As any reader of our blog knows, California employers are prohibited from discriminating on the basis of national origin (among other classifications). The Fair Employment and Housing Commission (“FEHC”) recently issued new regulations, which go into effect on July 1, 2018, expanding the definition of “national origin” to include an individual’s or ancestors’ actual or perceived (1) physical, cultural, or linguistic characteristics associated with a national origin group; (2) marriage to persons of a national origin group; (3) tribal affiliation; (4) membership in an organization identified with or seeking to promote the interests of a national origin group; (5) attendance in schools or religious institutions typically used by persons of a national origin group; and (6) name associated with a national origin group. The regulations also provide that “national origin groups” include “ethnic groups, geographic places of origin, and countries that are not presently in existence.”
These new regulations further specify the following:
1. Employers may not have an “English-only rule” unless they are able to demonstrate the following three elements: (1) that the rule is a business necessity; (2) that the rule is narrowly tailored; and (3) that the rule was effectively explained to employees. In order to be considered a “business necessity,” the employer must establish: (1) that the language restriction is necessary to the safe and efficient operation of the business; (2) that the language restriction effectively fulfills the business purpose it is supposed to serve; and (3) that there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. Further, while the FEHC clearly establishes that some English-only rules may be permissible, it clarifies that such rules “are never lawful during an employee’s non-work time.” This means that English-only rules are never permissible during meal or rest breaks, or other unpaid employer-sponsored events.
2. Employers may not question an employee’s immigration status “unless the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.”
3. Employers may not have height and weight requirements that disparately impact a certain national origin group. Where an employee is able to show that a height and/or weight requirement does adversely impact a particular national origin, the requirement will be considered unlawful unless the employer can establish the requirement is job related and justified by business necessity, and its purpose cannot be achieved through other means.
If you employ more than five employees in California, you should review your employment policies to ensure compliance with these new regulations. Specifically, employers should ensure that any English-only language restrictions, and or height and weight requirements, comply with these new regulations, and are supported by legitimate business needs.
Still have questions? The attorneys in Weintraub Tobin’s Labor and Employment Group assist employers in all areas of employment law compliance. Contact any one of us if we can be of assistance.