WORKPLACE LAW – New Regulations Regarding National Origin Discrimination

Question: My business employs people from diverse backgrounds and cultures. I heard California has a new law about national origin discrimination. What do I need to know about this?

Answer: Although California’s Fair Employment and Housing Act (FEHA) already sets forth strict rules prohibiting harassment, discrimination, and retaliation against applicants and employees based on protected classes, including national origin, regulations amending the FEHA were recently enacted expanding national origin protections. These regulations, which are effective July 1, 2018, protect undocumented applicants and employees to the same extent that they protect any other applicant or employee.

The regulations require that employers refrain from intentional discrimination and harassment based on national origin, and from policies and practices that disparately impact applicants and employees based on national origin, that cannot be justified by business necessity and/or for which a less discriminatory alternative could accomplish the business purpose equally well.

The regulations broadly define “national origin” to include an individual’s or ancestors’ actual or perceived:
• Place of birth or geographic origin, national origin, or ethnicity;
• Physical, cultural or linguistic characteristics of a national origin group;
• Marriage to or association with persons of a national origin group;
• Parental relationship with a person 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 institutions generally used by persons of a national origin group;
• Name that is associated with a national origin group;
• Language and/or accent.
The regulations enumerate policies or practices that may constitute unlawful national origin discrimination:
• Language restriction policies unless the restriction is justified by business necessity, narrowly tailored, and the employer has notified employees of the restriction and the consequences for violating it. English-only policies are never permitted during non-work time, such as meal and rest breaks. Customer or co-worker preference is not considered business necessity.
• Accent based discrimination unless the employer can show the accent materially interferes with the applicant’s or employee’s ability to do the job.
• English proficiency discrimination unless the employer can show that the proficiency requirement is necessary for effective performance of the position, i.e., the employer may require language proficiency necessary to fulfill job duties.
• Height and weight requirements where these characteristics are associated with national origin. In that case, the employer must show that the requirements are job related and consistent with business necessity, and that the purpose of the requirement cannot be met by less discriminatory means.
• Recruitment and job segregation based on national origin, i.e., recruiting, and assigning positions, facilities or geographical areas of employment based on national origin.
• Immigration-Related practices such as inquiries about an applicant’s or employee’s immigration status except to comply with federal law.
• Driver’s licenses requirements unless possession of a driver’s license is required by law or by the employer for a legitimate business reason such as when driving is a job duty.
• Human trafficking involving employers using force, fraud, or coercion to compel employment on the basis of national origin.
Employers should review their written policies and workplace practices to be certain they comply with these new regulations. The new regulations can be viewed on line at: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/05/FinalTextRegNationalOriginDiscrimination.pdf