California's Unruh Civil Rights Act, a 1959 law named after a powerful California politician, was a precursor to the federal 1964 Civil Rights Act. It prohibits businesses from discriminating against folks based on specified attributes, currently including sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. It is, by design, a very broad and flexible tool, and has repeatedly been interpreted to protect groups and classes beyond those listed explicitly. Defendants found liable can be ordered to pay up to three times the actual damages the plaintiff suffers (and no less than $4,000), and can be ordered to pay the plaintiff's attorney fees. A losing plaintiff can't be ordered to pay a winning defendant's attorney fees, with certain narrow disability-law exceptions.
Recently the Unruh Act provoked outrage. Why? Because this broad, flexible, and unilateral law was invoked creatively by the wrong people. Here's how The Mary Sue put it:
Yahoo! "News" was even more indignant:
These men's rights activists are using a 1950s law to shut down women in tech
What happened? Let Yahoo! describe it:
Two men named Allan Candelore and Rich Allison, who had each prepaid a $20 registration fee on the Chic CEO website, tried to enter the restaurant. According to a legal complaint that they later filed with National Coalition for Men president Harry Crouch, Burns turned them away at the door, saying the event “was only open to women.” They took a photo, left the premises, then promptly initiated legal action, turning to a 1959 California law originally written to prevent discrimination against minorities and women.
According to The Mary Sue, this was enough to ruin Chic CEO, an outfit organized to support women in tech:
How much did that lawsuit end up costing them? $510,000. [edited to add: my clumsy quoting here made it seem that the Mary Sue was talking about this lawsuit with that number; they were talking about another one. Follow the link to see the context.]
It’s not clear how much the out-of-court settlement cost Chic CEO, but it was enough to virtually drive them out of business.
The Mary Sue is outraged that a civil rights law is being "twisted" by men, and aghast that the legal system allows meritless claims to extort compliance:
Frankly, the lawsuits are ridiculous. But more than that (so much more than that), there’s a special kind of insult in taking an anti-discrimination law intended to protect marginalized people and twisting it to “protect” those least in need of protection. It’s sad, to be honest, that men’s rights activists (ughh) can exploit something like that to effectively shut down organizations and companies like Chic CEO trying to improve female representation in tech and other industries.
The threat of a lawsuit is usually enough to shut a company down, even if the company stands a good chance of winning in court, simply for one reason: it costs less to settle than it does to fight in court. With the knowledge of a likely easy settlement, plus precedent on their side, how messed up is it that this is a weapon that can be used to stamp out organized attempts at improving representation before it even begins?
Here's the thing: if you only wake up to how broken the system is when it's abused by one of your ideological enemies, you're a vapid partisan hack. The legal system — including, but not "only" or "especially" civil rights laws — is a tool of extortion, deceit, and thuggery. I've seen nothing in my 21 years as a lawyer to make me think that civil rights plaintiffs are any more likely than other plaintiffs to abuse the system. But some laws lend themselves to abuse — like laws that are deliberately broad, deliberately flexible, and that award attorney fees only to prevailing plaintiffs, removing all deterrents against frivolous suits and piling on incentives to cave to extortion. The result is a system that's profitable for lawyers, mediocre for individual plaintiffs, and a constant burden on potential defendants in a way that utterly fails to distinguish between wrongdoers and the innocent.
If you're only irritated by this when a group of Wrong People target a group of Right People, you're not to be taken seriously.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016