- 11 Jul 2018
Firm: FordHarrison LLP
The California Fair Employment and Housing Council published new regulations on 17 May 2018 relating to discrimination on grounds of national origin. The regulations will take effect on 1 July 2018 and will be codified in the California Code of Regulations (sections 11027 and 11028).
The regulations expand the scope of the current discrimination provisions of California’s Fair Employment and Housing Act (FEHA) that are specific to national origin by extending the definition of ‘national origin’ (which includes the individual’s or their ancestors’ actual or perceived national origin) to include the following six categories:
- 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 organisation 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;
- 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 recognised by other states in the international community.
Moreover, the regulations state that unless there is a business necessity, the following is prohibited.
Policies that limit or prohibit the use of any language, including, but not limited to an English-only rule.
For almost the last 20 years, employers were expressly permitted to ‘have a rule requiring that employees speak only English at certain times.’ However, the new regulations state that unless an employer can demonstrate a business necessity ‘any language’ restrictions are presumed unlawful. In addition to a business necessity, an employer with a policy limiting or prohibiting any language must demonstrate that the restriction is narrowly tailored and must notify employees of the circumstances and time when the language restriction must be observed, in addition to notifying the employees of the consequences for the violation. Employers may never enforce an English-only policy during non-work time (meal and rest breaks and unpaid employee-sponsored work events).
An employer cannot discriminate against a person based on their level of English proficiency unless proficiency is required to effectively fulfill the employee’s job duties. Relevant factors include the type and degree of proficiency and the nature and job duties of the position. Based on whether there is a business necessity, it is not unlawful for an employer to inquire about proficiency from an employee.
Similarly, an employer cannot discriminate against a person because of his or her accent unless the employer can show that the accent ‘interferes materially’ with the employee’s ability to do his or her specific job.
The regulations go further in detailing when an employer’s policy constitutes a business necessity. To show this, an employer must establish that:
- the policy is necessary to the safe and efficient operation of the business;
- it ‘effectively fulfills the business purpose it is supposed to serve’; and
- ‘there is no alternative practice to the language restriction that would serve the business purpose.’
Arguing business convenience will not establish a business purpose for such policy.
Similarly, the regulations prohibit discrimination against employees due to their immigration status unless the employer shows ‘clear and convincing’ evidence that its actions were necessary to comply with federal immigration laws. For example, all California employers must still ensure proper completion of Form I-9 (verifying identity and authorisation to work) for each individual they hire and may not hire individuals who cannot demonstrate their identity and employment authorisation.
Other Miscellaneous provisions
The regulations also include a number of other provisions.
Height and weight restrictions by employers
These will be unlawful if they disproportionately affect members of one national origin group unless the employer can show business necessity.
‘Derogatory comments, slurs, or non-verbal conduct based on national origin, including, but not limited to, threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language or its speakers may constitute harassment if the actions are severe or pervasive.’ The regulations specifically note that ‘a single unwelcomed act of harassment may be sufficiently severe to create an unlawful hostile work environment.’
Employers should carefully modify all policies to specifically address the expanded definition of national origin discrimination, including actual or perceived discrimination. Employers should also update all policies relating to any language limitations or restrictions and expressly provide that they will never have any limitations or restrictions relating to language use during non-work times. Additionally, employers should ensure that any inquiries into an individual’s work authorisation are limited to those necessary to comply with federal law.