New California Regulations

Take Effect July 1, 2018

California law prohibits discrimination against employees and applicants for their membership in any protected class, including national origin. The California Fair Employment and Housing Council (FEHC), which enacts regulations to protect employees and job candidates from unlawful discrimination, harassment and retaliation, recently issued greater national origin protections.

Effective July 1, 2018, new regulations expand the definitions of “national origin” and “national origin groups.”

• National origin: “includes, but is not limited to, the individual’s or ancestors’ 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, or other religious institutions generally used by persons of a national origin group; and (6) name that is associate with a national origin group.
• National origin groups: “include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.

The new regulations expand national origin discrimination to include:

• Language restrictions, including an English-only rule, unless such restriction is justified by business necessity and is narrowly tailored. For example, declining to hire an individual who speaks English proficiently with an unfamiliar accent might well bring about a discrimination claim;
• Discriminating based on an applicant’s or employee’s accent unless the accent materially interferes with job performance;
• Discrimination based on English proficiency unless properly justified by business necessity;
• Discriminating against undocumented applicants and employees; and
• Height and weight requirements that negatively affect certain individuals on the basis of their national origin unless the requirements are job-related and justified by business necessity and cannot be achieved through less discriminatory means.

The regulations also provide examples of potentially unlawful harassing conduct, including deportation threats, mocking someone’s accent or language, and the use of derogatory comments, slurs or other non-verbal conduct.

Prevention of national origin discrimination and harassment claims begins with educating management and workers alike through well-written and updated workplace policy and protocols.

See also:

• California Labor Laws 2015: California Expands National Origin Discrimination Definition (November, 2014)
• English- Only and Fluency Requirements for the Workplace (November, 2011)
• National Origin Discrimination (April, 2011)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

June 1, 2018