The Orange County Register reports that the California Senate passed a bill this week, sponsored by Leland Yee, D-San Francisco, to “protect California’s foreign language speakers” by making it illegal for the state’s businesses to require its employees to speak a specific language be spoken at the business unless it qualifies for a narrowly defined business necessity. [PDF]
Such discrimination is already prohibited against employees or renters under the California Fair Employment and Housing Act. Yee’s measure would extend the protection to customers and allow them to sue privately and receive minimum damages of $4,000 per violation.
Opponents complain that the proposed law would generate “meritless lawsuits to be filed for the sole purpose of obtaining a quick settlement.” They’re right.
Infractions of the Americans with Disabilities Act—such as uninsulated pipes under a bathroom sink or a bathroom mirror installed higher than required specifications, each carrying a $4,000 per violation price tag—have already set a destructive precedent.
Two years ago in Munson v. Del Taco, Inc., the California Supreme Court overturned an earlier 2006 decision in Gunther v. Lin that required a showing of intent discrimination in order to qualify for the minimum $4,000-per-infraction awards. In 1992, the California Legislature amended the Civil Code to make violations of the ADA also a violation of the Unruh Act, the state’s civil rights act. As the Santa Ana Court of Appeal noted, ADA violations are hyper-technical, and practically impossible not to violate at some point or another, which tends to explain why the ADA—unlike the Unruh Act—does not authorize private litigation. Gunther, then, reasonably extended this understanding to the interpretation of California’s law:
And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination.
. . . .
. . . . The alternative interpretation, as a number of federal courts have already indicated . . . , has led to unconscionable abuses.
Upon prevailing at the California Supreme Court, Gunther’s attorney, Marc Angelucci, stridently characterized the lower court’s ruling as “a results-driven, ass-backwards judicial activist decision from the start.”
Angelucci himself is famous in this area of the law. He’s the man who helped spur the end of "ladies night" drink specials in California by suing an establishment in Los Angeles. The courts agreed with Angelucci by noting that the Unruh Act prohibits businesses from discriminating on the basis of sex, race, color, religion, ancestry, national origin, language spoken, disability, medical condition, marital status or sexual orientation.
There are lots of lawyers like Angelucci who depend on laws like Yee’s to file strike suits against businesses. These laws create a cottage industry of unscrupulous attorneys who file thousands of shake-down suits each year, constituting a punitive and unjust tax on California’s businesses. By and large, these are small businesses who cannot afford the upwards of $100,000 to defend such suits.
In the case of Yee’s language discrimination law, small businesses would be put to the choice of settling with lawyers like Angelucci for $4,000 or a multiple thereof, or else go to the steep expense of a trial at which they would be forced to prove that all of the following are true:
(A) The language restriction or requirement is necessary for the
safe and efficient operation of the business.
(B) The language restriction or requirement effectively fulfills
the business purpose it is supposed to serve.
(C) An alternative practice to the language restriction or
requirement that would accomplish the business purpose equally
well with a lesser discriminatory impact does not exist.
To lawyers, the subjective language in boldface mean costly and hard-fought evidentiary battles, probably before a jury.
Yee’s bill is a bad idea for California.