COVID-19

Over the past month, we have seen an unprecedented use of local, state and federal emergency powers as a result of the spread of the COVID-19 virus. Emergency powers are a deviation from normal governance and are only invoked in the most extreme circumstances which don’t permit the normal deliberative process involving the Board of Supervisors, Senate, Assembly and/or Congress. In short, democracy takes time and disasters such as pandemics can’t wait. A proclamation of a State of Emergency allows the executive branch, be it the Mayor, Governor and/or President, to suspend the normal democratic process involving the legislative branch, and act decisively where conditions of extreme peril to the safety of persons and property have arisen. This article outlines the legal basis for our current state of emergency and the various unprecedented orders/laws which have been issued and/or passed. I myself had to take a self-study crash course in emergency authority to write this article as universities don’t offer a class on pandemics in law school. Other articles authored by my attorney colleagues at the Dolan Law Firm – Emile Davis Esq., Mari Bandoma Esq., and Vanessa Denniston Esq. – are published herein, and will continue to be published in my Thursday column to update readers as the emergency continues to unfold.

On February 25, 2020, San Francisco Mayor London Breed, before even one case of COVID-19 was diagnosed within San Francisco, issued a Proclamation Declaring the Existence of a Local Emergency threatening the lives, property and welfare of the City and its Citizens. On March 4, 2020, Governor Gavin Newsom issued a statewide Proclamation of a State of Emergency. The decisive, albeit inconvenient, orders put into effect by these two exemplary leaders have saved thousands of lives. This action is why we are not suffering like New York. The Mayor’s Proclamation is issued pursuant to The San Francisco Charter, section 3.100(13), which provides that “the Mayor may direct the personnel and resources of any department, command the aid of other persons, and do whatever else the Mayor may deem necessary to meet the emergency.” Chapter 7, Section 7.1, of the San Francisco Administrative Code defines an emergency as “the actual or threatened existence of a disaster of extreme peril to the safety of persons or property with the City and County” and goes on to elaborate a long list of catastrophes such as fire, flood, storm, riot, earthquake, war, enemy attack, and epidemic. Pursuant to California Government Code, Section 8680, whenever a local emergency is proclaimed by an official designated by ordinance, the local emergency shall not remain in effect for a period in excess of seven days unless it has been ratified by the governing body (here, the board of supervisors, which it was). It must then be ratified every 60 days thereafter, unless that limit is waived by the Governor as part of his own proclamation of emergency.

The Governor’s Proclamation was issued pursuant to California Government Code, Section 8652, empowering the Governor to proclaim a state of emergency when he declares the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state. The list of perils under which the Governor can declare such a state of emergency also includes epidemics and goes farther to include drought, cyberterrorism, energy shortage, plant or animal infestation or disease, and volcanic prediction. The Governor’s authority vests when he determines that such a peril exists and is either a) requested to declare an emergency by a mayor, city manager, county administrative officer, or chair of a Board of Supervisors, or b) he/she determines that the magnitude of the peril is, or is likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city. In this crisis, both of those occurred.

The issuance of a Proclamation by a mayor or governor “cuts through red tape” and waives many of the procedural and regulatory steps that have to be followed under normal conditions, temporarily granting significant power and decision-making authority within the executive branch, i.e., the Mayor and Governor.

Pursuant to Section 7.6 of the San Francisco Administrative Code, the Mayor has broad powers “to make and issue rules and regulations on matters reasonably related to the protection of life and property as affected by an emergency.” These powers allow her to enter into agreements with public and private agencies to obtain vital supplies, equipment and properties found lacking and needed for the protection of life and, if required immediately, to commandeer the same for public use. She is also empowered to requisition necessary personnel, property or material of any City department or agency to address the emergency.

Pursuant to Government Code, Section 8627, “During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California.” The orders and regulations he makes have the force and effect of law. The Governor may direct all agencies of the state government to utilize and employ state funds, personnel, equipment, and facilities for the performance of any and all activities designed to prevent or alleviate actual and threatened damage due to the emergency; and he may direct such agencies to provide supplemental services and equipment to restore any services needed to provide for the health and safety of the citizens of the affected area. Any agency so directed by the Governor may expend any of the moneys which have been previously appropriated to it in performing such activities, irrespective of the particular purpose for which the money was originally appropriated.

