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 ----------------------------------------------------------------- |Ayes:|Feuer, Brownley, Evans, | | | | |Jones, Krekorian, Lieu, | | | | |Monning | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Knight, Silva | | | | | | | | ----------------------------------------------------------------- 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 Page 2 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 SB 242 Page 3 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