The CA Fair Employment & Housing Council (FEHC) recently issued further clarification for employers on how national origin will be defined. The new FEHC Regulations elaborate on the protections of applicants and employees who may be undocumented or be members of ethnic groups, other geographic places of origin and countries that are not presently in existence. If you have the slightest concern about the accents, height or weight of your staff, read on. Here are some surprising expansions of this protected class:
First, a Definition
“National origin” under CA law includes, but is not limited to, the individual’s or ancestors’ actual or perceived:
(1) physical, cultural, or linguistic characteristics associated with a national origin group;
(2) marriage to or association with persons of a national origin group;
(3) tribal affiliation;
(4) membership in or association with an organization identified 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.
Language Restrictions
It’s been unlawful for a long time in CA to have “English-only” rules at work. We sometimes hear from employers that other employees or customers don’t appreciate others speaking another language. (“I think they’re talking about me.”) It’s unlawful for an employer to have a policy that limits or prohibits the use of any language in the workplace, including, but not limited to an English-only rule. There are a few exceptions to the new regulations that may allow language restrictions at work:
(A) The language restriction is justified by business necessity;
(B) The language restriction is narrowly tailored; and
(C) The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for
violating the language restriction.
The “business necessity” definition carries a high bar to cross, including: the language restriction is necessary to the safe and efficient operation of the business; it effectively fulfills the business purpose it is supposed to serve; and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. Don’t even think that the restriction will be defensible if it merely promotes business convenience or is due to customer or co-worker convenience. And certainly, English-only rules are never lawful during an employee’s non-work time.
A word of caution that an employer may not discriminate based on an applicant’s or employee’s accent unless the employer can prove that the individual’s accent interferes with the ability to perform the job. Similar restrictions apply for an applicant’s or employee’s English proficiency unless English proficiency is justified by business necessity, such as the level required to fulfill the job duties.
Height and/or Weight Requirements
Be careful about setting out minimum height and weight requirements that may result in an adverse impact (screening in or out) on the basis of one’s national origin. (“You must be this tall to operate this equipment.”) The employer must demonstrate that such physical attributes are job related and justified by business necessity. And it can still be unlawful if proven that the purpose of the requirement can be achieved as effectively through less discriminatory means.
Harassment
If you’ve attended our Respect in the Workplace classes, you know that using epithets, derogatory comments, slurs or other non-verbal comments based on someone’s national origin is illegal. The FEHC Regulations further include the reminder that threats of deportation, derogatory comments about immigration status, or mockery of an accent or language of its speakers may be considered illegal harassment. Avoid teasing and joking around about these topics, even if you are one!
Keep in mind that the laws and the regulations apply to undocumented applicants and employees as much as they apply to any other applicant or employee.
Driver’s Licenses
Although not new, CA employers may not discriminate against an applicant or employee because he/she holds or presents a driver’s license issued to CA undocumented residents under AB-60.
Please contact your HR consultant or legal counsel if you have questions about the expansion of this protected class.