FEHA – New National Origin Regulations

Posted on July 17, 2018

National Origin is considered a protected class by the California Department of Fair Employment and Housing (FEHA), but beginning July 1, 2018, FEHA has expanded the rules relating to national origin discrimination and addresses specific actions that may constitute national origin discrimination. 

Definition of National Origin

National origin previously was interpreted to mean the country from which the applicant, employee or their ancestors came. National origin is now broadly defined. It includes, but is not limited to, an individual’s or the individual’s ancestors’ 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 generally used by persons of a national origin group; and 
• Name that is associated with a national origin group. 

Employers with English Only Policies Take Note 

The new regulations expand the existing prohibition on English-only policies in the workplace. Language restriction policies (including English-only policies) are unlawful unless an employer can prove that: 

• The language restriction is justified by business necessity; 
• The language restriction is narrowly tailored; and 
• The employer has effectively notified employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the restriction. 

Employers can no longer impose a language restriction that is purely based on customer or co-worker preference. Employers can also never require that employees speak English during no-work time such as rest and meal breaks or unpaid employer-sponsored events. 
Other Considerations

FEHA Regulations also prohibit: 

• Employment decisions based on an individual’s accent unless the employer proves that the accent interferes with the individual’s ability to perform their job; 
• Requirement of English proficiency unless the employer proves the business necessity of English proficiency; 
• Requirement that the employee can speak, read, write or understand any language, including languages other than English unless if doing so is justified by business necessity; 
• Height and weight requirements that exclude individuals of a certain national origin from being considered for a position unless the employer can show that the requirement is job related and justified by business necessity; 
• Seeking, requesting or referring applicants or employees based on national origin; 
• Assigning positions, facilities or geographical areas of employment based on national origin, unless done to business necessity or any other permissible defense; and 
• Asking about an applicant’s or employee’s immigration status, or to discriminate against an applicant or employee based on immigration status, unless the employer can show by clear and convincing evidence that it was doing so to comply with federal immigration law. 

What is “Business Necessity” under FEHA? 

“Business necessity” means an overriding legitimate business purpose, such that: 

• The restriction is necessary to the safe and efficient operation of the business; 
• The restriction effectively fulfills the business purpose it is supposed to serve; and 
• There is no alternative practice to the restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. 

These new regulations protect both applicants and employees from unlawful discrimination and harassment based on national origin and also to applicants and employees who are undocumented. 

Harassment can take the form of epithets, derogatory comments, and slurs or non-verbal conduct based on national origin, including threats of deportation, derogatory comments about immigration status, or mocking an individual’s accent or language. It also is an unlawful for employers to retaliate against employees who have opposed discrimination or harassment based on national origin; participated in filing a complaint; or testified, assisted or participated in a proceeding alleging national origin discrimination. 

Best Practices for Compliance with the FEHA New Regulations

• Educate HR and managers about the new broad definition of “national origin”; 
• Identify any policies that may be affected by the new regulations, such as English-only policies and height and weight requirements. Ensure the policies demonstrate business necessity; 
• Broaden recruitment efforts to ensure that potential applicants are not being excluded based on national origin; 
• Ensure that employment decisions, including transfers, salary changes, promotions, hiring, and firing are based on objective criteria that are consistently applied; and 
• Don’t use customer preference as a justification for discrimination based on national origin.

Lauren Sims is the article’s author and the Director of Human Resources.

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