The California Fair Employment and Housing Council has published an amended Regulation on national origin discrimination, which will take effect on July 1, 2018. In addition to defining "national origin" and providing standards for certain employment practices, the Regulation now expressly applies to undocumented applicants and employees.
Expanded Definition of National Origin
The Regulation now provides a definition of "national origin" that includes the following categories:
English Only Rules
The old Regulation, made an employer's English only policy presumptively lawful, provided the employer showed that the policy was justified by a business necessity, and gave sufficient notice of the circumstances in which the policy would be enforced and the consequences of violating the policy.
The amendment significantly limits an employer's ability to institute language restrictions in the workplace. Now a policy restricting the use of any language in the workplace is presumptively unlawful. The presumption can be defeated only if the employer shows that it is justified by a business necessity, employees were given sufficient notice of the policy, and the policy is narrowly tailored.
"Business necessity" is now defined as an overriding legitimate business purpose such that it is necessary to the safe and efficient operation of the business. The employer must show that the language restriction fulfills the business purpose and that there is no equally effective, less discriminatory, alternative. Notably, "convenience" and "customer and co-worker preference" are not sufficient to constitute a business necessity. An employer cannot, regardless of business necessity, regulate the language of its employees during "non-work time" such as breaks, lunch, or unpaid employer-sponsored events.
Characteristics and Circumstances that Might Be Associated with National Origin
In addition to the language restrictions discussed above (and the prohibition effective in 2016 on discrimination based on holding a driver's license issued under Vehicle Code § 12801.9), additional practices are now prohibited or limited by the Regulation if they negatively impact persons based on national origin. The employer must be prepared to prove the business necessity and the lack of an alternative, less discriminatory means of accomplishing the business purpose. These practices include:
Finally, the Regulation prohibits, without exception, the following based on a person's national origin: