8.9.18

Effective July 1, new regulations (available here and here) expanded the scope of the national origin discrimination provisions of the California Fair Employment and Housing Act. The changes are expected to have a significant impact on California employers with large immigrant workforces, including restaurants and hotels, and the tech and healthcare industries.

California’s ethnic diversity is often a strength, economically and culturally. No single ethnic group forms a majority of the state's population, making the state a “minority-majority” state. However, managing that diversity can be a challenge for employers. The new FEHA regulations attempt to clarify some of the areas in which employers are likely to have difficulty.

National origin discrimination

California law already prohibits discrimination on the basis of “national origin,” but the new regulations expand the definition of this protected category to include the following:

  • 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.

The regulations also clarify that “national origin group” includes any ethnic groups, geographic places of origin, and countries that are not presently in existence. This may include micro-nations, which claim to be independent nations, or states that are not recognized in the international community.

Regulations prohibiting discrimination, harassment, and retaliation operate with this expanded definition of national origin.

Language restriction policies

In addition, the new regulations address language restriction policies, including “English-only” policies. Language restriction policies in California are allowed only under very narrow circumstances: when (1) the language restriction is justified as a “business necessity,” (2) the language restriction is narrowly tailored, and (3) the employer has told employees about how and when the language restriction applies and what happens to employees who violate it.

The regulations define “business necessity” very narrowly, making it difficult for a California employer to justify a language restriction. An employer must establish that the policy (1) is necessary for the safe and efficient operation of the business, (2) effectively fulfills the business purpose it is supposed to serve, and (3) has no alternative that could serve the same business purpose. Moreover, a language restriction policy cannot be enacted for business convenience or based on the preferences of customers or co-workers. It also cannot apply during employees’ non-working time, including lunch breaks, rest periods, and unpaid employer-sponsored events.

In summary, language restriction policies are unlikely to be justified based on “business necessity,” which means that few language restriction policies will comply with California law.

English proficiency and accents

Discrimination on the basis of an accent may qualify as national origin discrimination, unless the accent materially interferes with the employee’s ability to perform the job in question. In addition, an employer cannot discriminate against a person based on his or her level of English proficiency unless English proficiency is required to effectively fulfill the employee’s job duties. Relevant factors include the type and degree of proficiency and the nature and duties of the position. An employer may, however, ask applicants or employees about their ability to speak, read, write, or understand any language, provided that doing so is justified by a business necessity.

If, as an example, a California retailer decided to remove employees with Spanish or Chinese accents from positions requiring contact with customers, that would probably violate the FEHA and the new regulations, even if the retailer acted out of concerns about customer preference or discomfort.

Miscellaneous provisions

  • Recruitment and Job Segregation: It is unlawful for an employer to seek, request, or refer applicants or employees based on national origin. It is also unlawful to assign employees to positions, facilities, or geographical areas based on national origin, unless pursuant to a permissible defense.
  • Height and Weight Requirements: These could create a disparate impact on the basis of national origin. When disparate impact is established, these types of restrictions will be unlawful, unless the employer can demonstrate that they are job-related and justified by business necessity, and that there is no less discriminatory means of achieving the same goal.
  • Human trafficking: An employer may not “use force, fraud, or coercion to compel the employment of” or subject to adverse treatment, applicants or employees on the basis of national origin. Although “human trafficking” is usually cited in connection with coerced sexual activities, the concept of using “force or coercion to compel employment” could exist in industries such agriculture, manufacturing, garment, and food processing.

Best practices for employers

  • Review your EEO policies. Employers should make sure that their equal employment opportunity policies expressly prohibit harassment and discrimination based on national origin, using the DFEH’s expanded definition.
  • Review language restriction policies and “English Only” practices. Employers should consider whether such restrictions meet the requirements imposed by the new regulations, such as “business necessity,” and consider alternatives that might achieve the same goals in compliance with the regulations.
  • Seek guidance from hiring and diversity professionals on cultural, linguistic, and ethnic differences among employees. For example, one should not assume that everyone who speaks Spanish or “looks Asian” shares common experiences. Each nation (or micro-nation) has its own unique culture and political background. Ethnic stereotyping should obviously be avoided in all work-related contexts, including hiring, promotions, training, assignments, and social events.
  • Update training materials. Ensure that managers and supervisors get adequate training about national origin issues – especially “English-only” rules, discrimination based on accents, ethnic stereotyping, and participation in employee affinity groups. This could be included as part of a company’s harassment training, or its diversity training.

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