BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 781 (Jeffries)
As Amended January 21, 2010
Hearing Date: June 22, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Bilingual Services
DESCRIPTION
This bill, sponsored by the California NAACP, would provide that
no state or local agency shall impose or implement an action or
decision pursuant to the Dymally-Alatorre Bilingual Services Act
as a 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. This bill would further provide that all information
and reports required by the Dymally-Alatorre Bilingual Services
Act shall be public information unless otherwise restricted by
law.
BACKGROUND
The Dymally-Alatorre Bilingual Services Act (Act) was enacted in
1973 to provide for effective communication between the state's
residents and state, county, and municipal
governments. (Chapter 1035, Section 8, Statutes of 1997.) The
Act is intended to ensure that individuals who do not speak or
write English are not prevented from using
public services because of language barriers. In passing the
Act, the Legislature was responding to concerns that a
substantial portion of California's population could not
effectively communicate with government at the state and local
level because they spoke a different language. Because public
agencies were frequently unable to communicate with individuals
requiring these services, non-English-speaking individuals were
effectively being denied rights and benefits to which they were
(more)
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entitled. Accordingly, the Act required state and local
agencies to ensure that they provide information and services in
the various languages of their constituents.
This bill seeks to clarify that employment actions taken
pursuant to the Act may not be used as a pretext for unlawful
discrimination.
CHANGES TO EXISTING LAW
Existing law , the Dymally-Alatorre Bilingual Services Act,
requires every state agency, except as specified, that is
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. (Gov. Code Sec. 7292.)
Existing law 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. (Gov. Code
Sec. 7293.)
Existing law requires that any materials explaining services
available to the public be translated into any non-English
language spoken by a substantial number of the public served by
the agency. (Gov. Code Sec. 7295.)
Existing law requires each state agency to conduct an assessment
and develop an implementation plan that complies with the
requirements of the Act. (Gov. Code Sec. 7299.4.)
Existing law provides 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. (Gov. Code Sec. 12940.)
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This bill would provide that no state or local agency shall
impose or implement an action or decision pursuant to this
chapter as a 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.
This bill would specify that all information and reports
required by the Act shall be public information unless otherwise
restricted by law.
COMMENT
1. Stated need for the bill
According to the author, while the Dymally-Alatorre Bilingual
Services Act appropriately provides for access to government
services to Limited English Proficiency residents, it fails to
ensure that local and state government hiring practices do not
have a disparate impact on equal employment opportunities, or
subject job applicants to discrimination based on race, color,
religion, sex, or national origin. The author points to an
ordinance adopted by the City of Oakland which required the City
to hire "a sufficient number of bilingual employees in public
contact positions so as to adequately serve members of the
substantial number of limited-English-speaking persons group(s)
in the City." (Equal Access Ordinance, O.M.C. 2.30.) The
author and sponsor have expressed concerns that this ordinance,
as well as state law, does not sufficiently emphasize the
obligation to abide by longstanding equal employment opportunity
laws.
2.Balancing public policies providing for public services and
prohibiting discrimination
As previously noted, the author has indicated that the Equal
Access Ordinance adopted by the City of Oakland ordinance is
problematic in that it potentially undermines equal employment
opportunities for monolingual English speakers. Committee staff
notes that the author has not provided any published studies or
reports demonstrating that hiring practices pursuant to the
Bilingual Services Act have had a disparate impact on any
specific groups of the population. In contrast, the City of
Oakland adopted the Equal Access Ordinance after a report was
released by the State Auditor concluding that state and local
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governments could be doing more to address the need for
bilingual services. (Dymally-Alatorre Bilingual Services Act:
State and Local Governments Could Do More to Address Their
Clients' Needs for Bilingual Services, California State Auditor,
November 1999.) Despite its ordinance, Oakland has still been
sued by community groups for allegedly failing to fulfill its
obligations under its Equal Access Ordinance. In filing the
lawsuit, the community groups cited examples of residents who
were unable to access services because of language barriers,
such as a non-English speaking Cantonese couple who were robbed
at gunpoint and unable to get assistance from 9-1-1. Thus, it
appears that, despite the requirements of state law, the
provision of bilingual services has not always kept up with the
state's increasingly diverse population.
