California’s strict rules prohibiting harassment and discrimination based on protected classes, including national origin, are getting stricter on July 1, 2018. New regulations under the Fair Employment and Housing Act (FEHA), entitled “Regulations Regarding National Origin Discrimination,” will strengthen the protections afforded to applicants and employees, including individuals who are undocumented, based on their national origin.  

Expanded Definition

Among the more notable changes, the regulations expand the definition of “national” origin under FEHA to include an individual’s or the individual’s 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. 
6. Name that is associated with a national origin group.  

The regulations also provide that “national origin group” includes any ethnic groups, geographic places of origin, and countries that are not presently in existence. 

Prohibited Practices

Additionally, the regulations expand the list of “Specific Employment Practices” prohibited under FEHA to include the following:  

1. Language restriction policies, including English-only policies. Previously, such policies were considered unlawful unless the employer met certain notice requirements (including notifying employees of the restriction and the consequences for violating it) and could demonstrate that the policy was justified by a “business necessity,” defined narrowly as “an overriding legitimate business purpose” such that a) the restriction is necessary to the safe and efficient operation of the business; b) the restriction effectively fulfills the business purpose it is supposed to serve; and c) there is no alternative to the restriction that would serve the business purpose as well, with a less discriminatory impact– for example, posting signage in multiple languages. Under the new regulations, the employer must now also show that the restriction is “narrowly tailored” to achieve that business interest. In addition, “English-only rules” are never lawful during an employee’s non-work time, such as meal and rest breaks and unpaid employer-sponsored events.  
2. Discrimination based on an applicant’s or employee’s accent, unless the employer can show the accent “interferes materially” with the applicant’s or employee’s ability to perform his or her job.
3. Discrimination based on an employee’s level of English proficiency, unless the employer can show that an English proficiency requirement is justified by business necessity.
4. Height and weight requirements (as such may have a disparate impact on the basis of national origin), unless the employer can show that the requirement is job related and justified by business necessity and that the purpose of the requirement cannot be met by less discriminatory means.
5. Recruitment, or assignment of positions/facilities/geographical areas, based on national origin. 
6. Inquiring into an applicant’s or employee’s immigration status, or discriminating/retaliating against an applicant or employee based on their immigration status, unless the employer can show by clear and convincing evidence that they are required to do so under federal immigration law.  

Next Steps for Employers

Employers can take several steps to ensure they are not in violation of these new regulations. Employers should review their employment verification practices to ensure any work authorization inquiries are required for purposes of complying with federal law. To the extent employers have any English-only rules or language restrictions, they should carefully consider whether such rules or restrictions are narrowly tailored and necessary for each position. If employers have height and weight requirements in place, they should review those to determine, in part, whether they are justified by business necessity as that term is defined under FEHA. Employers also should update employee handbooks and training materials to ensure that associational and perception-based harassment and discrimination based on national origin are adequately explained and understood by managers and other upper-level employees.