The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. The Governor can continue the state of emergency through another proclamation if necessary.

Most recently, Governor Newsom requested that the President declare a national state of emergency to provide federal emergency relief to California, and, as a result, California will obtain federal emergency relief immediately, along with additional funding through the recently passed Federal Stimulus Package. Since the State of Emergency has been imposed, the Governor and the Mayor have taken significant action.

The Governor’s proclamation paved the way for the closure of schools, shelter-in-place orders, admittance of out of state health care providers to treat patients, funds and personnel to support relief efforts of local authorities, access to any state owned properties, including state fairgrounds, required by the Office of Emergency Services to respond to the COVID-19 epidemic, imposition of anti-price-gouging laws, and funding for purchase of medical supplies and medications. Additionally, all residents have been ordered to heed the advice of emergency officials to protect their safety and the safety of others.

The Mayor’s February 25th Proclamation required all officers and employees to undertake all steps requested by the Director of Public Health. On March 6th, the San Francisco Public Health Officer (PHO) Thomas Aragon MD, D.Ph., issued a Declaration of a Local Health Emergency pursuant to California Health and Safety Code, Section 101080. Section 101080 allows a local health PHO to immediately quarantine individuals that may have been exposed to biological agents that may spread to others. On that same date he encouraged citizens to employ social distancing.

On March 11th, the PHO began exercising his power by ordering certain City facilities to prohibit non-essential group events of more than 50 people. On March 13th, he prohibited gatherings of 100 people or more in public venues. That same day, the Mayor issued a Second Supplement to the Emergency Proclamation enacting a moratorium on evictions for non-payment of rent. Additionally, she prohibited the discontinuation of water, sewer and power services for non-payment of utility bills.

On March 16th, the PHO issued a “Shelter-in-Place Order” requiring most people to remain home subject to certain exceptions to obtain essential services and supplies, requiring closure of non-essential businesses through April 7, 2020, and the closing of all restaurants to in-person dining. A violation of an order issued by the PHO is a misdemeanor, punishable by a fine of up to one thousand dollars ($1000), or by imprisonment in the county jail for a period of up to 90 days, or both.

Also on March 16th, Governor Newsom issued Executive Order N-28-20, finding it was necessary to promote stability among commercial and residential tenants to promote public health and mitigate the economic impact of the crisis, and waiving certain provisions of state law so local jurisdictions could take action to help these tenants.

On March 17th, the Mayor issued a Third Supplemental Declaration authorizing a program whereby the City will provide financial assistance to employers that agree to supplement their existing paid sick leave to employees who work in the City. She also suspended local laws that required restaurants providing take-out to also have dine-in facilities, clearing the way for all restaurants to provide take-out services.

That same day, the Governor signed emergency legislation, passed by the legislature, authorizing up to $1,000,000.00 in funding to increase hospital capacity, provide lifesaving services to Californians isolating at home, purchase Personal Protective Equipment (PPE), and permit the cleaning of schools and funding to child care facilities that remain open.

On March 18th, the Mayor issued a Fourth Supplement to the Proclamation providing a temporary moratorium on eviction for non-payment of rent by commercial tenants directly impacted by the COVID-19 crisis with gross revenue at or below $25,000,000.00. This Order precludes eviction of a commercial tenant for failure to make a rent payment after March 17th, without providing written notice and at least one month to “cure” the breach/non-payment by paying the back rent or by providing documentation that the failure to pay was due to a financial impact from COVID-19 because of a substantial decrease in business income due to illness, reduced hours or consumer demand, or temporary closure because of orders of the PHO. If the tenant provides that documentation, they are given an additional month and the landlord has to engage in good faith discussions to attempt to develop a payment plan. If a payment plan can’t be agreed to, the tenant needs to either pay the rent or provide further evidence of a continuing inability to pay due to COVID-19, which then allows for an additional month to pay. Thereafter the tenant may obtain additional one month extensions by providing updated documentation each month for a maximum of six months. If the tenant hasn’t paid at the end of the six month period, the landlord may proceed with eviction for non-payment of rent due. This provision will last for a period of 30 days, minimum, and can be extended by the Mayor as long as the State of Emergency exists.

