BILL ANALYSIS
SB 242
Page 1
SENATE THIRD READING
SB 242 (Yee)
As Amended July 14, 2009
Majority vote
SENATE VOTE :21-15
JUDICIARY 7-2
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|Ayes:|Feuer, Brownley, Evans, | | |
| |Jones, Krekorian, Lieu, | | |
| |Monning | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight, Silva | | |
| | | | |
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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,
SB 242
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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
business establishments from discriminating on the basis of,
race, ancestry, national origin, and other characteristics.
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.
FISCAL EFFECT : None
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
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speaking their language.
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, 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.
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)].
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0001892