On May 17, 2018, California’s Fair Employment and Housing Commission (“FEHC”) published the final text of its “Regulations Regarding National Origin Discrimination” (to be codified at 2 Cal. Code Regs. §§ 11027 & 11028). The regulations, which become effective July 1, 2018, expand the definition of “national origin” for purposes of the Fair Employment and Housing Act (“FEHA”).  Among the more notable changes, the new definition includes all “physical, cultural and linguistic” attributes of a national origin group.  The definition also now specifically includes anyone who is a member of or attends an organization, school, or religious institution associated or identified with a national origin group.  The new regulations prohibit English only policies except in certain circumstances and prohibit any inquiries into an applicant or employee’s immigration status unless an employer can demonstrate by “clear and convincing evidence” that such inquiry is required by federal law.

The new “national origin” definition incorporates the following six categories: (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. The regulations also clarify that “national origin group” includes any ethnic groups, geographic places of origin, and countries that are not presently in existence. Over the objections of many commentators who felt the Commission had overstepped, the Commission added that height and weight restrictions would be unlawful if they disproportionately affected members of one national origin group and were not justified by business necessity.

The new regulations also expand the list of “Specific Employment Practices” prohibited under the FEHA. In a change from the prior law, all language restrictions are presumed unlawful. Employers must demonstrate that any such restrictions are narrowly-tailored and justified by business necessity. For a policy to be a “business necessity” it must be necessary to the safe and efficient operation of the business and “effectively fulfill[] the business purpose it is supposed to serve.” Employers must also demonstrate there is no effective alternative to the language restriction – for example, posting signage in multiple languages. Employers may not discriminate against employees based on their level of English proficiency unless the employer can demonstrate that English proficiency is necessary for the employee’s particular job duties. Discrimination based on accent is unlawful unless it “interferes materially” with the employee’s ability to do his or her specific job.

Finally, the new regulations limit practices for verifying work eligibility. Employers may not make any inquiry into an applicant’s immigration status, including requiring documentation, unless the employer can show by clear and convincing evidence that such inquiry is required by federal law. Employers also cannot take adverse action against an employee for updating his or her name, social security number or employment documents. The regulations now specify that threatening to contact immigration or federal law enforcement authorities may be a form of harassment and/or retaliation. Under the federal Immigration Reform Control Act (IRCA), employers cannot knowingly hire, refer, recruit or employ unauthorized immigrants. IRCA mandates procedures for assuring that all employers meet requirements of verifying employment eligibility during the Form I-9 process by checking all employees’ identification documentation that establishes both identity and employment eligibility to ensure they are eligible to work in the U.S.   In addition, under IRCA if you employ four or more people, you cannot discriminate against any individual who is employment authorized on the basis of nationality origin and citizenship status, so the federal statute exempts certain small employers. Consequently, there are protections against treating immigrants unfairly that are contained in various overlapping federal and California statutes. Also, bear in mind that California recently enacted a series of laws labeling it a “sanctuary state” that created stringent protections for the work force during worksite immigration enforcement by DHS. For more information, see Surge of ICE Raids Expected in California Following State Adoption of Immigration Laws, discussing The California Values Act, and the Immigrant Worker Protection Act published on 02/15/2018. Despite concerns from commentators that the new regulations were both unnecessary and overbroad, the FEHC opined in its Statement of Reasons that the new regulations were necessary to clarify employer’s obligations.

In light of the new regulations, employers with English-only rules should review their policies to ensure that they are both narrowly tailored and necessary for a particular position. Employers should also review their employment verification practices to ensure that any work authorization inquiries are only for purposes of complying with federal law.

 Shannon Bettis Nakabayashi  contributed to this article.