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,  








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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 

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