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 The LPGA ultimately rescinded the proposal after the author, other lawmakers, and numerous civil rights organizations, raised objections.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 SB 242 Page 2 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 SB 242 Page 3 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 SB 242 Page 4 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 SB 242 Page 5 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 SB 242 Page 6 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, SB 242 Page 7 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 SB 242 Page 8 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