BILL ANALYSIS
SB 242
Page 1
Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 242 (Yee) - As Introduced: February 24, 2009
As Proposed to be Amended
SENATE VOTE : 21-15
SUBJECT : Civil rights: language restrictions
KEY ISSUE : SHOULD LANGUAGE REQUIREMENTS AND RESTRICTIONS
IMPOSED BY BUSINESSES BE JUSTIFIED BY BUSINESS NECESSITY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill was prompted by the highly controversial decision last
year by the Ladies Professional Golf Association (LPGA) to
require players on the tour to be proficient in English or face
termination of their participation in the LPGA. The Association
initially asserted that this policy was essential for players to
be able to interact with the American media and event sponsors.
However, the author and many critics noted that many of the
tour's sponsors are international companies, a number of the
tournaments do not take place in the United States, and no other
professional sports team in the United States has a similar
requirement. The LPGA ultimately rescinded the proposal after
the author, other lawmakers, and numerous civil rights
organizations, raised objections. Nevertheless, the controversy
highlighted the importance - both for businesses and for those
with whom they interact - of clarifying the extent to which
businesses should be allowed to impose language restrictions on
others. This bill proposes a balanced approach, supporters
state - generally disfavoring such language rules, but
acknowledging that they may be justified by business necessity
in some circumstances and to that extent should be allowable
provided that, in the interest of fairness, the people to whom
the policy applies are informed of the policy and the
consequences for violation. This is the same rule that has long
been in effect for employment policies, and according to
supporters has proved to be a rational and workable solution in
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the workplace. In response to concerns from some business
groups that the bill could be misinterpreted to impose a new
duty on businesses to provide translation or interpreters for
customers, the author proposes to amend the bill to clarify that
this is not the intent, as well as to clarify that the bill does
not apply to or change the rules regarding the employment
relationship.
SUMMARY : Generally prohibits language discrimination by
business establishments, but permits such discrimination when
justified. Specifically, this bill :
1)Clarifies that it is a violation of the Unruh Civil Rights Act
for a business to adopt or enforce a policy that requires,
limits or prohibits the use of any language in or with the
business unless the language is justified by 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.
2)Defines "business necessity," consistently with the existing
definition of that term regarding language discrimination in
employment, 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 language restriction that would
accomplish the business purpose equally well with a lesser
discriminatory impact does not exist.
3)Provides that this Act does not impose liability for failure
to undertake special duties, unless otherwise required by law,
that the act does not negate existing rights and remedies, and
that the Act is separate and independent of any other rights
or remedies.
4)Clarifies that the Act does not apply to policies or rules
regarding the employment relationship between a business
establishment and its employees.
EXISTING LAW :
1)Pursuant to the Unruh Civil Rights Act, generally prohibits
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business establishments from discriminating on the basis of,
race, ancestry, national origin, and other characteristics.
(Civil Code section 51.)
2)Provides pursuant to the California Fair Employment Housing
Act that it is an unlawful employment practice for an employer
to adopt or enforce a policy regarding 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.)
COMMENTS : The author explains the purpose of the bill as
follows:
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.
The issue stems from a proposed policy announced last
summer by the Ladies Professional Golf Association (LPGA)
to suspend players who do not speak English. The LPGA
later rescinded the proposal after objections from Senator
Yee and over 50 civil rights organizations.
In September of 2008, Senator Yee led an effort to oppose a
discriminatory policy by the LPGA which would have required
players on Tour to be proficient in English starting this
year. Despite there being no relevance to the sport , t he
LPGA claim ed that it was important for players to be able
to interact with American media and event sponsors .
Ironically, many of the sponsors are international
companies and a number of the tournaments are not held in
the United States. N o other professional sports league in
the United States has such a mandate.
Unless English is justified by a business necessity, no one
should be discriminated against simply for speaking their
language.
Under SB 242, it would be a violation of state law for an
entity to adopt or enforce a policy that requires, limits,
prohibits or restricts the use of any language in a
business establishment, unless the language restriction is
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justified by a business necessity and notification has been
provided of the circumstances and the time when the
language restriction is required and of the consequences.
A Controversial English Language Requirement By LPGA Last Year
Was The Latest In An Ongoing Series of Conflicts About The Use
of Languages Other Than English. As the author indicates, the
Ladies Professional Golf Association (LPGA) last year reportedly
planned to adopt a 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. The LPGA asserted
that it was important for players to be able to interact with
the American media and event sponsors. However, the LPGA
ultimately rescinded the proposal after the author, other
lawmakers, and numerous civil rights organizations raised
objections to the policy. Nevertheless, the controversy
highlighted the importance - both for businesses and for those
with whom they interact - of clarifying the extent to which
businesses should be allowed to impose language restrictions on
others.
Language changes, conflicts and accommodations are an enduring
feature of history, nowhere more commonly than in California
which entered the Union as a state with a tradition of multiple
languages, including a large number of Spanish-speaking citizens
and many Chinese laborers. Over the past 150-plus years, the
state's demographics and language usage have undergone periodic
changes, with English becoming the dominant language for much of
that period. Most recently, of course, a significant number of
immigrants have arrived speaking Spanish or one or more of many
Asian languages. Typically new arrivals take some time to learn
English, although children usually learn quickly and may even
lose the language of their parents. Some have reacted to the
presence of these new residents and their languages with dismay
or alarm, attempting to ban store signs that are not in English,
prohibit the use of non-English languages in the workplace or in
places of public accommodation, or ban bilingual education.
