBVA Compass Bancshares, Inc., 2019 U.S. Dist. LEXIS 241400 (N.D. Cal. Nov. 25, 2019).On May 26, 2023, the Eastern District of California approved a settlement, settling another class action involving non-credit products. In this case, the plaintiffs

for the granting, withholding, extending, renewing of credit, or in the fixing of interest rates, terms or conditions of any form of credit on the basis of citizenship or immigration status, as well as other specified protected characteristics.The law defines the term “citizenship or immigration status” as “the citizenship of any person or the immigration status of any person who is not a citizen of the United States.” The text goes on to clarify that, “[n]othing in this article shall preclude verification of citizenship or immigration status where required by law, nor shall an adverse action based on verification of citizenship or immigration status be prohibited where such adverse action is required by law.”New York is not the first state to expand its civil rights laws to include these characteristics. In March 2020, Washington Governor Jay Inslee signed legislation prohibiting discrimination based on citizenship or immigration status. Likewise, California’s Unruh Civil Rights Act, Cal. Civ. Code § 51, protects “[a]ll persons within the jurisdiction of this state” from discrimination based on “citizenship” or “immigration status.” Since going into effect, California has seen a rise in litigation alleging discrimination based on immigration status in such areas as student loan refinancing and credit card approvals. The enactment of New York’s amendments to its fair lending law raises the possibility that similar litigation could occur in New York.

The Unruh Act provides that “[a]ll persons within the jurisdiction of this state . . . no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51. Under the Unruh Act, there are two ways to demonstrate a violation: (1) by proving intentional discrimination, or (2) by proving a violation of Title III of the ADA. Title III of the ADA, of course, applies to places of public accommodation, which are explicitly defined by an exhaustive list of twelve categories of entities—none of which are websites. See 42 U.S.C. § 12181(7)(A–L).For years, plaintiffs with disabilities such as significant vision impairment have brought lawsuits in California against businesses, including online-only businesses, alleging that a website which is not compliant with an accessibility standard (such as the Web Contact Accessibility Guidelines (WCAG) Level 2.1, AA) violates Title III of the ADA and therefore also violates the Unruh Act.

The Act provides that "Sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status” includes a perception that the person has any particular characteristic or characteristics within the listed categories. Cal. Civ. Code § 51(e)(6). As a prohibition on invidious discrimination, the Act makes sense because it relies on the perception of listed characteristics.

will, among other things, require its listed companies, subject to certain exceptions, to:have at least one director who self-identifies as a female, andhave at least one director who self-identifies as Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, two or more races or ethnicities, or as LGBTQ+;orexplain why the company does not have at least two directors on its board who self-identify in the foregoing categories.California's landmark Unruh Civil Rights Act 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, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."Cal. Civ. Code § 51(b). The question, of course, is whether an obligation to include particular persons based on sex, race, ethnicity and sexual orientation denies individuals not identified by the proposed rule "full and equal" advantages.

However well-intentioned the proponents of these clauses may be, the question arises whether they run afoul of state laws forbidding discrimination in private sector.California's Unruh Civil Rights Act, for example, 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, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."Cal. Civ. Code § 51(b). The question, of course, is whether an obligation to include particular persons based on sex, race, color etc. runs afoul of "full and equal" advantages.