An amended regulation on national origin discrimination published by the California Fair Employment and Housing Council takes effect on July 1, 2018. The regulation strengthens the protections afforded to applicants and employees on the basis of national origin. The amendment expands the definition of national origin, redefines “Business Necessity” and enumerates standards for employment practices.
National origin was originally defined to encompass only “the individual’s or ancestors’ actual or perceived place of birth or geographic origin, national origin group or ethnicity.” The new definition includes:
- physical, cultural, or linguistic characteristics associated with a national origin; marriage to or association with, persons of a national origin group;
- tribal affiliation;
- membership with an association or organization identified with or seeking to promote 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
- names that are associated with a national origin group.
So, the amendment expands the definition of “national origin” and then prohibits or severely limits employment practices that negatively impact persons based upon their national origin. If an employer is charged with any limited employment practices, that employer must demonstrate a “business necessity.”
“Business necessity” is defined as an overriding legitimate business purpose necessary for the safe and efficient operation of the business. To demonstrate a practice is a business necessity, the employer must prove there is no equally effective, less discriminatory, alternative. “Convenience” or “customer and co-worker preference” is not enough.
Limited Employment Practices
Language and Related Restrictions
Prior to the amendment “work time” English Only rules were presumptively lawful. The amendment significantly restricts an employer’s ability to enforce such rules by shifting the burden. Now English only policies are presumptively unlawful. An employer can defeat that presumption only by demonstrating that the policy is justified by a business necessity, employees were given sufficient notice, and the policy is narrowly tailored.
Similarly, unless the employer can show they are justified by a business necessity and could not be achieved through less discriminatory means, the following practices are now unlawful when they negatively impact a person based upon national origin:
- decisions based on a person’s accent or proficiency in reading/writing English;
- restrictions based on height and weight; and
- diversion of people to certain positions, facilities, or geographic regions.
Prohibited Employment Practices
In addition to those restricted practices the regulations prohibit, without exception:
- language restrictions during non-work time;
- citizenship requirements as a pretext for discrimination;
- retaliation, including threatening to contact immigration authorities or law enforcement concerning immigration status and taking adverse action against an employee who is attempting to update personal information such as their name, social security number or government-issued employment documents;
- human trafficking; and
Finally, inquiries into a person’s immigration status are permitted only when they are required by Federal immigration law.
Bottom Line for California Employers
Because FEHA’s prohibitions apply regardless of immigration status, an applicant or employee can bring a discrimination charge whether they are documented or not. Employers should review their immigration-related policies, refrain from an inquiry into an applicant’s or employee’s immigration status unless necessary to comply with federal law, inspect applications and interview questions for compliance with the expanded protections, and ensure that any English-only practices, if any, are essential to the company’s business.
If you have a question about workplace diversity and would like to consult one of our attorneys, please feel free to Contact Novare Law Group.