Insights
Publications

California to Implement Broad New National Origin Discrimination Protections

6/27/2018 Articles
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.

Firm Highlights

News

Ripple Effects of the Supreme Court’s 2023 Decision on Affirmative Action

Kelly Matayoshi was quoted in the article "Ripple Effects of the Supreme Court’s 2023 Decision on Affirmative Action" in the Bar Association of San Francisco's fall issue of  San Francisco Attorney Magazine . Read...

Read More
Publication

Navigating California's New Rebuttable Presumption Law

The ever-evolving landscape of employment laws in California has introduced a notable change with the implementation of a new law that establishes a rebuttable presumption of retaliation in some circumstances. This law, which took...

Read More
Publication

Important Changes and the Impact of California Industry-Specific Minimum Wage Laws

In the ever-evolving landscape of California labor laws, the minimum wage has once again taken center stage. With the recent state-wide increase to $16 per hour, the Golden State continues to lead the nation...

Read More
News

Farella Braun + Martel Welcomes Benjamin Buchwalter to Growing Employment Group

Read More
Publication

Employment Law Update for Nonprofits With Holly Sutton

Welcome to  EO Radio Show - Your Nonprofit Legal Resource . Charities, foundations, and their founders often request help addressing employment practices and compliance questions. In this episode, host Cynthia Rowland is joined by Holly...

Read More
News

Farella Braun + Martel Earns 2024 Best Law Firms® Rankings

Read More
Publication

Navigating California's Evolving Legal Landscape Governing Leaves of Absence

California’s employment laws are no stranger to change, and recent years have witnessed the introduction or modification of various protected leaves by employees. In this article, we will delve into three significant leave categories...

Read More
Publication

Employment Law Symposium Recordings & Articles

Employers Face Significant New Requirements for Severance Agreements and Non-Competes  (Recording) Conducting Effective, Defensible Investigations (With Lessons Learned from Summary Judgment & Trial)  (Recording) California Employment Law Updates: What to Look Out for in...

Read More
Publication

Navigating Cannabis in the Workplace: A Guide for California Corporations

The landscape surrounding cannabis in the workplace is rapidly evolving, posing challenges for California corporations and businesses to establish effective policies and procedures. As the use of cannabis, both medical and recreational, becomes more...

Read More
Publication

Navigating California's Workplace Violence Prevention Law

California has introduced a new requirement compelling most employers to implement a workplace violence prevention policy by July 1, 2024. The implications of this law are significant, prompting the need for human resource executives...

Read More