On March 18th, The San Francisco Superior Court stayed (suspended) all unlawful detainer (eviction) actions for 90 days, except those resulting from violence, threats of violence, or health and safety issues.

On March 19th, the Governor issued Executive Order N-33-20, and the California PHO issued an order requiring people to stay at home unless they fall within one of 16 sectors needed to maintain continuity of “operations of the federal critical infrastructure.” Violation of the Governor’s order – like the SF PHO’s shelter-in-place order – is punishable as a misdemeanor with a fine up to $1,000.00 or imprisonment, not to exceed six months.

On March 20th, Governor Newsom announced deployment of the California National Guard to protect short-term food security to isolated and vulnerable citizens. The National Guard has been deployed to set up logistics in support of the food bank distribution network as the demand for its services has grown.

On March 23rd, the Mayor issued a Fifth Supplement to the Proclamation, clarifying the relief provided for residential tenants to include housing providers who are exempt from the Rent Ordinance because their rent is controlled or regulated by the City; to allow tenants to obtain extensions due to expenses that are non-medical in nature; and to modify the notification and timing procedures that apply when a tenant requires an extension. The moratorium prohibits eviction if, within thirty days after the date the rent is due, the tenant provides notice to the landlord that the tenant is unable to pay the rent due to “financial impacts related to COVID-19.” The definition of “financial impacts” has been broadened to include a substantial loss of household income due to a business closure, loss of paid hours of work or wages, layoffs, or extraordinary out of pocket expenses. Within one week of a tenant’s providing an inability to pay they must provide the landlord documentation verifying that the inability to pay is related to COVID-19. If the tenant fails to provide this documentation, assuming the courts are hearing eviction cases, a landlord may proceed with an eviction. If the tenant does provide the documentation, they are granted an additional month to pay the rent. If the tenant fails to pay the rent, the landlord must inform the tenant in writing that they are in breach of the rental agreement and the landlord and the tenant must then attempt to discuss the matter in good faith to develop a payment plan for the tenant to pay the missed rent. The Order expires 30 days after it was issued, upon the termination of the Proclamation of Local Emergency, or upon further Order from the Mayor. It may be extended by a period of another 30 days if the Mayor determines it is warranted. Upon termination of the Order, a tenant who followed the law and provided the required notice shall have up to six months to pay the rent owed to the landlord before the landlord can move to evict because of the missed rental payments.

On March 25th, Governor Newsom announced that he secured agreements with Citigroup, JPMorgan Chase, U.S. Bank, Wells Fargo, as well as nearly 200 state-chartered banks, credit unions and servicers for a 90-day grace period for mortgage payments to borrowers by those property owners economically impacted by COVID-19. The participating financial institutions will waive late fees and refrain from reporting late payments to credit reporting agencies for qualifying borrowers. The agreement also provides a moratorium on foreclosure sales and evictions for 60 days.

This unprecedented pandemic, not experienced in over 100 years, will, through continued and expanding proclamations of emergency, and inevitable legislative action, continue to unfold to protect the citizens of the City of San Francisco, California, and if the President acts appropriately, the Nation. We hope this information, provided by the Dolan Law Firm, will help Examiner readers to understand and adapt to the shifting legal landscape. I pray for the health and safety of our great city, state and nation, and each of you. We, as a law firm, continue to operate at full capacity, remotely, to serve the public in personal injury, employment, and civil rights matters throughout the crisis and we will continue to provide legal information as the situation unfolds.

he harsh reality of the Covid-19 pandemic, and the government shutdowns, is that businesses are not bringing in income that was once regular and expected. As a result, many employers will be forced to lay-off or terminate hard working employees. Businesses do have the right to terminate or lay-off employees when the needs of the business call for a reduction in force and, generally, a non-union employer may make the decision about which employees to let go on whatever basis they chose. However, an employer may not make such decisions based upon a discriminatory or retaliatory motive.

