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Fair Employment and Housing Council Broadens Definition National Origin

National Origin Discrimination

Changes Made to Protect Against National Origin Discrimination to Include
Specific Provisions Relating to Language Restrictions and Employees’ Immigration Status

The California Fair Employment and Housing Council published new regulations on May 17th relating to national origin discrimination. The regulations will take effect on July 1, 2018, and will be codified in the California Code of Regulations sections 11027 and 11028.

The revised regulations expand the scope of the current discrimination provisions of California’s Fair Employment and Housing Act (FEHA) specific to national origin by extending the definition of “national origin”, which includes the individual’s or ancestors’ actual or perceived national origin to include:

  1. physical, cultural, or linguistic characteristics associated with a national origin group;national origin discrimination
  2. marriage to or association with persons of a national origin group;
  3. tribal affiliation;
  4. membership in or association with an organization entified 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.

Including both current and revised regulations, the following activities are expressly prohibited unless there is a business necessity.

  • An employer cannot discriminate against a person based on their level of English proficiency unless proficiency is required to effectively fulfill the employee’s job duties. Relevant factors include the type and degree of proficiency and the nature and job duties of the position.
  • Policies that limit or prohibit the use of any language, including, but not limited to an English-only rule. The new regulations state that unless an employer can demonstrate a business necessity “any language” restrictions are presumed unlawful. In addition to a business necessity, an employer with a policy limiting or prohibiting any language must demonstrate that the restriction is 1) narrowly tailored and 2) the employer notifies employees of the circumstances and time when the language restriction must be observed, in addition to notifying the employees of the consequences for the violation.
  • 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 his/her specific job.
  • The regulations go into further detail as to what constitutes a business necessity.
  • The regulations prohibit discrimination against employees due to their immigration status unless the employer shows by “clear and convincing” evidence that its actions were necessary to comply with federal immigration laws. California employers must still ensure proper completion of Form I-9 for each individual they hire and may not hire individuals who cannot demonstrate their identity and employment authorization.

In addition to the specific prohibitions above, the new FEHA anti-discrimination regulations also include a number of miscellaneous provisions related to height and weight restrictions that disproportionately affect members of one national origin group as well as derogatory comments, slurs, or non-verbal conduct based on national origin, including threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language,

California Employment Lawyers
The regulations specifically note that “a single unwelcomed act of harassment may be sufficiently severe to create an unlawful hostile work environment”. With this in mind, an experienced employment lawyer may be able to help you determine if you’ve been a victim of discrimination. To discuss new FEHA regulations, or any of California’s discrimination laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.