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New California Fair Employment and Housing Council Regulations On National Origin Discrimination Take Effect

Published by and on August 17, 2018

The Fair Employment and Housing Council’s regulations provide further guidance on national origin discrimination in the employment context.

After receiving approval back in May 2018, revised regulations from the California Fair Employment and Housing Council (FEHC) on national origin discrimination took effect on July 1, 2018. The California Fair Employment and Housing Act prohibits employers from harassing and discriminating against applicants and employees because of certain protected bases, including national origin. The newly enacted regulations clarify and expand upon previous regulations from the FEHC. The revisions are also meant to bring the regulations more in line with California and federal law.

The regulations apply the same to undocumented applicants and employees as to all other employees and applicants. “National origin” is defined in the regulations as an individual’s 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 specify what types of conduct in the workplace constitute discrimination based on national origin. For example, enforcing a policy that limits or prohibits the use of any language in the workplace (like an English-only rule) is unlawful unless it is justified by business necessity, narrowly tailored and the employer provides notice of when the policy shall be enforced and the penalties for violating the policy. The regulations clarify that business convenience or customer and co-worker preference is not sufficient to establish business necessity.

Similarly, discrimination based on an applicant’s or employee’s English proficiency is unlawful unless English proficiency is justified by business necessity. Discrimination based on an applicant’s or employee’s accent or English proficiency is unlawful unless the accent materially interferes with the individual’s ability to perform job duties. The FEHC does clarify that employers may, however, request information from applicants or employees about their language abilities, if a business necessity exists.

Additionally, the FEHC advises in their regulations that height and weight requirements may have a disparate impact based on national origin and should be analyzed carefully. Furthermore, employers are prohibited from assigning or referring an applicant or employee to a certain position or geographical area based on national origin. Likewise, harassment on the basis of national origin is prohibited and can include deportation threats, derogatory comment, slurs, and mockery of accent or language.

Finally, the fact that retaliation is expressly prohibited because an individual has opposed national origin discrimination or harassment is probably not surprising to employers. But, the regulations further specify that threating to contact, or contacting, authorities about the immigration status of employees, applicants, or their family members, or taking adverse action because an employee updates personal information based on a name change, social security number, or government issued employment documents, is unlawful retaliation.

Welter Insight

Employers based in California or with employees in California should review these newly enacted regulations. While some acts in the workplace clearly constitute national origin discrimination, other actions that may be unlawful discrimination based on national origin are less obvious, such as implementing height and weight requirements or requiring a certain level of English proficiency. Employers should also note that individuals do not lose the protection of the law just because they are undocumented.

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