January 7, 2019

Effective July 1, 2018, California’s Fair Employment and Housing Act (FEHA) was amended to strengthen the protections afforded to employees and applicants (including undocumented persons) on the basis of national origin.  The new regulations add section 11027.1 to Title 2 of the California Code of Regulations, and amend section 11028.

“National origin” was previously defined as “the individual’s or ancestor’s actual or perceived place of birth or geographic origin, national origin group or ethnicity.” Under the new regulations, the definition of “national origin” is significantly broadened, to include an individual’s or ancestor’s actual or perceived physical, cultural, or linguistic characteristics associated with a national origin group; marriage to or association with persons of a national origin group; tribal affiliation; membership in or association with an organization identified with or seeking to promote the interests of a national origin group; attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and name that is associated with a national origin group.  “National origin groups” include ethnic groups, geographic places of origin, and countries that are not presently in existence.

The new regulations also significantly expand what constitutes discrimination based on national origin.

Language Restriction Policies:
While the FEHA already had rules limiting an employer’s ability to adopt or enforce a policy limiting the use of any language in the workplace, the new regulations place much greater restrictions on language restriction policies.  Under the new regulations, an employer cannot have a policy limiting or prohibiting the use of any language in the workplace (including, but not limited to, an “English-only” rule) unless the restriction is justified by business necessity, it is narrowly tailored, and employees have been effectively notified of the circumstances and time when the restriction is required to be observed and the consequences for violating the language restriction.  “Business necessity” means an overriding legitimate business purpose, such that the language restriction is necessary to the safe and efficient operation of the business, it effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice that would accomplish the business purpose equally well with a lesser discriminatory impact.  Merely promoting business convenience, or customer/co-worker preference, is not sufficient to constitute “business necessity.”

Indeed, “English-only” rules are presumptively unlawful, unless the employer can satisfy the three-prong test by proving the policy is justified by business necessity, is narrowly tailored, and was effectively explained to employees.  Further, English-only rules are never lawful during an employee’s non-work time, such as breaks or lunch.  The Fair Employment and Housing Council has commented that an employer’s attempt to restrict language use during non-work hours may involve sufficient employer “control” over that time so as to make it compensable.

Discrimination Based on Accent:
Employment discrimination based on an employee or applicant’s accent is unlawful unless the employer can show that the individual’s accent materially interferes with the ability to perform the job in question.

Discrimination Based on English Proficiency:
Discrimination based on an employee or applicant’s English proficiency is unlawful unless the English proficiency requirement is justified by business necessity.  In determining business necessity in this context, relevant factors include the type of proficiency required (e.g., spoken, written, and/or reading comprehension), the degree of proficiency required, and the nature and job duties of the position.  It is not unlawful for an employer to request information regarding an employee or applicant’s ability to speak, read, write, or understand any language (including languages other than English) if justified by business necessity.

Height and Weight Requirements:
Height and/or weight requirements may have the effect of creating a disparate impact on the basis of national origin, and where such an adverse impact is established, such requirements are unlawful, unless the employer can show they are job-related and justified by business necessity.  However, even if the employer can show these things, these height and/or weight requirements are unlawful if the employee or applicant can prove the purpose of the requirement can be achieved as effectively through less discriminatory means.

Recruitment and Job Segregation:
It is unlawful to recruit employees or applicants based on national origin, or assign positions, facilities, or geographical areas of employment based on national origin.

Immigration-Related Practices:
An employer cannot make inquiries into an employee or applicant’s immigration status unless the employer can show by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law.  It is also unlawful for an employer to discriminate against an employee because of the employee’s immigration status, unless the employer can show by clear and convincing evidence that it is required to do so to comply with federal immigration law.  The regulations make it clear that these provisions apply equally to undocumented employees and applicants.

The regulations also clarify that it is unlawful for an employer to retaliate against any individual because the individual has opposed discrimination or harassment based on national origin, or otherwise participated in a proceeding in which national origin discrimination or harassment has been alleged.  Such unlawful retaliation includes threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of an employee, former employee, applicant, or a family member of an employee, former employee, or applicant, or taking adverse action against an employee because the employee updates or attempts to update personal information based on a change of name, social security number, or government-issued employment documents.

The regulations describe various conduct that could be considered harassment on the basis of national origin, including the use of epithets, derogatory comments, slurs, threats of deportation, derogatory comments about immigration status, mockery of an accent or language or its speakers, or even non-verbal conduct (e.g., gestures), if the actions are severe or pervasive such that they alter the conditions of employment and create an abusive working environment.

What Can Employers Do?
Employers should review their equal employment opportunity policies to ensure they comply with the new regulations.  Employers should also review any language restriction policies, immigration-related policies, and any height and weight requirements, to ensure compliance.  Managers and supervisors should be well-versed on the requirements of these regulations so they understand what practices are acceptable and what practices run afoul of the law.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.