What is “National Origin” Discrimination?

New California Regulations Seek to Clarify Definitions and Workplace “English Only” Rules

New regulations from the California Fair Employment & Housing Council clarify many aspects of employment discrimination related to national origin discrimination. While national origin discrimination is covered by Title VII of the Civil Rights Act at the Federal level and has long been prohibited by California law as well, the new rules provide a level of detail and clarity not seen previously at either level. The regulations also cover undocumented immigrants and immigration-related practices, as well as workers with limited English proficiency and workplace “English only” policies. See more about the new regulations below, and contact an experienced California employment law attorney if you are an employer or employee with questions about national origin protections and discrimination under the new rules.

What is National Origin?

Without giving a comprehensive definition of National Origin, the regulations specifically include any of the following characteristics related to individuals or their ancestors, whether real 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
• Having a name that is associated with a national origin group

“National origin groups” are defined to include ethnic groups, groups of people identified by geographic places of origin, and groups of people from countries that do not exist any more.

In addition to being protected against discrimination based on national origin, the new rules make it clear that harassment based on national origin is illegal as well. Such harassment could include epithets, derogatory comments, slurs, mocking an accent, threatening deportation, etc. Harassment can be found when the conduct is so severe or pervasive that it alters the working conditions and creates an abusive working environment. Even just one instance of unwelcome harassment can be severe enough to create an unlawful hostile work environment.

The new regulations also point out that height or weight requirements could have a disparate impact on people on the basis of their national origin, in which case the employer would have to demonstrate the requirements are job-related and justified by business necessity. Even so, if an applicant or employee could prove the employer could meet its need just as effectively through less discriminatory means, then the requirement will be held unlawful.

English Only Rules Revisited

Under prior regulations, employers were allowed to have workplace policies that required employees to only speak English at certain times if the rule was justified by business necessity and if employees were informed when and where only English could be spoken and the consequences of violating the rule. The new Regulations turn the old rules on their head by making it an unlawful employment practice for an employer to limit or prohibit the use of any language in the workplace or adopt an English-only rule unless the restriction is 1) justified by business necessity, 2) narrowly tailored, and 3) the employees have been effectively notified of the rule and its consequences.

The new regulations also go further by providing a strict definition of business necessity for a language restriction. Under the new rules, “business necessity” means an overriding legitimate business purpose that is a) necessary to the safe and efficient operation of the business, b) the business purpose served by the language restriction is effectively fulfilled by it, and c) “there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.” Just because a language restriction might promote business convenience or match the preference of customers or co-workers is not sufficient to justify business necessity.

The burden is on the employer to show that an English-only rule meets all the requirements of the revised regulations. Further, the new rules make it clear that employees cannot be language-restricted during non-work time, including meal periods, rest breaks, unpaid employer-sponsored events, and the like.

Accents and English Proficiency

Under the new rules, an employer cannot discriminate against an applicant or employee based on the person’s accent unless the employer can prove the accent “interferes materially” with the person’s ability to do the job. Likewise, an employer cannot discriminate against an applicant or employee based on English proficiency (spoken, written, aural, reading comprehension) unless justified by business necessity (necessary to effectively perform the job). An employer is allowed under the rules to inquire about an applicant’s or employee’s ability to speak, read, write or understand any language, including English, if justified by business necessity.

Stronger Protections for Undocumented Immigrants

Yet another aspect of the new regulations is to make clear that undocumented workers are protected to the same extent as other applicants or employees regarding lawful and unlawful employment practices. The rules make clear that it is illegal to ask about immigration status or discriminate based on immigration status, unless the employer can show by clear and convincing evidence that it is required to do so to be in compliance with federal immigration law.

If you are a San Francisco employer or employee needing personal assistance navigating the new rules, revising company policies or pursuing a discrimination claim, contact the Richard Koss Bay Area employment law attorneys at 650-722-7046 on the San Francisco Peninsula, or 925-757-1700 in the East Bay.