BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 242 S
Senator Yee B
As Introduced
Hearing Date: March 31, 2009 2
Civil Code 4
KB:jd 2
SUBJECT
Civil rights: language restrictions
DESCRIPTION
This bill would make it a violation of the Unruh Civil Rights
Act to adopt or enforce a policy that limits or prohibits the
use of any language in a business establishment, unless the
language is justified by a business necessity and notification
has been provided of the circumstances and the time when the
language restriction is required to be observed, and of the
consequences for its violation.
BACKGROUND
In 2008, the Ladies Professional Golf Association (LPGA)
announced a proposed policy that would have required players on
the tour to be proficient in English by the end of 2009 and pass
an oral evaluation of their English skills or face a membership
suspension. The LPGA asserted that it was important for players
to be able to interact with the American media and event
sponsors even though many of the tour's sponsors are
international companies, and a number of the tournaments do not
take place in the United States. Notably, no other professional
sports team in the United States has a similar requirement. The
LPGA ultimately rescinded the proposal after the author of this
bill, and other lawmakers, along with numerous civil rights
organizations, raised objections to the policy.
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation, and services
(more)
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provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
evolved to include other characteristics such as medical
condition and marital status and to generally reflect the
state's public policy against discrimination in all forms.
Although the FEHA currently contains provisions that prohibit
employers from enacting policies that restrict the use of any
language among their employees, there is nothing in current law
that generally prohibits business establishments to place such
restrictions on patrons or, in the case of the LPGA tour,
participants/competitors. This bill seeks to further enhance
protections in the Unruh Civil Rights Act in order to prevent
the implementation of language restriction policies in the
future.
CHANGES TO EXISTING LAW
Existing law , the Unruh Civil Rights Act, generally prohibits
business establishments from discriminating on the basis of sex,
race, color, religion, ancestry, national origin, disability, or
medical condition, and provides civil remedies for violations of
its provisions. (Civil Code Section 51 et seq.)
Existing law , the California Fair Employment Housing Act,
provides that it is an unlawful employment practice for an
employer to adopt or enforce a policy that prohibits the use of
any language in the workplace, except if that policy is
justified by business necessity and prescribed notice of the
policy and consequences for violation of the policy is given to
employees. (Government Code Sections 12900-12996.)
This bill would make it a violation of the Unruh Civil Rights
Act to adopt or enforce a policy that limits or prohibits the
use of any language in a business establishment, unless the
language is justified by a business necessity and notification
has been provided of the circumstances and the time when the
language restriction is required to be observed, and of the
consequences for its violation.
This bill would define "business necessity" as an overriding
legitimate business purpose for which all of the following are
true: (1) the language restriction is necessary to the safe and
efficient operation of the business; (2) the language
restriction effectively fulfills the business purpose it is
supposed to serve; and (3) an alternative practice to the
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language restriction that would accomplish the business purpose
equally well with a lesser discriminatory impact does not exist.
This definition of "business necessity" is consistent with the
one codified in the FEHA.
This bill would provide for an award of damages, and attorney's
fees as may be determined by the court, for a violation of its
provisions.
This bill would provide that nothing in this bill shall be
construed to limit application of any other remedies or rights
provided under the law.
COMMENT
1. Stated need for the bill
The author states:
"While speaking one's native language is protected in cases of
employment and housing under state law, such protections are not
provided under the state's civil rights act, which prohibits
discrimination within business establishments."
"Unless English is justified by a business necessity, no one
should be discriminated against simply for speaking their
language. SB 242 will rightfully add language to the list of
protected classes within California's civil rights act."
2.This bill is consistent with existing provisions of the FEHA
and with the intent of the Unruh Civil Rights Act
The FEHA is the principal California statute prohibiting
employment discrimination covering employers, labor
organizations, employment agencies, apprenticeship programs, and
any person or entity who aids, abets, incites, compels, or
coerces the doing of a discriminatory act. It prohibits
employment discrimination based on race or color; religion;
national origin or ancestry, physical disability; mental
disability or medical condition; marital status; sex or sexual
orientation; age, with respect to persons over the age of 40;
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and pregnancy, childbirth, or related medical conditions. The
FEHA also prohibits retaliation for opposing any practice
forbidden by the FEHA or for filing a complaint, testifying, or
assisting in proceedings under the FEHA.
Under the FEHA, it is an unlawful business practice for an
employer to adopt or enforce a policy that limits or prohibits
the use of any language in any workplace, unless: (1) the
language is justified by a business necessity; and (2) the
employer has notified its employees of the circumstances and the
time when the language restriction is required to be observed
and of the consequences for violating the language restriction.
