California Legislature Passes Bill Affirming Intersectional Analysis of Discrimination Claims | By: Cate A. Veeneman
Governor Newsom recently signed into law Senate Bill 1137, a bill intended to revise the Unruh Civil Rights Act and Fair Employment and Housing Act to clarify that, in addition to protecting against discrimination based on one identified protected characteristic, both laws also prohibit discrimination based on any combination of protected characteristics. The intended purpose of SB 1137 is to affirm existing caselaw in recognizing the concept of intersectionality.
The Unruh Civil Rights Act and the Fair Employment and Housing Act are both touchstone laws in California preventing discrimination in businesses, public accommodations, education, and the workplace. The Unruh Civil Rights Act prohibits discrimination based on age, ancestry, color, disability, national origin, race, religion, sex, and sexual orientation. The Fair Employment and Housing Act, in turn, prohibits discrimination based on any one of a number of protected classes, including race, age, religion, sexual orientation, gender identity, and disability, to name a few. While in practice plaintiffs have alleged discrimination based on multiple protected characteristics, situations in which multiple characteristics are at issue were never explicitly addressed in either law. SB 1137 aims to change that by revising the definition of each law to “include any combination of those characteristics, as specified.”
According to the Legislature, the driving reason for SB 1137 is to “recognize the concept of intersectionality in California’s civil rights laws.” As the bill explains, intersectionality “is an analytical framework that sets forth that different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm.” SB 1137 notes instances in the past where defendants facing discrimination claims based on multiple protected characteristics have attempted to avoid liability by separating the two characteristics from each other in order to argue that each characteristic on its own does not support a discrimination claim. In particular, SB 1137 affirms Lam v. University of Hawai’i, 30 F.3d 1551 (9th Cir. 1994), in which the Ninth Circuit noted that, when a plaintiff brings a discrimination claim based on more than one characteristic, a court must determine whether the discrimination occurred on the basis of that combination of protected characteristics, not just whether the discrimination occurred against members of each protected class.
As SB 1137 appears to primarily affirm caselaw that has been in place for several decades, it likely will not significantly change the landscape of discrimination claims in California. Rather, SB 1137 serves as a reminder that defendants cannot and should not expect to defeat discrimination claims based on multiple protected characteristics by parsing out each characteristic and claiming that no discrimination occurs in any of the identified categories.
The amendments in SB 1137 are set to take effect January 1, 2025.
