California’s Fair Employment and Housing Council (“FEHC”) adopted new regulations focused on preventing national origin discrimination, which into effect July 1, 2018. These new regulations are extensive and include clarifications on the definitions of “national origin” and “national origin groups,” the permissible and prohibited 1) types of employer policies governing language restrictions (i.e., English only policies) in the workplace, 2) types of inquiries regarding immigration status, and 3) types of height and weight requirements for work. The regulations protect both applicants and employees, including individuals who are undocumented.
The new definition of “national origin” includes, but is not limited to, the individual’s or ancestors’ 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 groups” is defined to include ethnic groups, geographic places of origin, and countries that are not presently in existence.
“Undocumented applicant or employee” means an applicant or employee who lacks legal authorization under federal law to be present and/or to work in the United States. The term “undocumented worker” means an employee or job applicant who lacks legal authorization under federal law to work in the United States.
The new regulations add a third requirement for employers with language use restrictions by requiring employers to show the restriction is “narrowly tailored.” Therefore, English-only rules or limitations or prohibitions involving the use of any language in the workplace likely will be an unlawful employment practice unless employers can demonstrate:
- The policy is job-related and consistent with business necessity;
- The policy is narrowly tailored; and,
- The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequences for violating the language restriction.
Establishing “business necessity” is a common requirement for employer policies both in language use restrictions and other areas of the employment relationship. Under these new national origin regulations, “business necessity” means an overriding legitimate business purpose, such that:
- The policy is necessary to the safe and efficient operation of the business;
- The policy effectively fulfills the business purpose it is supposed to serve; and,
- There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.
A language restriction that “merely promotes business convenience or is due to customer or co-worker preference” will not pass the test.
Potential Wage and Hour Consequences
English-only rules are not lawful during an employee’s non-work time, such as breaks, lunch, unpaid employer-sponsored events, etc. The Fair Employment and Housing Council commented that an employer’s attempt to restrict language use during non-working hours also may involve sufficient “control” over the time to make it compensable. This means an employer may owe employees compensation as “work time” for exercising “control” over the language the employee speaks during lawfully required rest and meal periods.
Accent and English Proficiency
Employers cannot base employment decisions based on an applicant or employee’s accent unless the employer proves the accent interferes materially with the individual’s ability to perform the job in question.
Likewise, an individual’s English proficiency is unlawful unless the English proficiency requirement at issue is necessary for the effective performance of the specific position for which it is imposed, and the type and degree of proficiency required is tailored to the requirements of the position in question.
Foreign Training and Experience
An employer generally cannot deny employment opportunities to individuals because the individual received training or education outside the United States, nor can an employer require an individual to be foreign trained.
California laws are seemingly more favorable for undocumented individuals when compared to the federal government’s current position. However, an employer may treat undocumented workers differently based on that individual’s undocumented status if the employer can show by clear and convincing evidence it was required to do so to comply with federal immigration law.
Therefore, unless otherwise required by federal immigration law, undocumented workers are protected under FEHA to the same extent as other applicants or employees. According to the new national origin regulations, an employee’s or applicant’s immigration status is irrelevant during the liability phase of any proceeding. During discovery (e.g., depositions during a lawsuit) it is not permitted to inquire into an employee or applicant’s immigration status unless it is shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law. For example, if an employer is found to be liable for violating the rights of an undocumented employee under FEHA, the remedy of reinstatement will not be available.
The regulations state the following may constitute retaliation based on an individual’s immigration status/national origin:
- Threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of the employee, former employee, or applicant or a family member (spouse, domestic partner, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, great-grandparent, grandchild, or great-grandchild, by blood, adoption, marriage, or domestic partnership) of the employee, former employee, or applicant, or,
- Taking adverse action against an employee because the employee updates or attempts to update personal information based on a change of name, social security number, or government-issued employment documents.
For the second example (B), individuals may initially gain employment by providing false documents but obtain legal status and “real” documents. According to the new regulations in California, these individuals may update their social security number with the employer without fear of disciplinary action or termination based on these new regulations.
The use of epithets, derogatory comments, slurs, or non-verbal conduct based on national origin, including, but not limited to, threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language or its speakers may constitute harassment if the actions are severe or pervasive such that they alter the conditions of the employee’s employment and create an abusive working environment. A single unwelcome act of harassment may be sufficiently severe so as to create an unlawful hostile work environment.
Height and Weight Requirements
Height and weight requirements will be unlawful unless the employer can 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
It is unlawful to recruit applicants or employees based on national origin, and to assign positions, facilities or geographical areas of employment based on national origin.
- Update your employee handbook. Certain policies that may need to be modified or updated include equal employment opportunity policies (discrimination, harassment, retaliation, etc.) to also expressly prohibit associational and perception-based discrimination, harassment and retaliation.
- Review Language Use Policies. Have legal counsel review your language use policies to ensure your “business necessity” meets the legal standard.
- Height and Weight Requirements. Review job descriptions, policies, and other related policies to ensure that any height and weight requirements are job related and justified by business necessity, and determine whether their purpose can be achieved as effectively through less discriminatory means.
- Training. You may need to train staff, such as hiring managers, HR, and others, on these new provisions.
- Harassment Training. Your harassment training should include harassment and discrimination based on national origin.