New California Regulations Provide Guidance on National Origin Discrimination

New regulations issued by the California Fair Employment and Housing Council addressing the subject of national origin discrimination took effect on July 1, 2018.

These regulations:

• Provide definitions for the terms "national origin" and "national origin group;"
• Clarify permissible and prohibited types of employer policies governing English proficiency, accent and language spoken in the workplace; clarify permissible and prohibited inquiries regarding immigration status; and
• Detail prohibited forms of harassment based on national origin.

The new regulations are expansive, and define "national origin" to include an individual's or an ancestor's actual or perceived:

• 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
• Name that is associated with a national origin group.

"National origin group" is defined to include "ethnic groups, geographic places of origin, and countries that are not presently in existence."

In addition, the regulations provide concrete examples of the kinds of policies and practices that constitute national origin discrimination, including the following:

• Policies that limit or prohibit the use of any language in the workplace, such as English-only policies, unless the policy is justified by business necessity and is narrowly tailored.
• Discrimination based on an applicant's or an employee's accent unless the employer can show that the accent materially interferes with the ability to perform the job.
• Discrimination based on an applicant's or an employee's English proficiency unless the English proficiency requirement at issue is justified by business necessity.
• Discrimination based on immigration status unless it can be shown that the employer is required to engage in such discrimination in order to comply with federal law.
• Height and/or weight requirements where such requirements have an adverse impact on a national origin group, unless the employer shows that the requirements are job related and justified by business necessity.
• Recruitment and job segregation practices that seek, request or refer applicants or employees based on national origin, or that assign employees to positions, facilities or geographical areas of employment based on national origin.

While the new FEHC regulations are similar to the Enforcement Guidance on National Origin Discrimination issued by the U.S. Equal Employment Opportunity Commission in November, 2016, they provide additional protection to applicants and employees in several respects. For example, the California regulations:

• Prohibit discovery or other inquiries into an applicant's or employee's immigration status unless the person seeking discovery or making the inquiry can show by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law;
• Apply to undocumented applicants and employees to the same extent they apply to any other applicant or employee; and
• Clarify that an applicant's or employee's immigration status is irrelevant during the liability phase of any proceeding brought to enforce the Fair Employment and Housing Act ("FEHA").

Implications for Employers

Although the regulations do not dramatically differ from the existing EEOC Enforcement Guidance, they provide additional details as to what constitutes unlawful conduct, and expose employers to claims of national origin discrimination under FEHA. Because FEHA provides remedies that go beyond those afforded under federal anti-discrimination laws, and given the current heightened awareness around issues of national origin and immigration, California employers are strongly encouraged to review the regulations, and to take appropriate measures to ensure that their policies, procedures and practices are in conformity with the new state law requirements.

The following steps should be considered:

• Training of managers and supervisors to make sure they understand the kinds of behaviors that could expose the company to claims of national origin discrimination, especially those around English-only requirements and employee accents. For example, managers need to understand that making comments about an applicant's or employee's accent could lead to national origin discrimination claims.
• Training of recruiters and Human Resources personnel to make sure they understand the requirements of the new regulations.
• Review existing application forms, training materials, employee handbooks and policies, and revise as necessary to ensure they adequately reflect the requirements of the national origin discrimination regulations.
• Consult with experienced California employment counsel as to any particular issues the new regulations might raise with respect to existing company operations.