CA Employers Must Comply With New National Origin Discrimination Regulations

  • Jul 12 2018

As of July 1, 2018, California’s rules prohibiting harassment and discrimination based upon one’s protected classes, including national origin, have gotten stricter. Under the Fair Employment and Housing Act (FEHA), “Regulations Regarding National Origin Discrimination” will strengthen protections afforded to applicants and employees based upon their national origin. This includes those who are undocumented.

The Expansion of “National” Origin

Under the new rules, the regulations have expanded the definition of “national” origin to include an individual’s or an individual’s ancestors’ “actual or perceived”:

  1. Physical, cultural or linguistic characteristics associated with a national origin group.
  2. Marriage to or association with persons of a national origin group.
  3. Tribal affiliation.
  4. Membership in or association with an organization identified with or seeking to promote interests of a national origin group.
  5. Attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group.
  6. Name that is associated with a national origin group.

The new regulations also provide that one’s “national origin group” includes any ethnic groups, geographic places of origin, and countries that are not presently in existence.

The Prohibition of Certain Employment Acts

Additionally, these laws expand the “Specific Employment Practices” which are prohibited under the Fair Employment and Housing Act:

  1. Language restriction policies, including English-only policies (unless the policy is justified by a “business necessity.” This has been narrowly defined as an “overriding legitimate business purpose” such that:
    1. The restriction is necessary to the safe and efficient operation of the business;
    2. The restriction effectively fulfills the business purpose it is supposed to serve; and
    3. There is no alterative to the restriction that would serve the business purpose as well, with a less discriminatory impact.

Additionally, English-only rules are always unlawful during an employee’s nin-work time.

  1. Discrimination based on an applicant’s or employee’s accent, unless the employer can show the accent “interferes materially” with the applicant’s or employee’s ability to perform his or her job
  2. Discrimination based on an employee’s level of English proficiency, unless the employer can show that an English proficiency requirement is justified by business necessity.
  3. Height and weight requirements (as such may have a disparate impact on the basis of national origin), unless the employer can show that the requirement is job related and justified by business necessity and that the purpose of the requirement cannot be met by less discriminatory means.
  4. Recruitment, or assignment of positions/facilities/geographic areas, based on national origin.
  5. Inquiring into an applicant’s or employee’s immigration status, or discriminating/retaliating against an applicant or employee based on their immigration status, unless the employer can show by clear and convincing evidence that they are required to do so under federal immigration law.

How Employers Can Protect Themselves

There are quite a few things that employers can do to ensure that they are within the requirements of these new laws. Such preventative measures include:

  1. Reviewing employment verification practices
  2. Carefully considering whether English-Only rules or language restrctions are narrowly tailored and necessary for each position.
  3. Reviewing any height and weight requirements in place to determine whether they are justified by business necessity under FEHA.
  4. Updating employee handbooks and training materials to ensure an understanding of associational and perception-based harassment and discrimination based on national origin.

Posted in: Employment Based Immigration

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