Discriminating against job applicants or employees based on national origin has long been unlawful under both federal and California law. The term “national origin” is not limited to one’s country of birth. But what other characteristics are included within the term? Is language use covered? How about accents? Does the legal protection extend to an employee’s immigration status? How about the immigration status of the employee’s spouse?
In 2016, the U.S. Equal Employment Opportunity Commission issued a publication, entitled EEOC Enforcement Guidance on National Origin Discrimination that provides guidance to employers in interpreting federal law. Now, the California Fair Employment and Housing Council (“FEHC”) has issued proposed regulations that would go substantially further than the EEOC in defining the concept of national origin. These regulations have not yet been finalized. However, they are expected to go into effect by the end of 2017. Here is a summary of the new regulatory guidance.
Expanding the Definition of “National Origin”
California’s Fair Employment and Housing Act (“FEHA”) prohibits workplace discrimination on the basis of “national origin,” but does not fully define the term. The proposed regulations would define national origin to include “the individual’s or ancestor’s actual or perceived place of birth or geographic origin, national origin group or ethnicity.” Thus, applicants and employees would be protected from workplace discrimination not only on the basis of actual national origin, but on mistaken assumptions.
Under the proposed regulations, individuals are also protected from discrimination based on the actual or perceived national origin of the individual’s spouse, child, or anyone else with whom the individual associates. Individuals similarly would be protected from discrimination based on their decision to affiliate with a particular organization or religious institution associated with a national origin group. Tribal affiliations also would be specifically included.
The proposed regulations would also considerably tighten existing limitations in California on an employer’s right to insist that employees speak English in the workplace. Existing regulations permit an employer to enforce an English-only policy at certain times if the employer can demonstrate a business necessity for the policy, and the employer notifies employees about the policy.
The new regulations begin with the proposition that English-only restrictions are never lawful during rest breaks, meal periods, and other non-work time. The proposed regulations also make clear that language restrictions are disfavored during work time. Such language restrictions are only lawful if narrowly tailored and based on business necessity. The regulations define “business necessity” as being based on the safe and efficient operation of the business where there is no alternative practice that would achieve the business purpose equally well. Business convenience or customer preference is insufficient to establish business necessity. As before, employers would be required to notify employees of when language restrictions are in effect, and the consequence for violating the restrictions.
The proposed regulations make clear that national origin protections extend to an individual’s spoken accent. An employer may take an adverse action against an employee or applicant based on the individual’s accent only if the employer can establish that the accent materially interferes with the individual’s ability to do the job.
Similarly, the proposed regulations prohibit employers from discriminating against individuals based on their English proficiency. Employers may impose English proficiency standards, but only if the employer can establish that such proficiency is necessary for the position and the standard is narrowly tailored.
The regulations would prohibit employers from discriminating against employees or applicants because they trained or were educated outside the United States. This might prohibit an employer from refusing to accept a degree from a foreign university, for example. The regulations are applicable in reverse as well, prohibiting an employer from insisting that an individual be foreign trained.
FEHA’s anti-discrimination protections are applicable to undocumented workers. Further, employers would be prohibited from asking an employee or applicant about immigration status, or taking an action on that basis, unless the employer can show by “clear and convincing evidence” that doing so was required by federal immigration law. These regulations, for example, will not interfere with employers’ compliance with Form I-9 requirements.
Prohibited acts of retaliation include an employer threatening to contact, or contacting, immigration authorities about the immigration status of an employee, former employee, or applicant, or one of their family members.
Height and Weight Requirements
The most unusual aspect of the new regulations is a prohibition on an employer imposing height or weight requirements on applicants or employees unless it can establish a business necessity for doing so. The FEHC suggests that “there are height and weight characteristics associated with particular national origin groups that create disparate impacts on the basis of various national origins.” The proposed regulations impose a blanket prohibition, and do not suggest that aggrieved individuals would need to establish that their height or weight is tied to their national origin.
Tips for Employers
The FEHC accepted public comments on the proposed regulations through July 17, 2017. It is possible that the regulations might be revised or delayed. However, California employers should consider whether any of their current policies might be impacted by the proposed regulations. As always, it is vital that employers remain proactive in preparing for legislative and regulatory changes.