BILL ANALYSIS �
SB 111
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Date of Hearing: June 14, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 111 (Yee) - As Amended: March 14, 2011
As Proposed to be Amended
SENATE VOTE : 21-14
SUBJECT : Civil rights: language restrictions
KEY ISSUE : SHOULD LANGUAGE REQUIREMENTS AND RESTRICTIONS
IMPOSED BY BUSINESSES BE JUSTIFIED BY BUSINESS NECESSITY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill was prompted by the highly controversial decision by
the Ladies Professional Golf Association (LPGA) to require
players on the tour to be proficient in English or face
termination of their participation in the LPGA. The Association
initially asserted that this policy was essential for players to
be able to interact with the American media and event sponsors.
However, the author and many critics noted that many of the
tour's sponsors are international companies, a number of the
tournaments do not take place in the United States, and no other
professional sports association in the United States has a
similar requirement. The LPGA ultimately rescinded the proposal
after the author, other lawmakers, and numerous civil rights
organizations, raised objections. Nevertheless, the controversy
highlighted the importance - both for businesses and for those
with whom they interact - of clarifying the extent to which
businesses should be allowed to impose language restrictions on
others. This bill proposes a balanced approach, supporters
state - generally disfavoring such language rules, but
acknowledging that they may be justified by business necessity
in some circumstances and to that extent should be allowable
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, and according to
supporters has proved to be a rational and workable solution in
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the workplace. In response to concerns from some business
groups that the bill could be misinterpreted to impose a new
duty on businesses to provide translation or interpreters for
customers, the author proposes to amend the bill to clarify that
this is not the intent, as well as to clarify that the bill does
not apply to or change the rules regarding the employment
relationship. An earlier bill by the author was vetoed by
Governor Schwarzenegger, but the author believes that
refinements reflected in this measure should address business
concerns.
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 independent liability
for failure to undertake particular duties, and likewise that
the Act does not negate rights, duties, requirements or
remedies under any other law.
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 :
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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.
(Civil Code section 51.)
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. (Government Code sections 12900-12996.)
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 2009.
Despite there being no relevance to the sport, the LPGA
claimed 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. No 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 speaking their
language. SB 111 will rightfully add language to the list
of protected classes within California's civil rights act.
Under SB 111, it would be a violation of state law for an
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entity to adopt or enforce a policy that limits, prohibits
or restricts the use of any language in a business
establishment, unless the language restriction is justified
by a business necessity and notification has been provided
of the circumstances and the time when the language
restriction is required and of the consequences.
A business necessity would be defined as "an overriding
legitimate business purpose for which all of the following
are true: the language restriction is necessary to the safe
and efficient operation of the business; the language
restriction effectively fulfills the business purpose it is
supposed to serve; and an alternative practice to the
language restriction that would accomplish the business
purpose equally well with a lesser discriminatory impact
does not exist.
A Controversial English Language Requirement By LPGA Was The
Latest In An Ongoing Series of Conflicts About The Use of
Languages Other Than English. As the author indicates, the
Ladies Professional Golf Association (LPGA) in 2008 reportedly
planned to adopt a 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. The LPGA asserted
that it was important for players to be able to interact with
the American media and event sponsors. However, the LPGA
ultimately rescinded the proposal after the author, other
lawmakers, and numerous civil rights organizations raised
objections to the policy. Nevertheless, the controversy
highlighted the importance - both for businesses and for those
with whom they interact - of clarifying the extent to which
businesses should be allowed to impose language restrictions on
others.
Language changes, conflicts and accommodations are an enduring
feature of history, nowhere more commonly than in California
which entered the Union as a state with a tradition of multiple
languages, including a large number of Spanish-speaking citizens
and many Chinese laborers. Over the past 150-plus years, the
state's demographics and language usage have undergone periodic
changes, with English becoming the dominant language for much of
that period. Most recently, of course, a significant number of
immigrants have arrived speaking Spanish or one or more of many
Asian languages. Typically new arrivals take some time to learn
English, although children usually learn quickly and may even
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lose the language of their parents. Some have reacted to the
presence of these new residents and their languages with dismay
or alarm, attempting to ban store signs that are not in English,
prohibit the use of non-English languages in the workplace or in
places of public accommodation, or ban bilingual education.
Language of course is intimately tied to national origin and
cultural identity, as many people inherently understand and
scholars have frequently documented. Even when an individual
learns English and becomes assimilated into American society,
his or her native language remains an important manifestation of
ethnic identity and a means of affirming links to the culture
and nation of origin. Language prohibitions therefore not only
symbolize a rejection of the excluded language and the culture
it embodies, but also a denial of that side of an individual's
personality.
U.S. history is replete with language conflicts that attest, not
only to the crucial importance of language to its speakers, but
also to the widespread tactic of using language as a surrogate
for attacks on ethnic identity, such as laws prohibiting the use
of Native American languages, Asian languages, Spanish and
others. Other examples around the world include the repression
of Catalan and the Basque language in Spain under the
dictatorship of Francisco Franco, the repression of the
Ukrainian, Georgian and Belorussian languages by the former
Soviet government, the repression of the Albanian language in
Kosovo, and the extended repression of the Kurdish language in
Turkey.
