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The Unruh Civil Rights Act (“Unruh Act”) stands as a bulwark protecting each person’s inherent right to “full and equal” access to “all business establishments.” The Unruh Act, like the common law principles upon which it was partially based, imposes a compulsory duty upon business establishments (including apartment complexes) to serve all persons without arbitrary discrimination. The Unruh Act thus serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices.

The Unruh Act provides in pertinent portion at Cal. Civ. Code §51:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments or every kind whatsoever.” Although not specifically enumerated in Cal. Civ. Code §51, the Unruh Act also protects from discrimination on the basis of age and familial status. Cal. Civ. Code §51.2(a) (age); Marina Point, Ltd. v. Wolfson, 640 P.2d 115, 124 (Cal. 1982) (familial status).

The Unruh Act makes it unlawful for a business establishment to deny, discriminate, or make a distinction contrary to the Unruh Civil Rights Act. The law is rather straightforward: if a business opens its doors to the public, then it cannot unlawfully discriminate against its potential customers. Thus an apartment complex which forbids children from playing outside denies families with children the full and equal advantages, facilities, or privileges of living in that apartment complex in violation of the Unruh Civil Rights Act.

Of note, Cal. Civil Code §52 does not focus on the reason for the prohibited behavior. Rather, it simply bans the denial, aiding or inciting a denial, or making of any discrimination or distinction contrary to the Unruh Civil Rights Act. The key word–“contrary” means that Civil Code §52 is violated if the defendant engaged in “willful, affirmative misconduct” that is contrary to a person’s rights to the full and complete access to the business. Consequently, the California Supreme Court has declared that only intentional discrimination–in contradistinction from discriminatory effect discrimination–is actionable under the Unruh Act:

“[T]he [Unruh] Act was passed in 1959 and its predecessor in 1897, long before the disparate impact theory was recognized by the federal courts. On the contrary, the language of the Act suggests that intentional acts of discrimination, not disparate impact, was the object of the legislation.”

The California Supreme Court continued:

“Section 52 states: ‘Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction, or restriction on account of sex, color, race . . . contrary to the provisions of section 51 . . . , is liable for each and every such offense . . . .’”

It concluded:

“In summary, we hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims.”

Thus “intentional discrimination” in the context of the Unruh Act means: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, . . .”

At the end of the day, if your landlord is forbidding your children to play outside at your apartment complex because of the fact that they are children, then your landlord is likely violating the Unruh Act. Renters have rights. The Unruh Act contains some of those rights. If you’d like to discuss your rights as a renter, then give us a call, whether you are in San Diego, Los Angeles, Sacramento, or anywhere in the State of California, we are here to help.

Post Author: Stuart E. Fagan

Fair housing litigator with over 25 years' experience accepting cases in California.