California law has long prohibited harassment and discrimination based on national origin. However, articulating the distinction between race and national origin, and identifying conduct that may constitute national origin discrimination in particular, can be challenging. Concerned that national origin was too “opaque,” the state Fair Employment and Housing Council recently proposed new regulations to explicitly define national origin under California law and provide additional examples of prohibited practices. Following a year-long notice and comment period, these new regulations took effect July 1, 2018. See Cal. Code Regs. tit. 2, §§ 11027.1, 11028.
Newly added Section 11027.1 expressly defines national origin to include (without limitation) the following “actual or perceived” characteristics of an individual or her ancestors:
- 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 section also defines “national origin groups” to include “ethnic groups, geographic places of origin, and countries that are not presently in existence.” This definition of national origin largely tracks existing federal law. See 29 C.F.R. § 1606.1.
The more impactful changes for California employers are largely located in the revised Section 11028, which defines specific employment practices as unlawful national origin discrimination. Previously, Section 11028 spoke to English-only workplace rules, providing that such rules were permissible where “justified by business necessity” and if employees were notified of the rule and the consequences for violating it. See Cal. Code Regs. tit. 2, § 11028(d) (2017). With the amendment, this section now defines a number of other specific practices as unlawful, and specifies when and how an employer must carry the burden to defend such practices. Key new provisions deal with language restrictions, immigration-related practices, and harassment & retaliation:
- Prohibiting any policy that “limits” the use of any language in the workplace unless the employer can show the restriction is “narrowly tailored” and justified by business necessity, and making clear that customer or co-worker preferences do not suffice.
- Making clear that English-only rules are never lawful during an employee’s non-work time (e.g., meal and break periods, unpaid employer-sponsored events), with the drafters warning that such restrictions during nonworking hours could lead to wage and hour violations under California law given California’s focus on employer control as the determining factor in the compensability analysis.
- Barring discrimination based on an employee or applicant’s “accent” unless it “interferes materially” with job performance, in accordance with existing Ninth Circuit law. See Fragante v. City and County of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989).
- Subjecting English proficiency requirements to a business necessity standard tailored to the specific job position in question.
- Establishing that an employee or applicant’s immigration status is irrelevant to an employer’s liability under FEHA, and barring inquiries regarding immigration status unless the employer shows, by “clear and convincing” evidence, that such inquiry is “necessary” under federal immigration law.
- Defining unlawful retaliation to include threatening to contact immigration authorities.
- Clarifying that harassment based on national origin can include “epithets, derogatory comments, slurs, or non-verbal conduct based on national origin, including, but not limited to, threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language or its speakers may constitute harassment if the actions are severe or pervasive such that they alter the conditions of the employee’s employment and create an abusive working environment,” but that even “[a] single unwelcome act of [such] harassment may be sufficiently severe so as to create an unlawful hostile work environment.”
Section 11028(l) also makes it unlawful for an employer to “seek, request, or refer applicants or employees based on national origin” or to “assign positions, facilities, or geographical areas of employment based on national origin” unless the employer can establish some permissible defense (e.g., a bona fide occupational qualification). By way of example, the drafters opined that an employer could permissibly seek an employee of a particular national origin where the employee’s job responsibilities would include providing sensitive “know your rights” trainings to recently arrived refugees of that same national origin group who might be more inclined to participate in the training if it were conducted by a member of their national origin group.
While these new regulations are clearly effective as of July 1, they are silent as to retroactivity, despite commentators’ requests for clarification on that issue. In light of these new regulations, employers should review their policies and handbooks to identify any potentially problematic practices. They should also determine, based on their specific needs, whether any additional training is appropriate to ensure that discrimination and harassment based on national origin are sufficiently explained to and understood by managers and supervisors.