BILL ANALYSIS
AB 781
Page 1
Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 781 (Jeffries) - As Amended: April 13, 2009
PROPOSED CONSENT (As Proposed To Be Amended)
SUBJECT : BILINGUAL SERVICES: NONDISCRIMINATION
KEY ISSUE : SHOULD THE BILINGUAL SERVICES LAW BE CLARIFIED
REGARDING ITS RELATIONSHIP TO EMPLOYMENT DISCRIMINATION LAW?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill addresses concerns regarding the implementation of an
existing state law requiring that both state and local
governments make public services equally available to persons
who are not yet proficient in English. The author and sponsor,
California NAACP, believe it would be helpful to clarify that
this requirement is not to be used as a pretext for unlawful
employment discrimination. Supporters also believe the bill is
needed to ensure that steps taken by state and local governments
to implement the law be appropriately transparent. The bill
therefore provides that the public is to have full access under
the law to all relevant information regarding implementation
activities.
SUMMARY : Clarifies bilingual services obligations regarding
nondiscrimination and public information. Specifically, this
bill:
1)Provides that no state or local agency shall impose or
implement an action or decision pursuant to this chapter as
pretext for discrimination on the basis of race, national
origin or other unlawful discrimination in employment,
including specifically any requirement that an employee be
bilingual.
2)Specifies that all information and reports required by the
Dymally-Alatorre Bilingual Services Act (DABSA) shall be
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public information unless otherwise restricted by law.
EXISTING LAW :
1)Provides pursuant to the state Fair Employment and Housing Act
(FEHA) that it shall be an unlawful employment practice,
unless based upon a bona fide occupational qualification for
an employer, because of the race, color, national origin
(including language) or ancestry, of any person, to refuse to
hire or employ the person or to refuse to select the person
for a training program leading to employment, or to bar or to
discharge the person from employment or from a training
program leading to employment, or to discriminate against the
person in compensation or in terms, conditions, or privileges
of employment. (Government Code section 12940.)
2)Provides pursuant to FEHA that it is an unlawful employment
practice for an employer to adopt or enforce a policy that
limits or prohibits the use of any language in any workplace,
unless both of the following conditions exist: (1) The
language restriction 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.)
3)Provides pursuant to federal law that no person shall on the
ground of race, color, or national origin (including language)
be excluded from participation in, denied the benefits of, or
subjected to discrimination under any public or private
program or activity receiving federal financial assistance,
including conduct that has a disproportionate effect on
persons of limited English proficiency. (42 U.S.C. section
2000(d).) State law is to the same effect with respect to
governmental programs and activities, as well as private
programs that receive state funds. (Government Code section
11135.)
4)Generally provides pursuant to DABSA, that every state agency
directly involved in the furnishing of information or the
rendering of services to the public whereby contact is made
with a substantial number of non-English-speaking people, to
employ a sufficient number of qualified bilingual persons in
public contact positions to ensure provision of information
and services to the public, in the language of the
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non-English-speaking person. (Government Code section 7292.)
5)Likewise requires every local public agency serving a
substantial number of non-English-speaking people to employ a
sufficient number of qualified bilingual persons in public
contact positions or as interpreters to assist those in such
positions, to ensure provision of information and services in
the language of the non-English-speaking person. (Government
Code Section 7293.)
6)Provides that an employee of a state or local agency may not
be dismissed to carry out the purposes of the DABSA and that
state and local public agencies need only implement the Act by
filling employee public contact positions made vacant by
retirement or normal attrition. (Government Code Section
7294.)
7)Provides that specified assessments, surveys, plans and
reports are to be produced with respect to the obligations
under the DABSA. (Government Code sections 7299.4-.6.)
COMMENTS : The author and sponsor note that federal and state
policies express both an obligation to make government services
accessible for English learners, and an obligation to abide by
longstanding equal employment opportunity laws. AB 781 is
intended to reinforce the principles underlying these policies
by making clear that state and locals governmental entities
shall not unlawfully discriminate against an employee or an
applicant for employment under the guise of the bilingual
services law. The bill further clarifies that information
produced pursuant to the bilingual services law is to be fully
accessible to the public.
Specifically, the bill commands that governmental entities may
not use the obligations under DABSA as a pretext for unlawful
discrimination in employment in hiring, promotion, wages or
other decisions (just as they may not use employment
nondiscrimination laws as false justification for failing to
comply with their obligations under DABSA). This specifically
includes but is not limited to any requirement regarding whether
an employee should be bilingual, as well as the decision whether
to utilize an interpreter, or other DABSA obligation. Thus, for
example, the bill makes clear that it is prohibited for a
governmental employer to assert DABSA as a cover-up for unlawful
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discrimination on the basis of race when the real reason is
racial animus against African Americans. Of course, nothing in
the bill is intended to weaken or discourage compliance with
obligations under the bilingual services law or others, or to
imply that appropriate efforts to comply with these obligations
are suspicious or subject to greater scrutiny when challenged by
an English-speaking employee than a limited English proficient
resident seeking access to governmental services.
The bill similarly underscores the need for accountability in
the acts taken pursuant to DABSA by clarifying that information
required by the law is to be fully accessible to the public
unless restricted from disclosure, such as with sensitive
personnel records.
Author's Amendments . The author appropriately proposes
amendments to the Government Code, replacing the current
contents of the bill, as follows:
7294.1 No state or local agency shall impose or implement an
action or decision pursuant to this chapter as pretext for
discrimination on the basis of race, national origin or other
unlawful discrimination in employment, including specifically
any requirement that an employee be bilingual. An action or
decision taken for the purpose of fulfilling the requirements of
this chapter shall not be considered a pretext for
discrimination.
7299.7 All information and reports required by this chapter
shall be public information unless otherwise restricted by law.
REGISTERED SUPPORT / OPPOSITION :
Support (as proposed to be amended)
None on file
Opposition (as proposed to be amended)
None on file
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334