For example, an employer may not use race or national origin as a basis for the decision of which employees to terminate. As is discussed elsewhere in this series of articles, there is an increase in discrimination and hate-crimes toward Asians since the onset of Covid-19. An employer may not use the national origin or race as a basis to deny Asians the right to return to work.
Similarly, most of the protected leave laws discussed throughout this series of articles contain anti-retaliation provisions. That means that when an employer is making the decision of which workers to let go, they are forbidden from using the fact that an employee took accrued sick-time or other eligible leave as a basis for that decision. A worker who took CFRA leave to care for a family member who contracted Covid-19, may not be treated differently from one who did not take that leave. Having taken qualified leave cannot be held against an employee.

Employers are generally aware of these laws and will not often state specifically that the employee is being terminated for having taken leave. Often though, hints as to the underlying motive will slip. Employers may make statements indicating “they need someone who is reliable” or who “will put the business first.” These may be clues that the underlying reason may be that the worker took protected leave.

All California employees accrue sick time at their jobs. At a minimum, an employee must accrue one hour of paid sick leave for every 30 hours worked. For a regular full-time employee, that works out to approximately 1.3 hours of sick time earned each week or 5.3 hours each month. This leave may be used for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or a family member.
Employers in California are required to track sick time on each employee paystub. Those workers that are unsure how much sick time they have remaining should be able to review their most recent paystub to see both:

a) whether the sick time is accruing correctly; and,
b) exactly how much sick time is available currently.

In San Francisco, local government has, in response to the pandemic, implemented an ordinance guaranteeing an additional 5 days of paid leave for each San Francisco worker affected by Covid-19. (Workers and Families First Program.) Importantly, this program will also provide support for local businesses by using funds specifically reserved for small businesses (50 or fewer employees) to contribute up to 40 hours at the $15.59 minimum wage per employee to help cover the impact of the additional sick leave will have on employers.

Employees who Contract Covid-19, or whose family members do, may be entitled to leave under the California Family Rights Act

The California Family Rights Act (CFRA) allows leave from work for serious medical issues. This type of leave may be available for workers affected by Covid-19. Not all employers must allow this leave, and not all employees are eligible.

An employer is a covered entity under the CFRA and must allow leave to eligible employees if they employ more than 50 employees in a 75-mile radius of your worksite. Roughly, if there are 50 or more employees in the Bay Area, with a few specific exceptions, they are likely a covered employer. In order for an employee of a covered entity to have leave rights under the CFRA, the employee must have worked for that employer for at least 1 year and must have worked 1250 hours within the last 12 months. That works out to an average of just over 24 hours a week.

If the eligibility requirements are met, the CFRA allows an employee to take up to 12 weeks of unpaid leave for a number of issues including the employee’s own serious health condition or the serious health condition of a spouse, child, or parent. If an eligible worker contracts COVID-19, is quarantined because it is suspected, or if they must stay home to care for a close family member who has contracted the virus, they should be entitled to 12 weeks of leave.

An employer may require that a worker provide medical certification of the underlying serious medical condition. That may be impractical during this pandemic given that doctors and other health care providers are working to diagnose and treat urgent medical needs. It would be advisable for a worker seeking leave under the CFRA to request a stay-at-home instruction from a physician and provide that to the employer when requesting the leave. In a pandemic, employers will be expected to use their judgment as well as public health recommendations to determine whether to require, or waive, the usual certification requirements.

A worker seeking leave should give the employer notice of the need for leave as soon as practical, however, the law anticipates that some medical conditions are emergent and do not allow for a lengthy notice period.

While CFRA provides job protection, it does not provide monetary benefits. However, up to 6 weeks of payments may be available concurrently through California Paid Family Leave.

California Paid Family Leave

California Paid Family Leave (PFL) is a program administered through the Employment Development Department. PFL provides partial wage replacement benefits to employees who need to take time off from work to care for a seriously ill family member (child, parent, grandparent, grandchild, sibling, spouse, or registered domestic partner) or to bond with a new child. There is no requirement that an employee have worked at a given employer for any specific amount of time. This is a broader scope than the CFRA, so it is possible that some persons may be eligible for these monetary benefits, but who are not given job protected leave under the CFRA.

