Drive-By Discrimination

For more than two decades, the plaintiffs’ bar has tried to stretch the Unruh Civil Rights Act past its breaking point. It has done this by arguing that the act not only provides a monetary remedy to those who patronize a business and suffer discrimination, but that it also entails the same remedy for those who wanted to patronize a business, but were "deterred" from doing so because they would suffer discrimination. We call the latter "drive-by" discrimination. Although the federal courts predicted that the California Supreme Court would endorse drive-by discrimination, the recent decision in Angelucci v. Century Supper Club proves them wrong. In Angelucci, the court holds that liability under the Unruh Act is limited to actual patrons of a business establishment.

Unruh’s Rules

The stakes in the debate over the viability of drive-by discrimination claims are significant. California’s Unruh Civil Rights Act (C.C.P. Section 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." (This list is illustrative, but not exhaustive. See, for example, 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].) When Unruh Act claims are combined with a request for class relief, or claims under the Unfair Competition Law (Bus. & Prof. Code section 17200) or Consumer Legal Remedies Act (Civ. Code section 1750), drive-by discrimination claims can double or triple (perhaps even more) a business’s potential liability.

Decisions from the 9th Circuit and Northern District predicted that California courts would embrace deterrence-based claims and hold that drive-by discrimination was a viable theory of relief under the Unruh Act. See Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (where an 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) (holding that a disabled person who was deterred from going to a local movie theater because of inadequate wheelchair accommodations could bring a claim under the Unruh Act). But on May 31, 2007, our high court proved them wrong.

The Angelucci Case

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.

Marc Angelucci is a former president of the Los Angeles chapter of the National Coalition of Free Men. The NCFM is a nonprofit civil rights organization that "looks at the ways sex discrimination affects men and boys." Apparently seeking a test case to challenge a common nightclub and restaurant promotion known as a "ladies night," he and 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—on one occasion he was charged $20 while the cover for women was only $15, and 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 Constitution’s use of the word "deny" in the equal protection clause, the court rejected the view that denial was limited to a business’s 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, either because the customer discovered the discrimination after the fact, or because was no one present to receive a complaint at the time that the discrimination occurred (as was the case with racially segregated drinking fountains in the past).

Second, noting the legislature’s goal of creating and preserving 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, 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, its long-term impact will likely be to limit the scope of such claims and prevent the abuses associated with drive-by discrimination claims.

First, the decision 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.

While rejecting the Second District’s holding, 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.

Angeluccicites to 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 impossible to reconcile drive-by discrimination claims with this rule.

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