BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 111 (Yee)
As Amended March 14, 2011
Hearing Date: March 29, 2011
Fiscal: No
Urgency: No
EDO:rm
SUBJECT
Civil Rights:Language Restrictions
DESCRIPTION
This bill would make it a violation of the Unruh Civil Rights
Act to adopt or enforce a policy that limits or prohibits the
use of any language in a business establishment, unless the
language is justified by a 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.
BACKGROUND
In 2008, the Ladies Professional Golf Association (LPGA)
announced a proposed 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 or face a membership
suspension. The LPGA asserted that it was important for players
to be able to interact with the American media and event
sponsors even though many of the tour's sponsors are
international companies, and a number of the tournaments do not
take place in the United States. Notably, no other professional
sports team in the United States has a similar requirement. The
LPGA ultimately rescinded the proposal after the author of this
bill, and other lawmakers, along with numerous civil rights
organizations, raised objections to the policy.
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation, and services
(more)
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provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
evolved to include other characteristics such as medical
condition and marital status and to generally reflect the
state's public policy against discrimination in all forms.
Although the FEHA currently contains provisions that prohibit
employers from enacting policies that restrict the use of any
language among their employees, there is nothing in current law
that generally prohibits business establishments from placing
such restrictions on patrons or, in the case of the LPGA tour,
participants/competitors. This bill seeks to further enhance
protections in the Unruh Civil Rights Act in order to prevent
the implementation of language restriction policies in the
future.
This bill is substantially similar to SB 242 (Yee, 2009) which
was vetoed by the Governor due to concerns that it would
increase frivolous lawsuits. (See Comment 5 for the veto
message.)
CHANGES TO EXISTING LAW
Existing law , the Unruh Civil Rights Act, generally prohibits
business establishments from discriminating on the basis of sex,
race, color, religion, ancestry, national origin, disability, or
medical condition, and provides civil remedies for violations of
its provisions. (Civ. Code Sec. 51 et seq.)
Existing law , the California Fair Employment Housing Act,
provides that it is an unlawful employment practice for an
employer to adopt or enforce a policy that prohibits 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. (Gov. Code Secs. 12900-12996.)
This bill would make it a violation of the Unruh Civil Rights
Act to adopt or enforce a policy that limits or prohibits the
use of any language in a business establishment, unless the
language is justified by a 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.
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This bill would define "business necessity" 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.
This definition of "business necessity" is consistent with the
one codified in the FEHA.
This bill would provide for an award of damages, and attorney's
fees as may be determined by the court, for a violation of its
provisions.
This bill would provide that no provision of this bill shall be
construed to require a business establishment to provide
customer service in a particular language unless otherwise
required by law.
This bill would provide that any prohibitions and defenses in
this bill are in addition to any other prohibitions and defenses
of any other section of law.
This bill would permit the rights and remedies provided by this
bill to be enforced independently of any other rights and
remedies.
This bill would in no way alter the provisions of Government
Code Section 12951 which relate to the employment relationship
between a business establishment and its employees.
COMMENT
1.Stated need for the bill
According to the author:
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.
Unless English is justified by a business necessity, no one
should be discriminated against simply for speaking their
language. SB 111 will rightfully add language to the list of
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protected classes within California's civil rights act.
The Consumer Attorneys of California support this measure
writing that it "is consistent with the principles of the Unruh
Civil Rights Act, since language is often associated with a
person's national origin. Arbitrary bans on foreign languages
could easily be used to mask intentional discrimination on the
basis of national origin."
Also in support, the American Civil Liberties Union (ACLU)
writes that "this legislation makes it explicit that a business
establishment that requires or prohibits the use of any language
violates the Unruh Civil Rights Act. It is our view that under
the language of the Act and existing case law, business
establishments have been prohibited from engaging in this
discriminatory behavior . . . this bill makes it clear."
2.This bill is consistent with existing provisions of the FEHA
and with the intent of the Unruh Civil Rights Act
The FEHA is the principal California statute prohibiting
employment discrimination covering employers, labor
organizations, employment agencies, apprenticeship programs, and
any person or entity, who aids, abets, incites, compels, or
coerces the doing of a discriminatory act. It prohibits
employment discrimination based on race or color; religion;
national origin or ancestry; physical disability; mental
disability or medical condition; marital status; sex or sexual
orientation; age, with respect to persons over the age of 40;
and pregnancy, childbirth, or related medical conditions. The
FEHA also prohibits retaliation for opposing any practice
forbidden by the FEHA or for filing a complaint, testifying, or
assisting in proceedings under the FEHA.
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.
(Gov. Code Sec. 12951.) These provisions were added to the FEHA
by AB 800 (Wesson, Chapter 295, Statutes of 2001) with the goal
of enhancing protection against discrimination based on national
origin. Language, in many cases, is closely tied to an
individual's national origin, and arbitrary bans on foreign
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languages could easily be used to mask intentional
discrimination on the basis of national origin.