Eligible applicants for these benefits may receive approximately 60-70% of their wages, depending upon income. The length of time at a job does not determine eligibility. However, the amount of benefits will be calculated based upon the wages that the applicant earned in the period 5-18 months prior to the claim period.

Starting on July 1 of this year, the 6 weeks of paid leave will be increased to 8 weeks available per 12 Month period. An applicant may file a claim online by going to https://edd.ca.gov and searching for “SDI Online”, or an application may be filed by mail.

As COVID-19 continues to spread across the state, it is imperative that every Californian be fully informed of their health care options should they begin to show signs and symptoms of the coronavirus. For individuals with health care coverage through an employer, Medi-Cal, Medicare, or Covered California, the state has eliminated all cost-sharing requirements on medically necessary screenings and COVID-19 testing, as well as urgent care, hospital and provider visits for the purpose of screening and/or testing for COVID-19, meaning co-pays, deductibles and coinsurance payments that would normally be billed to patients in such instances will be waived. The state has also mandated that medically necessary screenings and testing for COVID-19 will be free of charge. This will also apply to telehealth services as well as in-person doctor and urgent care visits. Such telehealth services are being expanded statewide for individuals unable to visit their doctor in person.

In light of the statewide “shelter in place” order, a great majority of individuals in the hospitality, restaurant, retail, and event industries are now without health insurance. Covered California and the California Department of Health Care Services have joined forces to assist unemployed residents with a path to insurance through state programs like Medi-Cal and Covered California. Covered California has announced it is extending its typical enrollment period to June 30. Individuals who sign up through Covered California, will have access to private health insurance plans with monthly premiums that may be lowered in response to the crisis, depending on annual income. Once a plan is selected, coverage would begin on the first of the following month, to help avoid gaps in coverage. Residents can visit CoveredCA.com to learn more.

California’s undocumented population can avail themselves of certain public programs like Medi-Cal, which does not exclude any group from accessing emergency care so long as they meet the basic eligibility requirements. Emergency care coverage will apply to those who require medically necessary testing and health care related to COVID-19, even if such individuals are undocumented. Unlike with the Covered California program, residents may apply for Medi-Cal at any time. If an individual is determined to be eligible for Medi-Cal, coverage begins immediately and is effective back to the first day of the month in which the application was submitted. Those already enrolled in the Medi-Cal program that are up for renewal will have their coverage extended, as a 90-day hold has been placed on Medi-Cal renewal reviews. For further resources on the Medi-Cal eligibility requirements and application process visit dhcs.ca.gov.

California’s Medicare program, a service offered to any California resident over 65 or with a qualifying disability, provides health care coverage for all lab tests and medically necessary hospitalizations related to COVID-19. Medicare also covers telehealth services such as “virtual check-ins” with an individual’s established physician and written communication between patient and care provider through online portals. These telehealth resources are especially useful for Medicare recipients who live in rural areas or who may have symptoms and simply wish to check in with their physician for reassurance or guidance. For further resources on how the state run Medicare program is responding to COVID-19, visit medicare.gov.

Currently, there are 22 public health labs across California testing for COVID-19, a number of which are in the Bay Area. Bay Area testing labs are currently located in San Francisco, Alameda, Richmond, Contra Costa County, San Mateo, and Solano County. Broad scale testing, however, is not yet available. If you are experiencing any of the key COVID-19 symptoms, which include fever, cough or shortness of breath, the California Department of Public Health is advising you to call your physician. Based on the severity of your symptoms, your physician may advise you to come in so a specimen can be collected for testing, or your physician may advise you to stay at home and self-isolate in the case of more mild symptoms. If you are unable to contact a physician and are experiencing severe symptoms, CDPH advises you to go to your local urgent care or call 9-1-1. Further state resources and guidelines can be found at cdph.ca.gov.

This pandemic is hitting certain communities harder than others, particularly the elderly, individuals with chronic health conditions, those without proper housing, undocumented residents, and individuals in industries that have been virtually shut down due to the “shelter in place” order. In the face of this urgent public health crisis, everyone must act with vigilance to protect those in our community in these especially high risk categories, by staying at home, practicing social distancing, disinfecting surfaces daily, and frequently washing your hands with soap and water.