Language of course is intimately tied to national origin and
cultural identity, as many people inherently understand and
scholars have frequently documented. Even when an individual
learns English and becomes assimilated into American society,
his or her native language remains an important manifestation of
ethnic identity and a means of affirming links to the culture
and nation of origin. Language prohibitions therefore not only
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symbolize a rejection of the excluded language and the culture
it embodies, but also a denial of that side of an individual's
personality.
U.S. history is replete with language conflicts that attest, not
only to the crucial importance of language to its speakers, but
also to the widespread tactic of using language as a surrogate
for attacks on ethnic identity, such as laws prohibiting the use
of Native American languages, Asian languages, Spanish and
others. Other examples around the world include the repression
of Catalan and the Basque language in Spain under the
dictatorship of Francisco Franco, the repression of the
Ukrainian, Georgian and Belorussian languages by the former
Soviet government, the repression of the Albanian language in
Kosovo, and the extended repression of the Kurdish language in
Turkey.
This Bill Is Consistent With Existing Provisions Of The Fair
Employment and Housing Act (FEHA) And Other Laws. According to
the author and supporters, this bill proposes a balanced
approach to language usage rules - generally disfavoring such
rules because of their obvious effect on protected national
origin groups, but acknowledging that they may be justified by
business necessity in some circumstances, and should therefore
be permissible in those situations provided that, in the
interest of fairness, the people to whom the policy applies are
informed of the policy and the consequences for violation.
This is the same rule that has long been in effect for
employment policies under both state and federal law (Government
Code Section 12951; 29 C.F.R. 1606.7), and has proved to be a
rational and workable solution in the workplace, supporters
contend. 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.)
To be clear, however, this bill does not apply to the employment
relationship, and the author prudently proposes to amend the
bill to make this point explicit. Thus, the bill should not be
construed as requiring business establishments to hire
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multilingual employees, or alternatively prevent them from
hiring monolingual English speaking employees.
Moreover, in response to concerns from some business groups that
the bill could be misinterpreted to impose a new duty on
businesses to provide translation or interpreters for customers,
the author proposes to amend the bill to clarify that this is
not the intention. In addition, the proposed amendments clarify
that the bill is independent of and preserves any rights and
defenses there may be under any other law.
The Unruh Act itself prohibits arbitrary forms of discrimination
(Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142 (1991)),
including discrimination on the basis of national origin which,
as noted above, has long been recognized in various contexts to
include language as an essential characteristic. (E.g. 29 CFR
Part 1606 (nondiscrimination in employment).)
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 ignores the role of English as
the common language of California." (Cal. Const., Art. III,
section 6.)
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,
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private business communications, from being undertaken in
English, it does not appear to violate these provisions of the
Constitution.
ARGUMENTS IN OPPOSITION : Interpreting the bill as a regulation
of employment, ProEnglish writes in opposition: "SB 242 would
amend California's civil rights laws to impose a new duty on
California employers to accommodate their employee's choice of
language. As written, SB 242 violates the free speech rights of
employers and private citizens guaranteed by Article I of the
California Constitution and runs afoul of Article III, section 6
of the California Constitution - the provision making English
the official language of California." ProEnglish concludes,
"While civil rights statutes can effectively protect against
'immutable characteristic' discrimination (such as race,
ancestry, national origin and gender discrimination), the
language one chooses to speak in the workplace is not immutable
and should not have protected status."
Capitol Resource Family Impact similarly opposes the bill,
arguing in relevant part, "This legislation would make it
difficult for business owners to maintain any control over the
languages used in their companies. CRFI rejects the assumption
that requiring one language in the workplace is inherently
discriminatory. Further, private business owners have the right
to require paid employees to use languages that owners prefer
and understand."
The Committee also received a number of letters and emails from
individual expressing opposition to the measure, such as this
one:
I urge you to vote NO on SB 242 which says "unless English
is justified by a business necessity, no one should be
discriminated against simply for speaking THEIR language."
We Americans used to have a common language in English
where we were able to communicate with each other, not
anymore. I think bills like this are dividing us, rather
than uniting all who live here. In addition, this is a
frivolous bill which will simply waste money our state
doesn't have.
The California Chamber of Commerce has expressed concerns about
the bill as it currently appears in print, suggesting it "could
be interpreted to create an affirmative obligation on the part
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of all business owners to provide all services, signage,
customer help, and the like in multiple languages." It is the
author's hope and purpose that the proposed amendments address
this concern.
Author's Clarifying Amendments. To address opposition concerns
that the bill could be misconstrued to imply unintended
obligations and otherwise refine the language of the bill so
that it better responds to the controversial LPGA policy that
prompted, the author proposes to amend the bill as reflected in
the attached mockup.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
American Civil Liberties Union
Anti-Defamation League
California Federation of Teachers
California Immigrant Policy Center
California Nurses Association
Consumer Attorneys of California
Fil-Am Star
Japanese-American Citizens League - Pacific Region
Korean American Bar Association of Northern California
Korean American Coalition
National Association for the Advancement of Colored People
(NAACP), California Conference
San Francisco Japanese American Citizens League
Service Employees International Union (SEIU)
One individual
Opposition
California Chamber of Commerce
Capitol Resource Family Impact
Pro English
Several individuals
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334