New expanded national origin job bias regulations are set to take effect for California employers on July 1, 2018. These new regulations enhance protections afforded to job applicants and employees, including undocumented workers, under the state’s national origin discrimination rules.
For decades, existing California law has prohibited employers from discrimination on the basis of “national origin”. That term was formerly defined narrowly as ” the individual’s or ancestors’ actual or perceived place of birth or geographic origin, national origin group or ethnicity .” These new National Origin Discrimination Regulations broaden that definition considerably to include the individual’s or ancestors’ actual or even perceived :
Physical, cultural, or linguistic characteristics associated with a national origin group;
Marriage to or association with persons of a national origin group;
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
Name that is associated with a national origin group.
Beyond broadening the scope of who is protected from national origin discrimination, the new National Origin Discrimination Regulations also greatly expand the kinds of employer actions and policies that may run afoul of these new rules. Under these new regulations, national origin discrimination may include any of the following:
Language Restriction Policies. In a marked change from the existing law, language restriction policies are now presumed unlawful. Thus, an employer may not adopt or enforce a policy that limits or prohibits the use of any language in the workplace, including a so-called speak English-only rule, unless the employer can meet the very high legal burden of establishing that any language use restrictions are: (i) justified by “business necessity;” (ii) “narrowly tailored to further that business interest;” and (iii) the employer has notified employees of the circumstances and time when the language restriction is required and of the consequences for violating the policy. To prove the “business necessity” for a rule or policy that might run afoul of these regulations is a very steep hill to climb. It means demonstrating an overriding legitimate business purpose, such that (a) the language restriction is necessary to the safe and efficient operation of the business; (b) the language restriction effectively fulfills the business purpose it is supposed to serve; and (c) there is no alternative practice that would accomplish the business purpose equally. Notably, the regulations provide that it is simply not enough that the language restriction merely promotes business convenience or is due to customer or co-worker preference. The new regulations also make it clear that the application of an English-only rule is never lawful during an employee’s non-working time.
Discrimination Based On Accent. Employers cannot discriminate based on an applicant’s or employee’s accent except where the employer proves that the individual’s accent materially interferes with the applicant’s or employee’s ability to perform the job.
Discrimination Based On English Proficiency. Employers cannot discriminate based on English proficiency unless the employer can show that the proficiency requirement is justified by a “business necessity.” To determine what constitutes a business necessity, relevant factors include the type of proficiency required (e.g., spoken, written, and/or reading comprehension), the degree of proficiency required, and the nature and job duties of the position.
Height And Weight Requirements. The new regulations state that height and weight requirements may be unlawful because they may impact certain protected groups more than others. An employer may not discriminate based on height or weight, unless the requirement can be justified by “business necessity” and the objective of the requirement cannot be met by less discriminatory means.
Recruitment And Job Segregation. It is unlawful to recruit applicants or employees based on national origin, or assign positions, facilities or geographical areas of employment based on national origin.
Immigration-Related Practices. Employers may not make any inquiry into an applicant’s or employee’s immigration status, including requiring documentation, unless the employer can show “by clear and convincing evidence” that such inquiry is required by federal law. This means that the only time such inquiries will likely be permitted is during the I-9 process.
Words Matter. The new regulations also describe various conduct that could be considered national origin harassment, such as the use of ethnic epithets, derogatory comments, slurs, threats of deportation, derogatory comments about immigration status, or mocking a person’s accent, language or its speakers. Even non-verbal conduct (such as gestures) may be deemed illegal national origin discrimination.
Since these National Origin Discrimination Regulations are set to take effect on July 1, 2018, employers should review their English-only rules and employment verification practices to ensure compliance. Additionally, employers need to be sure that managers and supervisors are well versed on the requirements of these new National Origin Discrimination Regulations so they understand what kinds of practices and behaviors are still acceptable under these new regulations.
If you have any questions about these regulations, please contact any member of the Firm. We can be reached at (818) 508-3700, or online at www.brgslaw.com.
Jessica A. Gomez
Katherine A. Hren
Richard S. Rosenberg
Ballard Rosenberg Golper & Savitt, LLP