The elderly, infirm and dependent are among the most vulnerable members of our community. In California, over 100,000 people live in skilled-nursing facilities. With America’s seniors being at higher risk for severe illness and complications from COVID-19, certain measures have been enacted to ensure the safety of nursing home residents from COVID-19.

The Centers for Medicare & Medicaid Services (CMS) are now significantly restricting visitors, volunteers and nonessential personnel as well as communal activities inside the nursing homes. These restrictions make sense with reports of large numbers of cases of COVID-19 spreading quickly through nursing homes. Indeed, the Centers for Disease Control and Prevention (CDC) has indicated that sick visitors and health care personnel are the most likely source of introduction of the coronavirus into nursing homes.

Recognizing Elder Abuse During the Coronavirus Crisis

These significant restrictions, however, could lead to increased abuse and neglect of the elderly as the normal safeguards of regular day-to-day contact with the outside world have been removed. Generally speaking, the easiest way to recognize elder abuse is by spending time with your loved one regularly. Visiting him or her at the facility at various times of day and days of the week will give you a better sense of your loved one’s daily routine. With the statewide “stay at home” order in place for the foreseeable future, this will be much more difficult to do. Thus, maintaining regular communication by phone or other means while practicing social distancing with your loved one is going to be extremely important during this time.

According to the California Department of Justice, some common signs of elder mistreatment include the following: poor hygiene or skin condition, untreated medical conditions, unexplainable dehydration or malnourishment, unusual confusion, depression, or withdrawal. By knowing what to watch out for, you may be more likely to identify abuse if it occurs. Since mistreatment commonly escalates, this can be important in order to ensure any abuse that occurs is immediately caught and stopped.

Types of Elder Abuse

Elder abuse comes in many forms and an individual can face one type of abuse or multiple types at once. These include but is not limited to:

• Neglect: the failure to provide adequate care on the caregiver’s part which can involve failing to provide social stimulation, medical care, nutritious food or clean water, or attending to the individual’s hygiene needs;
• Physical abuse: any instance of hitting, kicking, or other physical harm inflicted on an individual as well as denying an individual food or medical care;
• Emotional abuse: abuse that damages the victim’s self-esteem and makes him or her feel unwanted and unloved;
• Psychological abuse: abuse that involves manipulating the victim’s sense of reality and his or her perception of events;
• Sexual abuse: anytime the victim is subjected to unwanted sexual contact or sexual relations to which he or she cannot consent, he or she faces sexual abuse; and
• Financial abuse: the mistreatment that involves taking money and valuables from elderly victims, either through direct or deceptive means.

Reporting Elder Abuse and Nursing Home Neglect

If you suspect that your loved one has been subjected to any or multiple types of elder abuse, or if you care concerned that the nursing home he or she is in has not taken the precautions it should to protect your loved one from COVID-19 such as taking the steps to restrict visitors and nonessential personnel from being in the facility or failing to provide personal protective equipment to health care personnel, don’t hesitate to take action. If you believe that your loved one is in immediate danger, call 911. If there is no immediate risk of harm, report the facility to Adult Protective Services, a department with the California Department of Social Services.

California Law Protections from Elder Abuse and Neglect

California law provides for recovery of damages for pain and suffering, economic damages and punitive damages when there has been recklessness, fraud and/or patient abandonment. The Dolan Law Firm can help you identify all of your loved one’s damages and pursue compensation for them from the party responsible for the abuse.

The sudden emergence of racist and violent attacks towards people of Asian descent is reminiscent of the discrimination and harassment faced by American Muslims, Arabs and South Asians in the United States after 9/11. Reports of microaggressions in public, discrimination by business establishments, workplace discrimination and harassment, and threats of and actual acts of violence towards Asian Americans and Pacific Islanders have been on the rise.

Racially-motivated hate crimes and threats from white supremacists and other domestic groups have also been on the rise. There are ongoing federal investigations related to extremists exploiting the Covid-19 pandemic. The Federal Bureau of Investigation’s New York office issued an alert reporting that extremists groups are encouraging intentional spread of the coronavirus to police officers and members of the Jewish Community. The Department of Homeland Security also warned about white supremacists calling to spread the virus and target diverse neighborhoods and places of worship.

