Hunton Employment & Labor Perspectives

New regulations addressing national origin discrimination under California’s Fair Employment and Housing Act (FEHA) go into effect on July 1, 2018 – are you ready?  The regulations expand the definition of “national origin,” make language restrictions presumptively unlawful, and limit an employer’s ability to verify immigration status, among other significant changes.

Expanded Definition Of National Origin

Under the new regulations, “national origin” means an individual’s or individual’s ancestors’ actual or perceived (1) physical, cultural, or linguistic characteristics associated with a national origin group; (2) marriage to or association with persons of a national origin group; (3) tribal affiliation; (4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group; (5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and (6) name that is associated with a national origin group.

The regulations further clarify that the term “national origin groups” includes “ethnic groups, geographic places of origin, and countries that are not presently in existence.”

Language Restrictions and Related Discrimination

Under the regulations, all language restrictions are now presumed unlawful – a change from the prior regulations.  In addition to showing that language restrictions are justified by business necessity, employers must now also demonstrate that such restrictions are narrowly-tailored.  That the language restriction “promotes business convenience” or is due to customer or co-worker preference is not sufficient to meet the heightened standard.  In order for a policy to be a “business necessity,” an employer must now demonstrate that the policy is necessary to the safe and efficient operation of the business and effectively fulfill the business purpose it is supposed to serve.  Employers also must demonstrate there is no effective alternative to the restriction.  The regulations clarify that English-only rules are never lawful during an employee’s non-work time, including breaks, lunch, and unpaid employer-sponsored events.

Additionally, discrimination based on an applicant or employee’s accent is unlawful under the regulations unless it “interferes materially” with the individual’s ability to do his or her specific job.  Employers also may not discriminate based on an applicant or employee’s level of English proficiency unless they can demonstrate that English proficiency is necessary for the individual’s particular job duties.

Height and Weight Requirements

The new regulations prohibit height and weight restrictions where such restrictions create an adverse impact based on national origin, unless the employer can demonstrate the requirements are job related and justified by business necessity.  Even 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.

Immigration-Related Practices

Lastly, the new regulations limit practices for verifying work eligibility. Employers may not make any inquiry into an applicant’s immigration status, including requiring documentation, unless the employer can show by clear and convincing evidence that such inquiry is required by federal law. Employers also cannot take adverse action against an employee for updating his or her name, social security number or employment documents. Moreover, threatening to contact immigration or federal law enforcement authorities may be a form of harassment and/or retaliation under the new regulations.