The California Fair Employment and Housing Council has published new regulations that increase protections from national origin discrimination, including expanding the definition of “national origin.” The regulations will take effect July 1, 2018.

The regulations will broadly define “national origin” to include an individual’s or 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.

Particularly notable developments are the clarifications that “national origin” protections extend to those associated with persons of certain national origins, or attending religious institutions or schools used by such persons. EEOC guidelines explain that association-based harassment and discrimination include, for example, harassing an employee because their husband is from Afghanistan, or refusing to promote an employee because he attends a mosque.

The regulations will also provide that “national origin group” includes “ethnic groups, geographic places of origin, and countries that are not presently in existence.” Thus, the regulations may extend protections to groups that are not formally recognized by other nation-states.

Prohibitions Against Language Restrictions

• Policies that limit or prohibit the use of any language. The new regulations withdraw a long-standing authorization of workplace rules requiring employees to speak only English at certain times. Now, such requirements are presumed unlawful, unless the employer can establish a business necessity, i.e. that 1) the rule is necessary to the safe and efficient operation of the business; 2) the rule fulfills the business purpose it is supposed to serve; and 3) the employer has no alternative that would serve the business purpose. The employer must also notify employees of the circumstances and times when the language restriction must be observed, and the consequences of violating it.
• English Proficiency. An employer cannot discriminate based on an applicant’s or employee’s English proficiency, unless the employer can show that such proficiency is required to fulfill the employee’s job duties. Relevant factors include the degree of proficiency and the nature and job duties of the position.
• Accent. Similarly, an employer cannot discriminate against a person because of his or her accent unless the employer can show that the accent “interferes materially” with the employee’s ability to do their specific job.

Miscellaneous Provisions

The regulations also include the following miscellaneous provisions:

• Immigration. Employers are prohibited from inquiring into an employee’s or applicant’s immigration status, unless required to do so by federal immigration law, such as completing federally mandated Form I-9 verifications;
• Height and Weight Requirements. Employers are prohibited from using height and weight restrictions that disparately impact certain national origin groups, absent a business necessity.
• Harassment. The regulations reiterate current prohibitions on harassment and retaliation based on national origin.

Takeaway

Employers should ensure that their anti-harassment and discrimination policies expressly prohibit discrimination and harassment based on national origin. Employers with language rules in place should assess whether those rules meet the requirements of the new regulations, and eliminate any language restrictions during non-work time, including during meal and rest breaks. Additionally, employers should assess whether their height or weight requirements and immigration status inquiries are narrowly tailored to meet the standards of the new law.

Link to New Regulations

Fair Employment & Housing Council Regulations Regarding National Origin Discrimination.