Nonetheless, the provision of bilingual services should never be
used as a pretext for employment practices that have expressly
been declared to be unlawful by both state and federal law.
Accordingly, this bill would provide that no state or local
agency shall impose or implement an action pursuant to the
Dymally-Alatorre Bilingual Services Act as a pretext for
unlawful discrimination in employment, including any requirement
that an employee be bilingual. In order to ensure that state or
local efforts to comply with the Act are not hindered, this bill
would further provide that an action or decision taken for the
purpose of fulfilling the requirements of the Act shall not be
considered a pretext for discrimination.
It should be noted that this bill does not equate the hiring of
a bilingual employee to be unlawful discrimination. Rather, it
specifically provides that a bilingual requirement for a job
position may not be used to hide otherwise unlawful
discrimination, such as, racial animus.
3. Required reports shall be public information
Under current law, state agencies must conduct an assessment and
develop and update an implementation plan for the provision of
bilingual services pursuant to the Act. This includes the
requirement that state agencies conduct a survey of their local
offices every two years to determine all specified information,
including: (1) the number of public contact positions in each
field office; (2) the number of bilingual employees in public
contact positions and the other languages they speak; (3) the
number of people served by each office who do not speak English,
identified by the specific language they speak, and each
language's percentage of the total; (4) the number of
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anticipated vacancies in public contact positions for the coming
year; and (5) whether contracted telephone-based interpreters
are used to serve any language needs of the agency's clients.
(Gov. Code Sec. 7299.4.)
State agencies are required to submit implementation plans to
the State Personnel Board, which must review each plan, and, if
it determines that the plan fails to address the identified
deficiencies, order the agency to supplement or make changes to
its plan. (Id.) A state agency that has been determined to be
deficient shall report to the State Personnel Board every six
months on its progress in addressing the identified
deficiencies. (Id.) The State Personnel Board is also required
to review the results of the surveys and implementation plans
required by the Act, compile data, and provide a report to the
Legislature every two years, identifying significant problems or
deficiencies and proposing solutions where warranted. (Gov.
Code Sec. 7299.6.)
This bill would clarify that the information and reports
required under the Act are public information, unless otherwise
restricted by law. This provision underscores the need for
accountability in the actions taken by state or local agencies
in complying with the Act, while at the same time ensuring that
otherwise confidential information, such as personnel records,
are not disclosed.
4. Suggested amendment
In order to better clarify the intent of this bill, committee
staff recommends the following technical amendment:
Suggested amendment
On page 2, lines 6-7, strike "including any requirement that
an employee be bilingual"
On page 2, line 4, after "chapter," insert "including any
requirement that an employee be bilingual"
5. Opposition
In opposition, the City of Oakland writes:
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The City of Oakland has made it a priority to establish a form
of government that is truly inclusive of all its residents and
is committed to the delivery of effective, courteous and
responsive services. A substantial number of persons who live
and work in Oakland are unable to communicate effectively in
English because their primary language is not English; in
fact, there are over 125 languages and dialects spoken in
Oakland. It is of paramount importance that all residents
regardless of their ability or proficiencies in English have
access to City programs, support, and services.
On May 8, 2001, the City of Oakland became the first city in
the nation to pass an Equal Access to Service ordinance with
the purpose of removing language barriers for limited English
speakers attempting to access City services. City of Oakland
departments are required to provide language access for
residents who are limited English speaking through
availability of bilingual staff and translated written
outreach materials. ?
While we agree that local agencies should not engage in any
form of discrimination in employment, our concern is that your
bill, if passed, could potentially deter local governments
from requiring bilingual skills and would negatively impact
our residents by preventing them from accessing essential city
services.
Support : None Known
Opposition : City of Oakland
HISTORY
Source : California NAACP
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 68, Noes 0)
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