Legislation To Prohibit Business Charging Different Price for Similar Goods Based on Gender

On March 25, Assembly Members Rebecca Bauer-Kahan and Cristina Garcia amended their Assembly Bill 1287 related to gender-based pricing. The bill would add Section 51.14 to the Civil Code. Existing law, the Gender Tax Repeal Act of 1995, prohibits a business establishment from discriminating against a person because of the person’s gender with respect to the price charged for services of similar or like kind.

As introduced, the bill would have expressed the intent of the Legislature to enact legislation that would relate to ensuring that there is no gender-based pricing in California. Substantive amendments adopted on March 25 have now been added to the bill.

Section One of the bill would add Civil Code Section 51.14, which would become part of the Unruh Civil Rights Act. The bill would define the following terms: “business” (any business that sells good in this state), “goods” (consumer products), and “substantially similar.” The definition of “substantially similar” is crucial to this proposed new law. It means two goods that exhibit the following four characteristics:

• No substantial differences in the materials used in production
• The intended use is similar
• The functional design and features are similar
• The brand is the same
• Note that a difference in coloring among any of the goods is not to be construed as a substantial difference.

The bill would prohibit any person, firm, partnership, company, corporation, or business from charging a different price for any two goods that are substantially similar if those goods are priced differently based on the gender of the individuals for whom the goods are marketed and intended. Nonetheless, the new section of law would not prohibit price differences in goods or services that are based specifically on the following:

• The amount of time it took to manufacture those goods
• The difficulty in manufacturing those goods
• The cost incurred in manufacturing those goods
• The labor used in manufacturing those goods
• The materials used in manufacturing those goods
• Any other gender-neutral reason for having increased the cost of those goods.

Whenever there is an alleged violation of this new section of law, the Attorney General may seek an injunction. If a court finds a violation, an injunction may be issued by the court without requiring proof that any person has, in fact, been injured or damaged. A court could also make direct restitution. A court may also impose a civil penalty not to exceed $250 for a first violation and not more than $500 for subsequent violations. Note that all identical items differently price on the basis of gender are considered a single violation.

This bill is expected to be heard in the Assembly policy committee in April.