NEW PROTECTIONS AGAINST NATIONAL ORIGIN DISCRIMINATION
The California Fair Employment and Housing Council (FEHC) recently issued new regulations that provide a more detailed definition of “national origin” and “national origin groups”. The new regulations also set forth the permissible and impermissible types of policies relating to English only language restrictions, inquiries regarding immigration status, and the permissible and impermissible types of height and weight requirements for work. These regulations became effective July 1, 2018.
“National Origin” and “National Origin Groups”
Under the new regulations, the definition of “national origin” includes an individual’s “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 national origin group; and
(6) name that is associated with a national origin group.
The regulations also provide that “national origin groups” include “ethnic groups, geographic places of origin, and countries that are not presently in existence.” In an Equal Employment Opportunity Commission (EEOC) guidance on national origin discrimination, the Commission explained that a geographic region may include “a region that never was a country but nevertheless is closely associated with a particular national origin group, for example, Kurdistan or Acadia.” Click here to visit the EEOC’s website on Enforcement Guidance.
The (EEOC) and various courts have provided the following examples of the types of associational and perception-based harassment and discrimination based on national origin that are prohibited:
- Harassment of an employee whose husband is from Afghanistan;
- Refusal to promote an employee because he attends a mosque;
- Harassment of a Hispanic person by a harasser who perceived that the individual was Pakistani;
- Coworkers repeatedly referring to an employee of Indian descent as “Taliban” or “Arab”;
- Harassment of a Sikh man wearing a turban because the harasser perceived him to be Muslim.
Impermissible Language Restrictions
California has for many years prohibited employers from adopting or enforcing a policy that limits or prohibits the use of any language in the workplace. The new regulations specifically target “English-only rules” stating that they are presumptively illegal unless the employer can meet a three-part test proving that the rule is:
(a) justified by business necessity,
(b) is narrowly tailored, and
(c) was effectively explained to employees.
“Business necessity” is defined as an overriding legitimate business purpose, such that “(A) [t]he language restriction is necessary to the safe and efficient operation of the business; (B) [t]he language restriction effectively fulfills the business purpose it is supposed to serve; and (C) [t]here is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.”
The new regulations also state that “English-only rules are never lawful during an employee’s non-work time,” such as breaks, lunch, and unpaid employer-sponsored events. The regulation also note that an employer’s attempt to restrict language use during non-working hours may involve sufficient employer “control” over that time to make it compensable.
Immigration-Related Practices Restrictions
The new regulations place several restrictions on immigration-related practices.
An employer cannot make inquiries into an employee’s immigration status “unless the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.”
An employer also may not discriminate or retaliate against an employee because of the employee’s immigration status, “unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.”
Height and Weight Requirements Lead to National Origin Discrimination
According to the FEHC, there is a nexus between various national origins and certain physical characteristics. The new regulations expressly state that height and weight requirements may be unlawful because they may have the effect of discriminating based on national origin. Where an employee shows that a height or weight requirement has an adverse impact, the requirement is unlawful unless it is job-related and justified by business necessity, and its purpose cannot be achieved as effectively through other means.
What Should I Do Now?
- Review Your Policies: Policy statements must comply with the new national origin regulations as to the expansion of the definition of “national origin”.
- Educate Supervisors on Workplace Language Restrictions: Supervisors should be advised that any language restrictions on employees during their duty-free time, including during meal and rest breaks are not permitted.
- Review Height and Weight Requirements: If any position has a height or weight requirement, these must be reviewed to determine if they meet the 3 prong test: job-related, justified by business necessity, and consider whether their purpose can be achieved as effectively through less discriminatory means.
- Educate Manager & Supervisors on what is permissible and impermissible workplace conduct relating to an employee’s national origin, the perception of their national origin and a person’s association with a national origin.