Hello everybody. Here’s a quick question: Is an apartment building a business establishment? Here’s the quick answer: Yes!
In 1959, California enacted the Unruh Civil Rights Act and named it after its author, Jesse Unruh. The Act’s principal objective was (and still is) to prevent many types of unreasonable discrimination by business establishments. Business establishments include apartment buildings, hotels, motels, and substantially all types of other businesses.
Presently, the specific and well known enumerated categories of proscribed discrimination include sex, race, color, creed, religion and marital status. Of course there are other categories. (The full text of the law can be found by Googling “California Civil Code Section 51 Find Law.”)
But the Unruh Civil Rights Act is not the only legislation in California that prevents business establishments, including providers of housing accommodations, from discriminating against their patrons.
The California Fair Employment and Housing Act (“FEHA,” which is codified in Government Code Section 12900, etc.) prohibits certain types of discrimination by housing providers as well as various types of discrimination by employers against employees.
The types of banned discrimination by apartment building owners and by employers cover many of the same prohibited areas, however some are different. One notable difference is the FEHA’s July 2019 prohibition of discrimination based on hairstyles. Under the new Act, employers are now prohibited from discriminating based on hairstyle, but apartment owners are not.
In other words, the FEHA expressly prohibits employers from discriminating against employees on the basis of hairstyle, but does not bar apartment owners from engaging in hairstyle discrimination.
That makes sense as employers may want their employees who interact with customers (such as bank tellers, restaurant servers and sales staff) to have a certain “groomed” look (which the new legislation rejects insofar as hair is concerned), whereas housing providers generally may not care about the physical appearance of their tenants’ heads.
But that is not to say that discrimination based on hairstyle may not still fall within the prohibition of unreasonable discrimination by housing providers under the Unruh Civil Rights Act (“UCRA”). Here is why:
The FEHA explains that the definition of “race” discrimination (which is prohibited under its legislation) includes “traits historically associated with race.” It then gives examples of traits historically associated with race such as “hair texture and protective hairstyles,” including hairstyles frequently worn by African-Americans, “such as braids, locks, and twists.”
The Unruh Civil Rights Act also prohibits discrimination on the basis of race, although the UCRA does not explain the meaning “race” in its legislation as does the FEHA.
If a discrimination lawsuit is brought under UCRA against an owner by a rejected applicant for a vacancy, with the applicant claiming the grounds for rejection was his/her unusual hairstyle, a jury may well find that the rejection was impermissibly based on race. While the applicant’s claim of hairstyle discrimination is likely to be bogus (there were probably other legitimate reasons why the applicant was rejected), the owner or his manager would be wise not to comment on the applicant’s hairstyle when first showing the vacant unit to any applicant. In other words, don’t say, for example, “Oh what an unusual hairstyle you have,” or even “I really like your wild hair color.”
Recommendations
Before the enactment of the new FEHA legislation, there were two types of communications that should never be uttered, even in jest: One is to a flight attendant which pertains to anything about a bomb being on the plane. The other is to a bank teller about the bank being robbed.
With the enactment of new hairstyle legislation, I would add a third communication: Never utter anything to a tenant applicant about that person’s hairstyle (or for that matter, personal appearance at all).
Even though the prohibition against hairstyle discrimination is expressly limited under the Federal Employment and Housing Act to employers against their employees, and it does not expressly apply for the benefit of tenants or applicants under the Unruh Civil Rights Act, it is best for an owner not to comment about that person’s hair, particularly as to an applicant for the rental of an apartment unit.
It would also be prudent for owners to instruct their resident managers not to comment about any tenant’s or applicant’s hairstyle or personal appearance. That instruction should be both verbal as well as included in the employment contract between the owner and the manager.
In fact, when I draft employment contracts on behalf of owners who are about to hire new managers, I list a string of prohibited acts by the managers. Those include discrimination based on matters of race, sex, sexual orientation, gender, color, hairstyle, religion, creed, citizenship, primary language, immigration status, ancestry, national origin, marital status, familial status, source of income, age, children, physical or mental handicap, and disability, as well as discrimination against persons having the Acquired Immune Deficiency Syndrome (i.e., AIDS).
Moreover, I not only include all of them in the resident manager employment contracts I draft, I conspicuously place the anti-discrimination verbiage on the first page of the agreement. By doing so, I am hopeful that it accomplishes two things:
First, it immediately brings to the manager’s specific attention the categories of unlawful discrimination so hopefully the manager understands that he/she may not discriminate in those ways.
Second, in the event the manager does unlawfully discriminate against a tenant or applicant and that person then sues the owner (on the grounds that the owner is the manager’s employer), it may lessen the amount of the monetary damages a jury would otherwise award against the owner. Such a reduced award might result from the owner explaining to the jury that it was so important to the owner that the manager not discriminate, that the owner even included the anti-discrimination prohibition on the very first page of the employment contract where the manager could not miss it. The owner might conclude, “Even though I know I am responsible for any damages my manager may have caused the tenant (or applicant) for the discrimination, please don’t punish me with an excessive award as I used the utmost of good faith when I instructed the manager on the very first page of the employment agreement not to discriminate against anyone.”
Note to Attorneys: You can find the full text of the new anti-hairstyle discrimination legislation by Googling: “Crown Act SB 188.”
Postscript
I will be giving a seminar on resident manager laws at AOA’s annual Trade Show on Thursday, September 12, 2019 starting about 1 p.m. at the Los Angeles Convention Center.
The presentation will include topics such as the maximum and minimum rent that can be charged to managers in 2019 and 2020, minimum wages owed to managers, the maximum credit for free rent that can be used to offset wages otherwise owed to managers, and when the employer must pay for the manager’s waiting time, standby time or on-call time. I invite all AOA members to attend my seminar. Please introduce yourselves to me following the presentation.
Dale Alberstone is a prominent real estate attorney who has specialized in real property and resident manager law for 40+ years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.
The foregoing article was authored in September 2019. It is intended as a general overview of California law only and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Questions of a general nature are warmly invited. Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 269 S. Beverly Drive, Suite 1670, Beverly Hills, California 90212, or telephone Mr. Alberstone at (310) 277-7300.