“National Origin” Receives Expanded Definition Under Fair Employment and Housing Act

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:

• 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
• names that are associated with a national origin group.

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:

• employment-related decisions based on an applicant’s or employee’s accent or proficiency in reading/writing English;
• inquiry into a person’s immigration status unless necessary to comply with federal immigration law;
• mandatory height/weight policies; and
• diversion of applicants or employees to certain positions, facilities, or geographical areas.

Finally, the Regulation prohibits, without exception, the following based on a person’s national origin:

• citizenship requirements that are a pretext for discrimination;
• retaliation, including threatening to contact immigration authorities or law enforcement about immigration status and taking adverse action against an employee attempting to update personal information such as name, social security number or government-issued employment documents;
• human trafficking; and
• harassment.