Effective July 1, 2018, California has new regulations that expand the definition of “national origin” and associated discriminatory acts under the Fair Employment and Housing Act (FEHA). Of course, national origin discrimination has already been considered prohibited under FEHA and Title VII of the Civil Rights Act of 1964, as amended. The new FEHA regulations expand the enforcement mandate of the Department of Fair Employment and Housing (DFEH).
National origin was previously defined as an “individual’s or ancestors’ actual or perceived place of birth or geographic origin, national origin group or ethnicity.” This was a limited definition but over the years, many additional characteristics were seen to fall under the purview of national origin discrimination; e.g., “English-only” policies or mocking an accent.
The new definition is far more expansive. It includes:
- Physical, cultural, or linguistic characteristics associated with a national origin group;
- Marriage to or association with persons of a national origin group;
- Tribal affiliation;
- Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
- Attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
- Names that are associated with a national origin group.
Further, the regulations also specifically cite certain practices that may be prohibited or are indicative of national origin discrimination under FEHA:
- Language restriction policies, including English-only policies, unless the restriction can be justified by business necessity and is narrowly tailored to further that business interest;
- Discrimination based on an applicant’s or employee’s accent, unless the employer can show the accent materially interferes with the applicant’s or employee’s ability to perform the job;
- Discrimination based on English proficiency, unless the employer can show that the proficiency requirement is justified by business necessity;
- Height and weight requirements (as such may have a disparate impact on the basis of national origin), unless the requirement can be justified by business necessity and the purpose of the requirement cannot be met by less discriminatory means;
- Recruitment, or assignment of positions/facilities/geographical area, based on national origin; and
- Inquiring into an applicant’s or employee’s immigration status, or discriminating against an applicant or employee based on immiQuestgration status, unless required to do so under federal immigration law.
Many of these items are not new aspects of California law. For instance, as mentioned above, “English-only” policies have been subject to scrutiny under both California and federal anti-discrimination laws for many years. Further, while now specifically part of the FEHA regulations, mocking an accent has been an indicator of national origin discrimination for some time. However, employers may now wish to specifically incorporate these items into their anti-discrimination policies, given that the FEHA regulations may well be indicative of DFEH’s upcoming enforcement priorities.
Employers should also review their practices to ensure that they comply with the portions of the FEHA regulations that are not so straightforward. For instance, the new regulations state that “height and weight requirements” may be a form of national origin discrimination. Unlike mocking an accent or an English-only policy, this regulatory statement may not seem intuitive to employers, but under the FEHA regulations, such requirements may give rise to disparate impact claims (e.g., you implement a minimum height policy, which does not correspond to a business necessity, and thereby exclude all or most members of a particular national origin that has a strong correlation with shorter height in its membership).
Similarly, employers should review their practices with respect to requirement in job descriptions for a driver’s license. Under the new regulations, an employer can only require one if (a) the possession of a driver’s license is required by state or federal law, or (b) if the possession of a driver’s license is “otherwise permitted by law.”
Employers Council is available to assist and, preliminarily, recommends an internal review of any of the following policies:
- EEO policies; e.g., those found in a handbook;
- Any policies indicating that only English or any other language may be spoken in the workplace;
- Any height and weight requirements for positions;
- Any language requirements for positions;
- Any recruitment, placement, hiring, assignment, or transfer protocols that implicate language proficiency and/or certain national backgrounds; and
- Questions on applications, interviews, or any other documentation that requests information on immigration status that is not an official state or federal form.
For questions on the FEHA regulations, please contact the California Legal Services group at Cainfo@EmployersCouncil.org.