The new regulations apply regardless of documentation status.
California has long been a leader when it comes to laws protecting employees from discrimination, harassment, and retaliation. Its latest addition to the Fair Employment and Housing Act (FEHA), effective July 1, 2018, is another example of how the state is ahead of the curve in matters of anti-discrimination law.
According to a California employment discrimination attorney, the new regulations expand the definition of national origin to include an individual or ancestor’s actual or perceived:
- physical, cultural, or linguistic characteristics associated with a national origin group;
- marriage to or association with person of a national origin group;
- tribal affiliation;
- membership in or association with an organization identified with or seeking to promote the interest 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 associated with a national origin group.
Under these regulations, “national origin groups include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.” While this may seem a bit absurd — to include countries that are not currently in existence — it is simply a matter of common sense. In recent years, several countries have come into existence, include South Sudan, Kosovo, Montenegro and East Timor. Since 1990, a total of 34 new countries have come into existence, primarily from former Soviet bloc countries. Including “countries that are not presently in existence” in the regulations takes into account the possibility that more new countries may form.
As an employment discrimination attorney can explain, the new regulations address the ability of employers to restrict languages spoken into the workplace. Among other requirements, an employer would have to show that a language restriction (such as an English only policy) was justified by business necessity. That means that (1) the restriction must be necessary to the safe and efficient operation of the business; (2) the restriction effectively fulfills the business purpose it is designed to serve; and (3) there is no alternative to the restriction that would accomplish the business purpose equally with a less discriminatory impact.
The new FEHA regulations also indicate that discriminating against an employee’s accent may be national origin discrimination. Similarly, requiring English proficiency may be a form of discrimination, unless there is a business necessity. Height and weight restrictions that largely impact members of a particular national origin, excluding them from a position, are also forbidden under the new regulations.
While these new regulations are complicated, the bottom line is that they are generally good for employees. Customer preference cannot be used as a justification for discrimination based on national origin, and employers cannot put in place policies that discriminate on workers based on their national origin. For example, unless there is a business necessity, an English-only policy might be deemed discriminatory. If you believe that your employer has discriminated against you on the basis of your national origin, a skilled employment discrimination attorney can help.
At PLBH, we are skilled at helping clients who have suffered employment discrimination. We stay on top of the changing law, including updates to the FEHA and California case law. Contact our firm today at (800) 435-7542 or info@plblaw.com to schedule an initial consultation with a California employment discrimination attorney.