The Unruh Civil Rights Act (the Act) specifically outlaws
discrimination in housing and public accommodations based on
sex, race, color, religion, ancestry, national origin,
disability, or medical condition. (Civ. Code Sec. 51.) The Act
is essentially meant to cover all arbitrary and intentional
discrimination by a business establishment on the basis of
personal characteristics to those listed above. This bill seeks
to add provisions to the Unruh Civil Rights Act similar to those
in the FEHA, and further enhance protections against
discrimination. Specifically, the bill would prohibit a person
or entity from adopting or enforcing a policy that limits or
prohibits the use of any language in a business establishment.
Thus, policies such as those proposed by the LPGA would be
prohibited, unless the policy is justified by a business
necessity.
This bill would not require business establishments to hire
multilingual employees, or alternatively prevent them from
hiring monolingual English speaking employees. Rather, it
simply would prohibit unnecessary restrictions on the use of any
language in business establishments. Further, business
establishments who, as a general matter, utilize best practices
in complying with the FEHA are unlikely to currently have
policies that arbitrarily restrict the use of any language.
Therefore, this bill, in practice, would seemingly not place
additional burdens on business establishments that do not
already exist under the FEHA.
As previously stated, language is often tied to an individual's
national origin, and policies restricting language usage can be
used as a mask for intentional discrimination. Public policy is
arguably best served by prohibiting restriction on the usage of
any language in business establishments unless the restriction
is otherwise justified.
3.This bill would provide for the same remedies as those
currently available for violations of the Unruh Civil Rights
Act
Section 52 of the Civil Code contains the civil remedies
available for specified violations of the Unruh Civil Rights
Act. Subdivision (a) provides that a person who violates
provisions that prohibit discrimination in business
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establishments is liable for actual damages, treble damages, and
attorney's fees.
This bill would provide that in an action pursuant to its
provisions, remedies shall be awarded as provided in subdivision
(a) of Section 52 of the Civil Code. Thus, the remedies for
violations of the bill would be the same as those currently
available for violations of existing provisions of the Unruh
Civil Rights Act which prohibit discrimination in business
establishments.
In addition, this bill would provide that nothing in the bill
shall be construed to limit application of any other remedies or
rights provided under the law. Accordingly, any existing
protections which may exist under state law with respect to
discrimination on the basis of an individual's native language,
national origin, etc. would not be altered or eroded.
4.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,
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private business communications, from being undertaken in
English, it does not appear to violate these provisions of the
Constitution.
5.Opposition's concerns
The California Chamber of Commerce, the Associated Builders and
Contractors of California, the California Automotive Business
Coalition, the California Business Properties Association, the
California Framing Contractors Association, the California
Grocers Association, and the California Retailers Association
raise concern that SB 111 would have unintended consequences for
businesses due to the "vague and ambiguous language" in the
bill. The opposition believes that it is unclear what
obligations businesses will have under this bill, specifically
"whether businesses will be required to (1) provide written
notice in all recognized languages to all customers regarding
any required language used in the establishment; or (2) ensure
that all menus, signage, and services offered in the
establishment are provided in all recognized languages." The
opposition also notes concern that since SB 111 creates a
private right of action,
meritless lawsuits will be filed "for the sole purpose of
obtaining a quick settlement."
It should be noted that the opposition expressed similar
concerns to SB 242 (Yee, 2009), specifically that the bill would
impose new duties on employers by requiring businesses to
provide services in multiple languages. An amendment was made
to SB 242 addressing that concern by adding language that said
that this bill should not be construed so as to impose a duty on
businesses to provide customer service in a particular language.
That language was also incorporated into this bill.
6.SB 242 veto message
The current version of this bill is nearly identical to the
enrolled version of SB 242. In vetoing SB 242, the Governor
stated:
While no one should be treated differently based on their
race or
national origin, no single business can accommodate every
language
spoken in California. Unfortunately, under this measure,
any
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business that treats customers differently because the
business may
not be able to effectively communicate with the customer
could then
be required to justify such disparate treatment in a court
of law. Since this measure would have the unintended
effect of increasing frivolous lawsuits against
businesses, I am unable to sign this bill.
Support : ACLU; Anti-Defamation League; Advancement Project;
California Communities United Institute; California Federation
of Teachers, AFT, AFL-CIO; California Nurses Association;
Consumer Attorneys of California
Opposition : Associated Builders and Contractors of California;
California Automotive Business Coalition; California Business
Properties Association; CalChamber; Capitol Resource Family
Impact; California Framing Contractors Association; California
Grocers Association; California Retailers Association
HISTORY
Source : Author
Related Pending Legislation :
AB 887 (Atkins) would amend the Unruh Civil Rights Act to add
gender identity and gender expression under the definition of
"sex" and would define these new terms. This bill has been
referred to the Assembly Judiciary Committee.
SB 559 (Padilla) would add genetic information to the list of
characteristics outlined in the Unruh Civil Rights Act. This
bill has been referred to the Senate Judiciary Committee.
Prior Legislation :
AB 800 (Chapter 295, Statutes of 2001) (See Comment 2.)
SB 242 (Yee, 2009) (See Background and Comment 6.)
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