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  The LPGA ultimately rescinded the proposal after  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