New National Origin Discrimination Regs: FEHC Hears Public Comments

by Seyfarth Shaw LLP
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Seyfarth Synopsis: On July 17, 2017, the California Fair Employment and Housing Council (FEHC) heard public comments on its proposed regulations covering national origin discrimination under the FEHA. Discussion centered on employer-imposed language restrictions, English proficiency requirements, and immigration-related employment practices. Look for final regulations later this year. 

The FEHC kicked off its third meeting of the year, this time in San Francisco. Prominent on the agenda: the proposed and rapidly advancing national origin discrimination regulations. As stated in the FEHC’s notice of the meeting: “The overall objective of the proposed amendments is to describe how the [FEHA] applies to the protected class of national origin in the employment context, primarily by centralizing and codifying existing law, clarifying terms, and making technical corrections.”

A call to enact these regulations first came from Legal Aid at Work (an employee-oriented legal services organization formerly known as the Legal Aid Society, Employment Law Center), during the FEHC’s August 31, 2016 hearing. The FEHC quickly created a subcommittee and drafted regulations, which we previously reported on here, that largely mirrored the EEOC’s guidance on national origin discrimination.

At the July 17 hearing, public comments revolved around (a) language restrictions (“English only” rules), (b) employer requirements for English language proficiency, (c) discovery as to an individual’s immigration status during the liability phase of any lawsuit or other proceeding to enforce the FEHA’s prohibition of national origin discrimination, and (d) expanding the definition of what constitutes harassment on the basis of national origin. The only public comments received at the hearing were from employee-leaning individuals and groups.

English only. The draft regulations would make it an unlawful employment practice for an employer to adopt a policy that creates an “English only” rule, unless (1) the rule is job-related and consistent with business necessity, (2) the rule is narrowly tailored, and (3) employees get effective notice of when and where the rule applies and what consequences result from a violation.

The regulations would also provide that an English-only policy would not be valid simply for promoting business convenience or reflecting customer preference. Representatives of Legal Aid at Work emphasized at the hearing that the latter should be amended to state a co-worker preference, not the customer’s.

Further, the regulations would explicitly presume that English-only rules violate FEHA unless the employer can prove “business necessity”—defined narrowly as “an overriding legitimate business purpose” that is necessary to the safe and efficient operation of the business, where the policy effectively serves that purpose, and where there is no alternative to the language restriction that would serve the business purpose as well, with less discriminatory impact. One commentator at the hearing argued that the FEHC should expand this presumption to find a violation if there is no effective employee notification about the language restrictions. Legal Aid at Work also called for the FEHC to draft a new section to address how an English-proficiency requirement relates to an employee’s ability to perform the job. These folks would like CA to distinguish itself from the reasoning of Garcia v. Rush-Presbyterian-St. Luke’s Medical Center, in which the court approved an employer’s requirement for verbal and written English proficiency in part because English was the dominant language in the area.

Discovery of Immigration Status. The FEHC also heard public comments to clarify the complex rule about when discovery into an individual’s immigration status is allowed during the liability phase of a proceeding. The proposed regulations would permit such discovery “only when the person seeking to make the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.” The commentators argued that mere possession (or lack) of a driver’s license would not constitute “clear and convincing evidence,” as all California residents are eligible to receive a license, regardless of immigration status.

Expansion of “harassment.” A representative of the California Employment Lawyers Association (a group of plaintiffs’ lawyers calling themselves an employee-rights group) called for expansion of the harassment portion of the regulations, to include specific reference to banning creation of a hostile work environment on the basis of national origin. Speakers also asked that the FEHC expand what would constitute as per se harassment to include deportation threats against an individual’s blended family members (i.e., step-parents, step-aunts and uncles, and step-children).

The comment period for the proposed regulations closed at 5 p.m. on July 17th. We anticipate the FEHC will consider all comments before issuing a final statement of reasons and potentially revising the proposed regulations.

We will keep you apprised of what the FEHC opines next on the topic of national origin regulation.

Edited by Colleen Regan.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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