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California Fair Employment and Housing Act Expands Protections against National Origin Discrimination

2018-07-17

English-Only and other language restrictions banned except in limited circumstances

On July 1, 2018, the California Fair Employment and Housing Council (FEHC) expanded the Fair Employment and Housing Act’s (FEHA) protections against national origin discrimination.  The expanded FEHA prohibits the following:

  1. requiring that a specific language be spoken in the workplace.  Language restrictions must be
    • justified by business necessity,
    • narrowly tailored, and
    • communicated to employees of when the restriction is in place and the consequence for violating it.
  2. requiring a certain level of language proficiency.   English proficiency requirements must be justified by business necessity using a multi-factor test (consideration of the “type of proficiency required (e.g. spoken, written, aural and/or reading comprehension), the degree of proficiency required, and the nature and job duties of the position."3. using pre-textual citizenship requirements as a precondition to employment, and
  3. threatening to contact or actually contacting immigration authorities or law enforcement in retaliation for engaging in protected activities.
The Act also expands the definition of national origin to include the individual’s or the individual’s ancestors’ actual or perceived:
  1. physical, cultural or linguistic characteristics associated with a national origin group,
  2. marriage to or association with persons of a national origin group,
  3. tribal affiliation,
  4. membership in or association with an organization identified with or seeking to promote the interests of a national origin group,
  5. attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group, and
  6. name that is associated with a national origin group.
With regard to language restrictions, employers cannot rely on business convenience or customer or co-worker preference to justify a restrictive language policy.  Any restrictions are strictly prohibited during an employee’s free time during meals, rest breaks or unpaid employer events.  Discrimination against employees or applicants based on accents (unless they “interfere materially” with the ability to perform the job) is also prohibited. 

 Also addressed in the expanded Act is:
  1. a protection against retaliation,
  2. a ban on inquiries about immigration status
  3. an anti-human trafficking provision which states that it is unlawful for an employer “to use force, fraud, or coercion to compel the employment of, or subject to adverse treatment, applicants or employees on the basis of national origin.”
  4. a restriction against an employer to:
    • harass an applicant or employee on the basis of their national origin, and
    • “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 pursuant to a permissible defense.”
California employers should ensure that these requirements are incorporated in their EEO policies covering applicants and employees.

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.