This Bill Is Consistent With Existing Provisions Of The Fair
Employment and Housing Act (FEHA) And Other Laws. 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 (Government
Code Section 12951; 29 C.F.R. � 1606.7), and has proved to be a
rational and workable solution in the workplace, supporters
contend. Under the FEHA, it is an unlawful business practice
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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.
(Government Code Section 12951.)
To be clear, however, this bill does not apply to the employment
relationship, and the author prudently proposes to amend the
bill to make this point explicit. Thus, the bill should not be
construed as requiring business establishments to hire
multilingual employees, or alternatively prevent them from
hiring monolingual English speaking employees.
Moreover, in response to concerns from some business groups that
the bill could be misinterpreted to impose a new duty on
businesses to provide translation or interpreters for customers,
the author proposes to amend the bill to clarify that this is
not the intention. In addition, the proposed amendments clarify
that the bill is independent of and preserves any rights and
defenses there may be under any other law.
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).)
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
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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,
private business communications, from being undertaken in
English, it does not appear to violate these provisions of the
Constitution.
ARGUMENTS IN OPPOSITION : Prior to the proposed amendments, a
coalition of business groups opposed the bill. Their concerns,
which are believed to be addressed by the author's proposed
amendments, are set forth below:
The above-listed organizations respectfully oppose SB 111
(Yee), as amended March 14, 2011, which would make it a
violation under the Unruh Civil Rights Act for a business
establishment to require, limit, or prohibit the use of any
language, unless such requirement, limit or prohibition is
a business necessity.
Although we believe the bill is well-intentioned, we are
concerned with the unintended consequences that may result
from the vague and ambiguous language currently used in the
bill. For example, there is no definition as to what type
of "notice" must be provided and/or what types of actions
are considered "customer service." Accordingly, it is
unclear as to what obligations businesses have under SB
111, such as 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. Moreover, if a business
establishment fails to offer such written documentation in
multiple languages, SB 111 would shift the burden of proof
to the establishment to show that a business necessity
justified the omission. The costs associated with
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complying with such requirements and/or defending claims of
alleged discrimination would be significant for all
businesses.
Additionally, given that SB 111 creates a private right of
action for any alleged violation along with the
availability of minimum statutory damages of $ 4,000 under
Civil Code section 52, there is a significant chance that
this provision will be exposed as a new avenue for
meritless lawsuits to be filed for the sole purpose of
obtaining a quick settlement, similar to such cases
afflicting businesses with regard to disability access.
Although we recognize that not all disability access cases
filed under Civil Code section 51 et seq. are frivolous,
there are a significant number of repeat offenders who have
exposed the minimum damages allowed under Civil Code
section 52 as a way in which to pressure businesses into a
quick monetary settlement in order to avoid costly
litigation, without actually improving upon access for the
disabled. It is very likely that a similar result could
occur if SB 111 is implemented, thereby burdening
businesses in California that are already being unfairly
targeted. California is currently recognized as one of
the top ten most litigious states in the nation, which SB
111 will only further validate.
Author's Narrowing Amendments. To address opposition concerns
that the bill could be misconstrued to imply unintended
obligations, the author proposes to amend the bill by amending
subdivisions (a) and (c), deleting subdivision (e), and revising
subdivision (f) as follows:
(a)(2) Notification has been provided to persons subject to the
language restriction or requirement of the circumstances and the
time when the language restriction or requirement is required to
be observed and of the consequences for its violation.
(c) Nothing in This section shall be construed to does not
impose a an independent duty on any business establishment to
advertise, serve, contract or communicate with customers or
potential customers in a particular language. However, nothing
in this section shall be construed to alter, limit, or negate
application of any other duties, requirements, remedies or
rights, provided under Section 51 or any other law.
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(f) This section does not apply to employment and does not
expand, reduce, or otherwise affect the provisions of Section
12951 of the Government Code.
REGISTERED SUPPORT / OPPOSITION :
Support
Advancement Project
American Civil Liberties Union
Anti-Defamation League
Asian Americans for Civil Rights and Equality ( AACRE)
California Communities United Institute
California Federation of Teachers
California Immigration Policy Center
California Language Teachers Association
California Nurses Association
Coalition for Humane Immigrant Rights of Los Angeles
Consumer Attorneys of California
Equality California
Korean American Bar Association of Southern California
Legal Aid Society - Employment Law Center
San Francisco Korean American Chamber of Commerce
Mexican American Legal Defense and Education fund (MALDEF)
Opposition
California Chamber of Commerce
Apartment Association of Greater Los Angeles
Associated Builders and Contractors of California
Associated General Contractors
California Automotive Business Coalition
California Bankers Association
California Business Properties Association
California Framing Contractors Association
California Grocers Association
California Independent Grocers Association
California Manufacturers and Technology Association
California Retailers Association
Personal Insurance Federation of California
San Diego County Apartment Association
Santa Barbara Rental Property Association
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334