Southwest California Legislative Council letter of OPPOSITION to SB899 Hueso. Gender discrimination

1. April 19, 2016
The Honorable Ben Hueso
California State Assembly
Sacramento CA 95814
RE: SB 899 (HUESO) GENDER DISCRIMINATION
Position: OPPOSE
The Southwest California Legislative Council is an advocacy coalition comprised of representative
members of the Temecula Valley, Murrieta, Wildomar, Menifee Valley, Lake Elsinore Valley and Perris
Valley Chambers of Commerce representing more than 3,500 employers dedicated to promoting job
growth, economic expansion, and preserving the overall global competitiveness of California.
The SWCLC is OPPOSED to SB 899 (Hueso), as amended on March 31, 2016, which has been
labeled a JOB KILLER by the CalChamber. SB 899 intends to force retailers and grocery stores to
charge the same price for “male” versus “female” products, which will require them to either engage in
gender stereotyping with regard to consumer goods or increase prices to the highest price for a good of
“similar or like kind,” as well as expose these employers to the same costly, drive-by litigation that has
been plaguing businesses in California with regard to disability access.
SB 899 Forces Retailers and Grocery Stores to Engage in Gender Stereotyping or Increase
Consumer Prices:
SB 899 amends Civil Code Section 51.6 to specify that retailers and grocery stores cannot discriminate
on the basis of gender for prices charged for “goods” of a “similar or like kind.” The basis for this bill, as
set forth in the fact sheet, is women with smaller paychecks are required to pay more for women’s
products. In order to avoid litigation and costly statutory penalties/damages, a retailer or grocer will
essentially have two choices under this bill: (1) try to decipher between which goods are male products
versus female products and price such goods that are “similar or like kind” the same amount; (2) or
simply increase the price for every good that is “similar or like kind” to the same higher amount. Neither
of these options are beneficial to the consumer.
While goods such as undergarments may be easier to distinguish between male and female, other
items such as children’s toys, fragrances, food, toiletries, home goods, artwork, dishware, or even
clothes are extremely difficult to identify as male versus female. Is a shirt that is pink a female shirt just
because of the color? Comparatively, is a blue or teal razor a male razor just because of its color?
Professors engaged in children’s studies have warned parents for years about identifying toys as girl
versus boy given the harmful effects it can have on children. Specifically, in a February 2015 article
written by Rebecca Hains, a professor at Salem State University and assistant director of the Center for
Childhood Youth Studies, titled “The Problem with Separate Toys for Girls and Boys,” she cautioned
parents of the adverse consequences associated with assigning gender to toys. Hains’ article warns
that such gender stereotyping encourages the notion that boys and girls are different and “lies at the
core of many of our social processes of inequality.”
In August 2015, a major retailer actually agreed to remove any gender labels in children’s goods. This
move was applauded by psychologists who stated that gender labeling products could have ongoing

2. consequences: “[c]hildren may then extend this perspective from toys and clothes into future roles,
occupations, and characteristics.” See Alice Robb, New York Times Live, August 12, 2015, “How
Gender-Specific Toys Can Negatively Impact a Child’s Development.”
Despite these adverse risks and consequences noted, SB 899 would force retailers and grocers back
into gender stereotyping in order to make sure they do not charge a consumer a higher price for a
female product versus a male product of a similar or like kind.
Alternatively, a retailer or grocer could simply match the price of every product that is “similar or like
kind” to ensure there is no discrepancy that could expose them to litigation. This uniformity in pricing
will most likely increase prices for consumers. Retailers determine the price of goods, in part, based
upon the wholesale amount for which they obtain the goods in the supply chain. A retailer is not going
to reduce the price of a product below wholesale value in order to match the lowest price of a good that
is “similar or like kind.” Rather, the more likely reaction will to raise the price of all goods to match the
highest priced product that is similar or of like kind.
Both of these consequences will have negative impacts on consumers.
SB 899 Exposes Retailers and Grocery Stores to Significant Litigation Similar to the ADA
Litigation Plaguing California:
SB 899 includes ambiguous provisions and mandates that will lead to significant exposure to litigation
fir California businesses. First, the term “similar or like kind” is not defined and, when applied to
thousands of different goods, will create uncertainty, confusion and litigation. For example, is a
perfume that has been identified as female “similar or like kind” to a cologne, identified as male, even
though the ingredients may be different? Is a shirt labeled as female “similar or like kind” to a shirt
labeled as male, even though different materials are utilized? Given the lack of an objective definition
in SB 899, the only way to answer such questions will be through costly litigation.
The risk of litigation is exacerbated by the statutory scheme in which SB 899 is located. SB 899
specifies that any violation is subject to a $1,000 civil penalty if the retailer or grocer fails to correct the
violation within 30 days of receiving written notice. However, SB 899 also specifies that an individual is
entitled to relief under Civil Code Section 52, which is the same section that has created the ADA drive-
by litigation scheme in California. Specifically, Civil Code Section 52(a) provides a minimum $4,000 in
actual damages, per violation, with the right to attorney’s fees.
Accordingly, under the intent of SB 899 as set forth in the author’s fact sheet, a consumer could go to a
separate retailer/grocery store or even the same retailer/grocery store on a daily basis and purchase
two items they believe are similar in kind, yet priced differently (even $0.01 would be enough), and
request the business to settle with them for a minimum of $4,000 or face costly litigation. This is the
exact type of frivolous litigation that businesses across California are struggling with for alleged ADA
violations, as it is the exact same section of the Civil Code that covers both issues. California
businesses do not need exposure to another layer of such extortionist litigation as SB 899 will create.
The costly class action litigation under the existing provisions of Civil Code Section 51.6 with regard to
specific services demonstrates the risk of even more future litigation if SB 899 becomes law.
Specifically, in Reese v. Wal-Mart Stores, Inc. 73 Cal.App.4th
1225 (1999), a male customer tried to
pursue a class action against the retailer for offering “Ladies Day” promotional discounts for oil
changes. Notably, the customer actually went into the retailer that day solely to create a claim against
Wal-Mart for gender discrimination. The court noted “[the plaintiff] had deliberately gone to Wal-Mart,
rather than his normal automotive service, on the day in question for purposes of being denied the
“Ladies Day” discount. And he had done so only after he was introduced to his counsel.” Reese, 73
Cal.App.4th
at 353. See also Surrey v. TrueBeginnings, 168 Cal.App.4th
414 (1999) (denying a male
customer who claimed he was denied free internet dating services as a violation of the Gender Tax
Repeal Act, summary judgment based upon his lack of standing); and Angelucci v. Century Supper

3. Club, 41 Cal.4th
160 (2007) (male customers pursued litigation against a nightclub for charging women
a lower admission price).
Expanding Civil Code Section 51.6 to all goods in a retail or grocery store will only expand the number
of individuals who will intentionally seek out alleged violations for personal financial gain.
For these and other reasons, the Southwest California Legislative Council is must OPPOSE SB 899
(Hueso) as a JOB KILLER, and ask for your 'NO' vote when it comes before you for consideration.
Respectfully,
Don Murray, Chair Gene Wunderlich, Legislative Liaison
dmurray@commercebanktv.com gad@swcaladvocacy.com
cc:
Senator Ben Hueso 916.651.4940
Senator Jeff Stone 916.651.4928 951.894.3536
Senator Mike Morrell 916.651.4923 909.919.7739
Senator Richard Roth 916.651.4931 951.894.3757
Senator Joel Anderson 916.651.4938
California Chamber of Commerce 916.325.1272