Discrimination and hate-based attacks like these have far-reaching implications for our society It is a problem that should not be ignored, lest it grow worse. This article discusses the various available causes of action, theories of liability and potential defendants to address the heinous attacks on individuals or groups based on race, national origin and ethnic background in civil court.

Discrimination by Business Establishments

The Unruh Civil Rights Act specifically outlaws discrimination by all business establishments in California based on sex, race, color, religion, ancestry, national origin, mental or physical disability, age or medical condition (including HIV status). “Business establishments” includes but is not limited to hotels, restaurants, theaters, hospitals, and retail stores.

Workplace Discrimination and Harassment

An employer who treats an employee differently because of race, national origin, or ethnic background or fails to protect an employee from race, national origin or ethnicity-based harassment is violating Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”). There are two main types of workplace discrimination: disparate treatment and disparate impact. Disparate treatment occurs when an employment action is taken by an employer against an employee because of their race, national origin, ethnicity or other protected characteristic. Disparate impact happens when an employer’s actions create a policy that discriminates against an entire protected group of employees.

Hate Crimes

Ralph and Bane Acts

The core causes of action in a hate-crime based civil action, will likely be the Ralph Act or Bane Act. If you are a victim of violence, both are likely to apply.

The Ralph Act guaranties that each person in California be free of violence, intimidation and the threat of violence, against their person or property based upon actual or perceived protected classifications, including, but not necessarily limited to: citizenship, immigration status, political affiliation, race, and national origin.
The Bane Act is slightly different, it guarantees that persons in California be free from interference by the actual or attempted “threat, intimidation, or coercion”…”with the exercise or enjoyment”…”of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.

Related Causes of Action

The perpetrator of the hate crime may also be liable for Intentional Infliction of Emotional Distress, Assault and Battery and potentially general negligence. Intentional Infliction of Emotional Distress occurs when an individual purposely causes severe emotional distress to you as a result of extreme and outrageous conduct. Examples of Intentional Infliction of Emotional Distress claims can include racial insults and conduct that threatens your physical security (although a physical injury is not necessary). The “legal” definition of assault differs from how the word is normally used in everyday language. According to the legal definition, assault occurs when a person demonstrates the intent to hurt you and you believe that you will be hurt, but there is no actual contact or physical injury. Battery requires the actual use of force. It occurs when a person intentionally and harmfully touches you without your consent. A person acts intentionally if their action was on purpose, regardless of whether they actually intended to harm you with their action.

Other Theories of Liability and Potential Defendants

Most often, hate crimes are criminally prosecuted against the individuals responsible. In a civil suit, it is imperative to look for other potential theories of liability and other defendants. Individual defendants rarely have the resources to compensate the victim for the damages they caused.

An employer may be liable for hate-crime based actions when the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. Theories of negligent hiring and supervision may also reach to the employer of the perpetrator of the hate crime.

The surrounding area and circumstances should be explored for a potential premises liability cause of action. Did the incident occur at a bar or restaurant? If so, a several dram-shop based duties may come into play and are impacted by levels of knowledge, security, and past events. It may not even be enough for a licensed dram shop to merely warn of dangerous persons outside the premises, they may have an active duty to assist to avoid danger to a patron.

If a vehicle was involved in the attack, other avenues of recovery may be open for the victim of the hate crime.
Groups or organizations of which the perpetrators of the hate crime are members may be responsible under agency theories depending upon the circumstances. Or, if the perpetrator of the hate crime is a member of a hate-group, that group may be independently liable for their own wrongful acts in organizing, planning or otherwise encouraging the crime.

If you think you are discriminated against or harassed by a business establishment or in the workplace, or if you have been the target of a hate crime, contact the Department of Fair Employment and Housing, or consult with a trial attorney to protect your rights.

The Asian Pacific Policy and Planning Council (A3PCON) and Chinese for Affirmative Action (CAA) have launched a reporting center to allow Asian Americans and Pacific Islanders to report incidents of hate they have experienced. To file an incident report, please go to
http://www.asianpacificpolicyandplanningcouncil.org/stop-aapi-hate/