In late May, California announced new amendments to the Fair Employment and Housing Act (FEHA) strengthening the protections afforded to applicants and employees, including those who are undocumented, on the basis of national origin. The changes go into effect July 1, 2018. The new regulations significantly broaden the definition of “national origin” as well as conduct that constitutes discrimination based on national origin.
Expanded Definitions Under the FEHA
Historically “national origin” referred to “the individual’s or ancestors’ actual or perceived place of birth or geographic origin, national origin group or ethnicity.” Moving forward, California law will take a much more holistic view of national origin:
- “National origin” now includes, but is not limited to, an individual’s actual or perceived:
- 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
- Name that is associated with a national origin group.
- “National origin group” now includes, but is not limited to: “ethnic groups, geographic places of origin, and countries that are not presently in existence.”
- “Discrimination on the basis of national origin” under FEHA is amended to include:
- 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
- Inquiring into an applicant’s or employee immigration status, or discriminating against an applicant or employee based on immigration status, unless required to do so under federal immigration law.
- “Retaliation” against an employee for opposing discrimination or harassment on the basis of national origin includes, but is not limited to:
- Threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of the employee, former employee, applicant, or a family member (e.g., spouse, domestic partner, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, great-grandparent, grandchild, or great-grandchild, by blood, adoption, marriage, or domestic partnership) of the employee, former employee, or applicant
- Taking adverse action against an employee because the employee updates or attempts to update personal information based on a change of name, social security number, or government-issued employment documents.
The regulations also clarify the nexus between national origin discrimination and human trafficking under the Act, defining human trafficking as “the use of force, fraud, or coercion to compel the employment of, or subject to adverse treatment, applicants or employees on the basis of national origin.”
Impact on California Employers
California employers should review immigration-related and English-only policies:
- With respect to immigration-related practices, do not inquire into an applicant’s or employee’s immigration status unless the inquiry is necessary to comply with federal immigration law. Check employment applications and interview questions, and train HR accordingly. FEHA’s prohibitions apply regardless of immigration status, thus an applicant or employee can bring a discrimination charge whether they are documented or undocumented.
- Employers must also take care that English-only policies, if used at all, do not apply to non-work time and are essential to the company’s business.
- Prior to these amendments, English-only rules were presumptively lawful so long as the employer showed the policy was justified by a business necessity, gave sufficient notice of the circumstances in which the policy would be enforced and the consequences for non-compliance with the policy.
- However, the burden of proof flipped: English-only rules will be presumed unlawful unless an employer can demonstrate that the rule is narrowly tailored to further a business necessity. Because of this heightened standard, many English-only policies are likely to violate FEHA once the new regulations go into effect next month.