BY PINKY GHUMAN
Have you faced harassment at your work for your accent, appearance or immigration status? You may be subject to discrimination on the basis of your national origin.
Employees facing discrimination for their accents, appearance or practices related to their national origin are now entitled to greater protections in California.
On July 1, 2018, new regulations from California’s Fair Employment and Housing Council (FEHC) that clarify protections from national origin discrimination went into effect.
The new regulations include clarifications on the definitions of “national origin” and “national origin groups.” Additionally, the regulations describe the admissible and prohibited types of employer policies governing language restrictions in the workplace, the admissible and prohibited inquiries regarding immigration status and the admissible and prohibited types of height and weight requirements for work.
The new regulations clarify that the definition of “national origin” includes an individual’s actual or perceived:
- 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 ordinarily used by persons of national origin group;
- Name that is associated with a national origin group.
Employers often struggle with is how to address language restrictions in the workplace. Prior regulations allowed employers to have an English-only policy.
The new rules change these standards.
The regulations provide that it is unlawful for an employer to have a policy that limits or prohibits the use of any language in the workplace, unless:
- The language restriction is justified by business necessity. For example, the language restriction is necessary to the safe and efficient operation of the business; it effectively fulfills the business purpose it is supposed to serve; and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact;
- The language restriction is narrowly tailored;
- The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.
The new rules clarify and establish that an employer’s language restriction that merely promotes business convenience or is due to customer or co-worker preference is illegal. Moreover, the new rules makes clear that English-only rules are never lawful during an employee’s non-work time.
Discrimination based on an applicant’s or employee’s English proficiency is unlawful unless the English proficiency requirement is justified by business necessity (i.e., the level of proficiency required by the employer is necessary to effectively fulfill the job duties of the position).
The new rules state that relevant factors include, but are not limited to, 1) the type of proficiency required (spoken, written, aural, and/or reading comprehension), 2) the degree of proficiency required, and 3) the nature and job duties of the position.
The new regulations clarify that it is not unlawful for an employer to request from an applicant or employee information regarding his or her ability to speak, read, write or understand any language, including languages other than English, if justified by business necessity.
RECRUITMENT AND JOB SEGREGATION
The new rules make it unlawful for an employer to assign employees to positions, facilities or geographical areas based on national origin, unless pursuant to a permissible defense. For example, an employer may not assign employees based on their national origin to a remote part of the business to restrict the employee’s public interaction or to “hide” the employee from public view unless the business can provide a permissible defense.
The new regulations clarify that FEHA and its regulations apply to undocumented applicants and employees to the same extent that they apply to any other applicant or employee, and immigration status is irrelevant during the liability phase of any proceeding brought to enforce FEHA.
Furthermore, the rules state that discovery or other inquiry into an individual’s immigration status shall not be permitted, unless it is shown by clear and convincing evidence, which is a difficult standard to prove, that the inquiry is necessary to comply with federal immigration law.
Finally, the rule states that specified immigration-related retaliation is against the law (such as threatening to contact immigration authorities).
HEIGHT AND WEIGHT REQUIREMENTS
The new regulations clearly state that height and weight requirements may be unlawful because they may have the effect of discriminating an individual based on national origin. If an employee shows that a height or weight requirement has a negative impact, the requirement is unlawful.
However, the requirement is lawful if a height and weight requirement is job related and justified by business necessity, and its purpose cannot be achieved as effectively through other means.
The new regulations also adopt new language related to protections against retaliation based on national origin.
The language makes it unlawful for an employer to retaliate against any individual because 1) the individual has opposed discrimination or harassment on the basis of national origin, 2) has participated in the filing of a complaint, or 3) has testified, assisted or participated in any other manner in a proceeding in which national origin discrimination or harassment has been alleged.
Provisions related to retaliation on the basis of immigration status already exist in the Labor Code. However, the placement of similar restrictions in these new regulations under FEHA expands liability for employers for these actions.
If you believe you are being harassment or discriminated against, you should speak to a lawyer right away. A lawyer can explain your rights, evaluate your situation, and help you decide the best approach going forward.
Pinky Ghuman is a legal attorney with Ghuman Law Firm.