On July 1, 2018, new regulations will go into effect under California’s Fair Employment and Housing Act (FEHA) that are designed to prevent discrimination based on an employee’s national origin. National origin discrimination is already illegal in California, but these new regulations expand on those existing prohibitions, and protect both employees and applicants, including undocumented employees and applicants.
The new regulations define “national origin” broadly to include an individual’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.
Under the new regulations, language restriction policies (e.g., English-only policies) are illegal unless the employer can show that the language restriction is (1) based on a business necessity, (2) the language restriction is narrowly tailored, and (3) the employer has notified its employees of the circumstances and time when the language restriction is required to be observed. Language restrictions that are merely convenient or due to customer or co-worker preference are not considered to be based on a “business necessity.” Keep in mind that English-only policies are always prohibited during non-working times, such as when employees are on meal or rest breaks.
Similarly, an employer cannot require that an employee or applicant have a certain level of English proficiency unless the employer’s English proficiency requirement is justified by business necessity (i.e., the level of proficiency required by the employer is necessary to effectively fulfill the job duties of the position). The regulations clarify that it is not unlawful for an employer to ask an applicant or employee about his or her ability to speak, read, write or understand any language, including languages other than English, if doing so is justified by business necessity.
The new regulations provide that discrimination based on an applicant’s or employee’s accent is unlawful national origin discrimination.
The new regulations apply to undocumented applicants and employees to the same extent as any other applicant or employee. Immigration status is irrelevant when determining liability in any proceeding brought to enforce FEHA. Questions about an applicant’s or employee’s immigration status is prohibited unless there is clear and convincing evidence that the inquiry was necessary to comply with federal immigration law. It is also unlawful for an employer to discriminate against an applicant or employee because of his or her immigration status, unless there is clear and convincing evidence that the conduct was required to comply with federal immigration law.
If you have any questions about compliance with the new national origin discrimination prevention regulations, please do not hesitate to contact a labor and employment law attorney at Schneiders & Associates for assistance.