[lg policy] New FEHA regulations widen the scope of national origin (and language) discrimination

Harold Schiffman haroldfs at gmail.com
Sat Aug 11 12:00:37 EDT 2018


 New FEHA regulations widen the scope of national origin discrimination
Constangy Brooks Smith & Prophete LLP
<https://www.lexology.com/contributors/constangy-brooks-smith-and-prophete-llp>
[image: Constangy Brooks Smith & Prophete LLP logo]
<http://www.constangy.com>
USA <https://www.lexology.com/hub/usa> August 9 2018

Effective July 1, new regulations (available here
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and here
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expanded the scope of the national origin discrimination provisions of the
California Fair Employment and Housing Act. The changes are expected to
have a significant impact on California employers with large immigrant
workforces, including restaurants and hotels, and the tech and healthcare
industries.

California’s ethnic diversity is often a strength, economically and
culturally. No single ethnic group forms a majority of the state's
population, making the state a “minority-majority” state. However, managing
that diversity can be a challenge for employers. The new FEHA regulations
attempt to clarify some of the areas in which employers are likely to have
difficulty.

*National origin discrimination *

California law already prohibits discrimination on the basis of “national
origin,” but the new regulations expand the definition of this protected
category to include the following:

   - 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; and
   - Name that is associated with a national origin group.

The regulations also clarify that “national origin group” includes any
ethnic groups, geographic places of origin, and countries that are not
presently in existence. This may include micro-nations, which claim to be
independent nations, or states that are not recognized in the international
community.

Regulations prohibiting discrimination, harassment, and retaliation operate
with this expanded definition of national origin.

*Language restriction policies *

In addition, the new regulations address language restriction policies,
including “English-only” policies. Language restriction policies in
California are allowed only under very narrow circumstances: when (1) the
language restriction is justified as a “business necessity,” (2) the
language restriction is narrowly tailored, and (3) the employer has told
employees about how and when the language restriction applies and what
happens to employees who violate it.

The regulations define “business necessity” very narrowly, making it
difficult for a California employer to justify a language restriction. An
employer must establish that the policy (1) is necessary for the safe and
efficient operation of the business, (2) effectively fulfills the business
purpose it is supposed to serve, and (3) has no alternative that could
serve the same business purpose. Moreover, a language restriction policy
cannot be enacted for business convenience or based on the preferences of
customers or co-workers. It also cannot apply during employees’ non-working
time, including lunch breaks, rest periods, and unpaid employer-sponsored
events.

In summary, language restriction policies are unlikely to be justified
based on “business necessity,” which means that few language restriction
policies will comply with California law.

*English proficiency and accents*

Discrimination on the basis of an accent may qualify as national origin
discrimination, unless the accent materially interferes with the employee’s
ability to perform the job in question. In addition, an employer cannot
discriminate against a person based on his or her level of English
proficiency unless English proficiency is required to effectively fulfill
the employee’s job duties. Relevant factors include the type and degree of
proficiency and the nature and duties of the position. An employer may,
however, ask applicants or employees about their ability to speak, read,
write, or understand any language, provided that doing so is justified by a
business necessity.

If, as an example, a California retailer decided to remove employees with
Spanish or Chinese accents from positions requiring contact with customers,
that would probably violate the FEHA and the new regulations, even if the
retailer acted out of concerns about customer preference or discomfort.

*Miscellaneous provisions*

   - *Recruitment and Job Segregation:* It is unlawful for an employer to
   seek, request, or refer applicants or employees based on national origin.
   It is also unlawful to assign employees to positions, facilities, or
   geographical areas based on national origin, unless pursuant to a
   permissible defense.
   - *Height and Weight Requirements:* These could create a disparate
   impact on the basis of national origin. When disparate impact is
   established, these types of restrictions will be unlawful, unless the
   employer can demonstrate that they are job-related and justified by
   business necessity, and that there is no less discriminatory means of
   achieving the same goal.
   - *Human trafficking:* An employer may not “use force, fraud, or
   coercion to compel the employment of” or subject to adverse treatment,
   applicants or employees on the basis of national origin. Although “human
   trafficking” is usually cited in connection with coerced sexual activities,
   the concept of using “force or coercion to compel employment” could exist
   in industries such agriculture, manufacturing, garment, and food processing.

*Best practices for employers*

   - *Review your EEO policies.* Employers should make sure that their
   equal employment opportunity policies expressly prohibit harassment and
   discrimination based on national origin, using the DFEH’s expanded
   definition.
   - *Review language restriction policies and “English Only” practices.*
   Employers should consider whether such restrictions meet the requirements
   imposed by the new regulations, such as “business necessity,” and consider
   alternatives that might achieve the same goals in compliance with the
   regulations.
   - *Seek guidance from hiring and diversity professionals on cultural,
   linguistic, and ethnic differences among employees.* For example, one
   should not assume that everyone who speaks Spanish or “looks Asian” shares
   common experiences. Each nation (or micro-nation) has its own unique
   culture and political background. Ethnic stereotyping should obviously be
   avoided in all work-related contexts, including hiring, promotions,
   training, assignments, and social events.
   - *Update training materials*. Ensure that managers and supervisors get
   adequate training about national origin issues – especially “English-only”
   rules, discrimination based on accents, ethnic stereotyping, and
   participation in employee affinity groups. This could be included as part
   of a company’s harassment training, or its diversity training.



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 Harold F. Schiffman

Professor Emeritus of
 Dravidian Linguistics and Culture
Dept. of South Asia Studies
University of Pennsylvania
Philadelphia, PA 19104-6305

Phone:  (215) 898-7475
Fax:  (215) 573-2138

Email:  haroldfs at gmail.com
http://ccat.sas.upenn.edu/~haroldfs/

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