English, the Language of Shakespeare…and Golf?

The Ladies Professional Golf Association (LPGA), perhaps subscribing to the theory that any publicity is good publicity, inflamed sensibilities this week when news leaked that it will soon require players to be able to hold a conversation in English. Some regard the policy as a protectionist reaction to the recent influx of non-English speaking Asian players to the game. Others deride the choice as a discriminatory move by an organization that has, until recently, touted its diversity as an international tour.

For its part, the LPGA contends that the new requirement is critical to addressing problems with marketing and sponsorship. The organization depends heavily on professional-amateur (Pro-Am) tournaments to fund its 62 million dollar budget. For that model to function, the LPGA needs stars capable of talking to the clients who spend thousands for the privilege of golfing with them, and capable of making victory speeches for media groups that pay to broadcast the events. Stories of players paying fifteen thousand dollars or more to play, and then exchanging only a few words with the pro during an entire 18 holes, while merely anecdotal, are evidence that there may be a very real need for reform. The question remains whether the LPGAs response to that need passes legal muster. Certainly, requiring players to be English speakers is discriminatory – but is it illegal discrimination?

On the Clock or in the Park?

There are two possible federal grounds for challenging the LPGAs new policy: Title II and Title VII of the Civil Rights Act of 1964. Together, these laws ensure that people are free from certain kinds of discrimination in public places and in their places of employment. Pundits have been quick to point to Title VII (which prohibits some forms of employment discrimination), but there are no clear grounds for such a case against the LPGA. The LPGA is a private 501(c)(6) non-profit organization, and its players are members, not employees. While the LPGAs golfers make their living playing in LPGA tours, the tour is not their employer. As a result, the LPGA has much greater latitude to enforce discriminatory membership requirements than any employer would. The Boy Scouts of America provides a similar example: as a private organization, the group maintains a legal policy of disallowing openly gay members.

A more likely avenue for challenging the LPGAs policy lies in Title II of the Civil Rights Act, which prohibits discrimination in public accommodations. The question then becomes a bit simpler: is the LPGA a place of public accommodation governed by Title II, or merely a private club that can do as it pleases?

Conveniently, the Supreme Court has already determined that professional golf tournaments are sites of public accommodation under the Americans with Disabilities Act (ADA), and similar logic can likely be applied to Title II cases. In PGA v. Martin, a recent case involving the Professional Golf Association, the Supreme Court addressed whether a handicapped golfer must be allowed to use a golf cart to drive the course in spite of PGAs rule that prohibits the use of carts. The Supreme Court determined that even though the PGA has an exclusive and tightly selected membership, those members are still part of the public – as are the public spectators who come to enjoy the event. As a result, the Court held that the PGA was subject to the requirements of the ADA.

Although Martin applied the ADA rather than the Civil Rights Act, there is little question that Title II governs both golf courses and the LPGA tour. In deciding Martin, the Supreme Court cited two District Court opinions. These opinions held that golf courses and private golf associations were subject to the requirements of the Civil Rights Act. The Supreme Court analogized the Civil Rights Act to the ADA, and noted that it equally applied. By this logic, the Civil Rights Act should apply to the LPGA as well.

The Natives Are Restless and Speaking English

Assuming Title II does apply to the LPGA, what does that law require? For the LPGA, the biggest hurdle is that the law expressly forbids discrimination on the basis of race, color, religion, or national origin in places of public accommodation. Since golf courses and the tournaments held there are likely public accommodations within Title II (according to dicta in the Martin decision), the LPGA may not discriminate on the basis of national origin at these events. While the LPGAs rule doesnt directly discriminate on the basis of national origin, opponents to the rule would have a strong argument that a language fluency requirement is little more than a backdoor attempt to discriminate on the basis of national origin.

In Lau et al. v. Nichols, the Supreme Court addressed the issue of language in schools receiving federal funding. In that case, Chinese-speaking students in San Francisco schools were not receiving adequate instruction in English and other subjects. The Supreme Court held in favor of the students, ruling that a failure to ensure the children had basic English skills constituted discrimination on the grounds of race, color, or national origin. While the Supreme Court in Lau was applying Title VI, the case illustrates that there is a legal connection between language and national origin.

Moreover, the manner in which the LPGA has created and issued this language requirement may make it easier for opponents to show intentional discrimination against non-English speaking players. By first publicizing the requirement at a mandatory meeting of the South Korean players, the LPGA leadership created the appearance that these new regulations are aimed squarely at Asian players who have been dominating the tour in recent years. While there are more than 120 international players from several different countries, the manner in which the LPGA seems to have directed the regulation toward the South Korean players could be used to demonstrate a discriminatory intent. The point: if an LPGA player were to sue under Title II to prevent enforcement of the policy, the LPGA would have to demonstrate that it does not in fact treat its players differently based on their country of origin despite some evidence to the contrary.

If anything about this dispute is clear, it is the potential for future problems to emerge. As at least one commentator has pointed out, what happens if the next big star of the LPGA is deaf or mute? Will mastery of American Sign Language or lip-reading be enough? And what if an English-speaking player gives a bad interview or gives their client the cold shoulder during a Pro-Am tournament? What if foreign players are willing to hire a translator for the duration of the event? If the purpose of this rule is to improve client-player interactions, how does the LPGA justify punishing one set of players but not the others? Or will they face suspension as well?

At this point, the LPGA has two choices: back down and rely on normal market pressures to encourage foreign players to learn English, or stick to their guns and endure a long period of litigation in courts. Much like the PGAs attempt to prevent Casey Martin from using a golf cart, the LPGA will likely be hit with a preliminary injunction preventing them from suspending any players until litigation is complete. In the meantime, the initial backlash from this decision may actually drive sponsors away rather than bring them in. For the time being, the future of this rule depends largely on how much of that backlash the LPGA is prepared to weather.

Update:  In an unsurprising twist, the LPGA has backed down from their policy.