However ridiculous it may seem, a $4 billion class action suit alleging teen idol Miley Cyrus discriminated against Asian Pacific Islanders with a facial expression does present the novel legal issue of whether a celebrity is a “business establishment.”

With estimated earnings of $25 million for the year ended June 2008, there's no doubt Cyrus is a big business. The suit filed last week by a Los Angeles woman alleges she is a “business establishment” liable under California's Unruh Act for slanting her eyes when she recently posed for a photograph with a group of friends.

Cyrus's “racist, prejudicial, stereotypical gesture ... specifically targeted persons of Asian Pacific Islander descent based on their race, color, ancestry and national origin,” the complaint says. Plaintiff Lucie Kim claims to represent a class of more than one million Asian Pacific Islanders living in California.

The Unruh Act prohibits discrimination by a “business establishment of any kind whatsoever.” The term “business establishment” is not defined, but courts have applied the law to everything from restaurants and hotels to country clubs and apartment buildings.

“The word 'establishment,' as broadly defined, includes not only a fixed location, such as the 'place where one is permanently fixed for residence or business,' but also a permanent 'commercial force or organization' or 'a permanent settled position (as in life or business),'” the California Supreme Court said in Burks v. Poppy Construction Co., 57 Cal.2d 463 (1962).

Kim draws on that language in arguing that Cyrus “is a business establishment within the scope of the Unruh Civil Rights Act, Civil Code Section 51.”

The pop star is engaged in an “occupation or trade,” the suit says, and

Due to her notoriety and active marketing of her Image, Cyrus is in fact a commercial force or organization and currently holds a permanent settled position in the entertainment industry, which settled position is confirmed by Cyrus' appearance at the Grammys, television shows, internet presence, music and appearance at other entertainment awards programs.

Whether anyone has a “permanent settled position” in the entertainment business is an arguable point. But as a matter of law, Kim is probably stretching the Unruh Act too far.

In Curran v. Mount Diablo Council of Boy Scouts of America, 17 Cal.4th 670 (1998), California Supreme Court Justice Stanley Mosk concluded that “the phrase 'business establishments' in section 51 means areas of activity, whether or not in public view, and whether or not at a physical location, that encompass proprietor-patron relationships.”

Proprietor-patron relationships, he said, “involve the providing of goods or services, nongratuitously, for a price or fee, in the course of relatively noncontinuous, nonpersonal, and nonsocial dealings.”

While Cyrus's fans pay a price or fee for her services, no California case has defined the entertainer-fan relationship as a proprietor-patron relationship. And if the state Legislature had intended the Unruh Act to prohibit discrimination by an individual organized as a business, it could certainly have specified as much.

The municipal code of Davis, Calif., for example, defines “business establishment” as “Any person, however organized, which furnishes goods, services or accommodations to the general public.”

By Matthew Heller
On Point