The Fair Employment and Housing Council’s new regulations regarding national origin discrimination have taken effect on July 1, 2018. The regulations augment the existing Fair Employment and Housing Act regulations with clarification on numerous concepts, including the definition of “national origin” and issues related to language, height/weight characteristics, immigration status, and more.
Definition of national origin
Under the regulations, “national origin” is very broadly defined to include 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.
The regulations state that an employer may have a rule requiring that employees speak only in English at certain times, so long as the employer can show that the rule is justified by business necessity, the restriction is narrowly tailored, and the employer has effectively notified its employees of the circumstances and time when speaking only in English is required and of the consequences of violating the rule. For purposes of this rule, “business necessity” means an overriding legitimate business purpose, such that: (A) The language restriction is necessary to the safe and efficient operation of the business; (B) The language restriction effectively fulfills the business purpose it is supposed to serve; and (C) There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. As such, it is not sufficient that the employer’s language restriction merely promotes business convenience or is due to customer or co-worker preference. Moreover, English-only rules are never lawful during an employee’s non-work time, e.g., breaks, lunch, unpaid employer-sponsored events, etc.
English proficiency and accents
Employment discrimination based on an applicant’s or employee’s accent is unlawful unless the employer proves that the individual’s accent interferes materially with the applicant’s or employee’s ability to perform the job in question. In addition, discrimination based on an applicant’s or employee’s English proficiency is unlawful unless the English proficiency requirement at issue 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.) In determining business necessity in this context, relevant factors include, but are not limited to: the type of proficiency required (e.g., spoken, written, aural, and/or reading comprehension), the degree of proficiency required, and the nature and job duties of the position. However, it is not unlawful for an employer to request from an applicant or employee information regarding his or her ability to speak, read, write, or understand any language, including languages other than English, if justified by business necessity.
All of the provisions of the FEHA and these regulations apply to and protect undocumented applicants and employees to the same extent that they apply to any other applicant or employee, and discovery or other inquiry into an applicant’s or employee’s immigration status shall not be permitted unless the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law. Moreover, It unlawful practice to discriminate against an employee because of the employee’s or applicant’s immigration status, except as required to comply with federal immigration law. These regulations supplement existing regulations that address when an employer can require an applicant/employee to hold a drivers’ license, stating that a driver’s license requirement may be evidence of national origin discrimination of such policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., possessing a driver’s license is not needed in order to perform an essential function of the job).
These expansive regulations also address human trafficking, stating that it is an unlawful employment practice for an employer or other covered entity to 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 height and/or weight requirements are not common as job criteria, these regulations also address this practice. Specifically, where an adverse impact based on national origin is established from height and/or weight requirements (e.g., more applicants/employees from a certain national origin are excluded due to the criteria than from other national origins), such requirements are unlawful, unless the employer can demonstrate that they are job related and justified by business necessity. Where such a requirement is job related and justified by business necessity, it is still unlawful if the applicant or employee can prove that the purpose of the requirement can be achieved as effectively through less discriminatory means.
The broad scope of these regulations underscore the DFEH’s focus on national origin status, and with the current surge of immigration-related topics in the media, this focus is not likely to end soon. It is imperative that managers/supervisors and hiring personnel are trained on these topics and that employers adopt policies/practices consistent with the requirements of these regulations, including strong anti-retaliation policies.