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California’s Fair Employment and Housing Act redefines ‘national origin’ and signals potential trends
By Audrie Howard on July 2, 2018 at 3:50 PM

International world flags shown on badgesIn recent years, “English-only” workplace policies have garnered increased scrutiny under employment discrimination laws on the state and national levels. Employers with these policies need to take note of recent updates to state statutes and regulations governing the lawfulness of “English-only” workplace policies and the overall broadening scope of other bases for discrimination claims.

California, for example, has recently codified existing case law protecting job applicants and employees from harassment, discrimination and retaliation on the basis of national origin. These new regulations on national origin classifications under California’s Fair Employment and Housing Act (FEHA) took effect July 1, 2018.

The new FEHA regulations define “national origin” broadly, so as to include an individual’s or ancestor’s actual or perceived:

  • Physical, cultural or linguistic characteristics associated with a national origin group;
  • Marriage to, or other association with, persons of a national origin group;
  • Tribal affiliation;
  • Membership in or affiliation with an organization identified with or seeking or promoting the interests of a national origin group;
  • Attendance or participation in schools or religious institutions generally used by persons of a national origin group; and
  • Name that is associated with a national origin group.

The regulations define the term “national origin group” to include ethnic groups, geographic places of origin, and countries not presently in existence. The regulations apply to all applicants and employees, regardless of whether they are documented.

The new FEHA regulations provide some guidance with respect to “English-only” or language restriction policies. These policies are regarded as unlawful under the FEHA, unless the policy is justified by business necessity, is narrowly tailored, and the employer has instructed employees about how and when the restriction applies as well as the consequences of violating the policy.

The “business necessity” hurdle will likely be a hard one for most California employers to clear. A business necessity is an overriding business purpose, such that: the policy is necessary for the safe and efficient operation of the business; the policy fulfills the business purpose it is intended to serve; and there is no alternative practice that would accomplish this business purpose equally well with a less discriminatory impact. Merely promoting business convenience is not sufficient, nor is customer or co-worker preference.

Discrimination based on an applicant or employee’s English proficiency is also unlawful under the new California regulations, unless an English proficiency requirement is justified by business necessity. Relevant factors for determining business necessity as to an English proficiency requirement include the type of proficiency required (i.e. spoken or written), the degree of proficiency required, and the nature and duties of the job itself.

Employers will note that the new California FEHA regulations take a more restrictive approach to “English-only” policies than guidance from the Equal Employment Opportunity Commission (EEOC). The EEOC presumes that policies requiring employees to speak only English at all times are unlawful. “English-only” policies that apply in limited circumstances are lawful where the policies are job-related and consistent with business necessity. This standard may be satisfied by an employer’s showing that requiring employees to speak a common language is sufficiently necessary to safe and efficient job performance or safe and efficient business operations to override the policy’s adverse impact, and that the policy is narrowly tailored to minimize any discriminatory impact the policy may have. The EEOC also requires that employers provide employees with adequate notice of any language restriction policies. The EEOC guidance can be found here.

Employers in all states should tread cautiously when it comes to “English-only” or other language-restriction policies. Employers who currently utilize these policies, or who may be considering implementing them, should closely evaluate the lawfulness of the policy under the EEOC’s guidance and any state-specific statutes or regulations. For questions, or to discuss how your business may be impacted by restrictions on “English-only” policies, please contact any of the attorneys in our Employment & Labor Practice Group.

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