(Government Code Section 12951.) These provisions were added to
the FEHA by AB 800 (Wesson, Chapter 295, Statutes of 2001) with
the goal of enhancing protection against discrimination based on
national origin. Language, in many cases, is closely tied to an
individual's national origin, and arbitrary bans on foreign
languages could easily be used to mask intentional
discrimination on the basis of national origin.
The Unruh Civil Rights Act (the Act) specifically outlaws
discrimination in housing and public accommodations based on
sex, race, color, religion, ancestry, national origin,
disability, or medical condition. (Civil Code Section 51.) The
Act is essentially meant to cover all arbitrary and intentional
discrimination by a business establishment on the basis of
personal characteristics to those listed above. This bill seeks
to add provisions to the Unruh Civil Rights Act similar to those
in the FEHA, and further enhance protections against
discrimination. Specifically, the bill would prohibit a person
or entity from adopting or enforcing a policy that limits or
prohibits the use of any language in a business establishment.
Thus, policies such as those proposed by the LPGA last year
would be prohibited, unless the policy is justified by a
business neccessity.
This bill should not be construed as requiring business
establishments from hiring multilingual employees, or
alternatively prevent them from hiring monolingual English
speaking employees. Rather, it simply would prohibit
unneccessary restrictions on the use of any lanugage in business
establishments. Further, business establishments who, as a
general matter, utilize best practices in complying with the
FEHA are unlikely to currently have policies that arbitrarily
restrict the use of any language. Therefore, this bill, in
practice, would seemingly not place additional burdens on
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business establishments that do not already exist under the
FEHA.
As previously stated, language is often tied to an individual's
national origin, and policies restricting language usage can be
used as a mask for intentional discrimination. Public policy is
arguably best served by prohibiting restriction on the usage of
any language in business establishments unless the restriction
is otherwise justified.
3.This bill would provide for the same remedies as those
currently available for violations of the Unruh Civil Rights
Section 52 of the Civil Code contains the civil remedies
available for specified violations of the Unruh Civil Rights
Act. Subdivision (a) provides that a person who violates
provisions that prohibit discrimination in business
establishments is liable for actual damages, treble damages, and
attorney's fees.
This bill would provide that in an action pursuant to its
provisions, remedies shall be awarded as provided in subdivision
(a) of Section 52 of the Civil Code. Thus, the remedies for
violations of the bill would be the same as those currently
available for violations of existing provisions of the Unruh
Civil Rights Act which prohibit discrimination in business
establishments.
In addition, this bill would provide that nothing in the bill
shall be construed to limit application of any other remedies or
rights provided under the law. Accordingly, any existing
protections which may exist under federal or state law with
respect to discrimination on the basis of an individual's native
language, national origin, etc. would not be altered or eroded.
4.This bill does not appear to violate the California
Constitution's provisions regarding English as the official
language of the state
In 1986, voters approved Proposition 63, which amended the
California Constitution to provide that English is the official
language of the state. Proposition 63 also provided that "The
Legislature shall and officials of the State of California shall
take all steps necessary to insure that the role of English as
the common language of the State of California is preserved and
enhanced. The Legislature shall make no law which diminishes or
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ignores the role of English as the common language of
California." (art. III, section 6, California Constitution.)
The U.S. Court of Appeals for the Ninth Circuit has noted that
Proposition 63 is "primarily a symbolic statement concerning the
importance of preserving, protecting, and strengthening the
English language." (Gutierrez v. Municipal Court, 838 F.2d
1031, 1044 (9th Cir. 1988), vacated as moot, 490 U.S. 1016
(1989)). The court further noted that, in addition to its
symbolic nature, Proposition 63 was solely concerned with
"official government communications." (Id.) Notably, in the
official ballot pamphlet argument in favor of Proposition 63,
proponents argued that "Nothing in the amendment prohibits the
use of languages other than English in unofficial situations,
such as family communications, religious ceremonies, or private
business." Because this bill would not have the effect of
preventing governmental communications, or for that matter,
private business communications, from being undertaken in
English, it does not appear to violate these provisions of the
Constitution.
Support : Anti-Defamation League; AFSCME, AFL-CIO;
Japanese-American
Citizens League; Korean American Coalition; California State
Conference of the NAACP; Fil-Am Star; San Francisco Japanese
American Citizens League; California Nurses Association; Korean
American Bar Association of Northern California; California
Federation of Teachers
Opposition :Capitol Resource Family Impact
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 800 (Chapter 295, Statutes of 2001) (See
Comment 2.)
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