California’s Fair Employment and Housing Council has released new regulations that will go into effect on July 1, 2018 that deal with employment discrimination based on national origin. Broadly, it offers clarification of definitions for “national origin”; what kinds of policies are allowed pertaining to language restrictions at work; what types of inquiries can be made about immigration status by employers; and the viability of height and weight requirements for work.
Definition of National Origin
Under the new regulations, “national origin” refers to an individual’s actual or perceived characteristics associated with a national origin group; marriage or association with people of a national origin group; tribal affiliation; membership in an organization that promotes the interests of a national origin group; attendance at institutions used by people of a national origin group (e.g. schools or mosques); and name associated with a national origin group. Examples of illegal activities include harassing an employee because they are married to someone from Afghanistan, not promoting someone because he goes to a mosque, or calling someone “Taliban” or “Arab” who is actually from India.
Employer Language Restrictions
The new law increases the requirements placed on employers when they have policies that restrict languages allowed in the workplace, as an employment lawyer trusts can explain. Specifically, the employer now has to meet another burden, and show that the restriction is “narrowly tailored,” which basically means they have to go beyond just a business convenience or customer or worker preference. Moreover, the law is geared especially toward “English-only rules.” These “rules” are presumed to be illegal, now, unless the employer can show that it is a business necessity that is narrowly tailored and was explained to the employees.
Employers Cannot Inquire About Employee’s Immigration Status (Unless Necessary to Comply with Federal Immigration Law)
Under the regulations, employers generally cannot ask about an employee’s immigration status. The only reason they can is when there is clear and convincing evidence that it is necessary to comply with federal immigration laws. An employer, further, cannot retaliate against an employee based on immigration status.
Height and Weight
Height and weight requirements for a job can be unlawful because they function as a proxy for national origin discrimination. The reason for this rule is that there can be a disparate impact that correlates with national origin. The employer must show that the height or weight requirement is justified as a business necessity.
Employers Should Adopt Practices to Comply, and Employees Should Note Violations
Both employees and employers should remain abreast of such laws, in California and in other states, as laws designed to protect workers come into play during a context of a heightened federal focus on workers who are or appear to be recent immigrants and could be subject to discrimination based on actual or perceived national origin.