National Origin Discrimination Expanded
California has once again stepped ahead of the rest of the country as well as the federal government in issuing proposed regulations through the Department of Fair Employment and Housing which would go beyond those issued in 2016 by the United States Equal Employment Opportunity Commission. The new California regulations, if passed, will go in effect by the end of 2017 and substantially expand the protections for applicants and employees based on “national origin.” Current regulations do not clearly define the term “national origin” so the new regulations define it to include “the individual’s or ancestor’s actual or perceived place of birth or geographic origin, national origin group or ethnicity.” Applicants and employees would be protected from workplace discrimination not only on the basis of an actual national origin, but on the basis of perception or assumptions as articulated by themselves. The individuals would also be protected against actual or perceived national orientation discrimination of the individual’s spouse, child, or anyone else whom the individual associates with. Even affiliation with certain groups or religious groups associated with a national origin group would be protected and tribal affiliations are specifically included. More disconcerting, are the proposed regulations which will considerably tighten the restriction on the Employer’s right to insist that employees speak English only in the workplace. Current regulations allow English only policies at certain time if the Employer can demonstrate a business necessity for the policy and the Employer notifies the employees of such rules. The new regulations, however, start from the proposition that English only restrictions are not lawful during rest breaks, meal periods, and other non-work time. The new regulations make clear that language restrictions are disfavored even during worktime, and will be lawful only if narrowly tailored and based on business necessity. The definition of business necessity will include being based on the safe and efficient operation of the business where there is no alternative practice that would achieve the same purpose equally well. Business convenience or customer preference is not sufficient to establish business necessity. Employers will, of course, be required to notify employees of the workplace restrictions and the consequence of violating such as well as evenly enforcing them.
The new regulations also include protections regarding an individual’s accent and will allow Employers to take action based on accent only if the Employer can establish that the accent “materially interferes with” the individual’s ability to do the job. In addition, Employers will be prohibited from discriminating against individuals based on their English proficiency and may establish proficiency standards only if the Employer can establish that proficiency is necessary for the position and the standard is again narrowly tailored. The regulations also prohibit Employers from discriminating on the basis of training or education outside the United States but likewise would prohibit an Employer from insisting that an individual be foreign trained. The new anti-discrimination protections are applicable to undocumented workers as well. Employers will be prohibited from asking an employee or applicant about immigration status or taking an action on that basis unless the Employer can show by “clear and convincing evidence” that doing so was required by federal immigration law. These regulations will not, for example, interfere the Employer’s compliance with I-9 requirements. Finally, the most unusual aspect of the regulations with regard to national origin, is that they also contain a prohibition against Employers imposing height or weight requirements on applicants or employees unless it can be established that there is a business necessity for doing so. The Fair Employment and Housing Commission has suggested that “there are height and weight characteristics associated with particular national origin groups that create disparate impacts on the basis of various national origins.”
Employers who are opposed to such regulations should notify their Congressional and Senate Representatives to see if these absurd rules can be blocked, but at least being forewarned allows Employers to be prepared. Anyone wishing to discuss or further explore the restrictions under the new regulations may feel free to contact Dave Cohen at The Employer’s Council.