By: Philip A. Toomey, Esq.
The California Office of Administrative Law has approved new regulations that took effect on July 1, 2018. Although California already has strict rules that prohibit harassment and discrimination based upon protected classes (including national origin), these new regulations significantly expand those rules. The new regulations protect both applicants and employees, and include individuals who are undocumented.
Definition of National Origin
The regulations adopt a broader definition of the term “national origin.” The definition now includes an individual’s or ancestor’s 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; and
- Name that is associatedwith the national origin group.
Prohibited Practices or Policies
The regulations take a fairly broad read of certain policies or practices that may constitute national origin discrimination. The following are some examples that could constitute impermissible discrimination:
- Language restriction policies, including English-only policies. Under the new regulations, these policies are unlawful unless the restriction is justified by legitimate business necessity and are narrowly tailored. The employer also has an obligation to notify employees of the restrictions and the consequences for violating it. The regulations also state that English-only policies are never permitted during non-work time, such as meal and rest breaks and unpaid employer sponsored events;
- Discrimination based upon an applicant or employee’s accentis unlawful unless the employer can show a legitimate business purpose and that the accent materially interferes with the applicants or employees’ ability to do their job;
- The employer cannot discriminate against an employee or applicant based upon their English proficiency, unless the employer has an objective standardfor such proficiency and can show that proficiency is justified by legitimate business necessity;
- The new regulations state that height and weight requirements may have a disparate impact on the basis of national origin. The employer is obligated to police such requirements, and ensure that the disparate impact does not occur. If disparate impact occurs, the employer must show the requirements are job-related and consistent with legitimate business necessity, and that the purposes of such requirements cannot be met by less discriminatory means;
- It is an unlawful business practice to recruit applicants or employees based upon national origin, or to assign positions, facilities or geographical areasof employment based upon national origin;
- An employer is prohibited from inquiringinto an applicants’ or employees’ immigration status, or discriminating against an applicant or employee based on immigration status, unless required to do so by federal immigration law. Undocumented applicants and employees are specifically protected to the same extent as any other applicant or employee (i.e., prohibited race or gender discrimination).
Obviously, the regulations may impact other specific practices and policies adopted by employers due to unique demands of a particular workplace. Compliance with the new regulations and unique workplace issues will be decided on a case-by-case basis. The regulations do not attempt to provide guidance for all situations. California public policy continues to expand and directly impact employers and the workplace. Compliance with this ever-expanding public policy will impact the cost of doing business in California.
These new regulations were discussed in some greater detail in a recent Leech Tishman Employment Practice Group webinar. For more information on that presentation, please contact Leech Tishman’s Employment Practice Group.
Leech Tishman’s Employment Practice Group can help clients ensure compliance with California’s complex and technical employment laws and can assist clients with defending against civil or administrative actions.
If you have any questions regarding California’s unique employment laws or these employment law updates, please contact Philip Toomey. Phil serves as Leech Tishman’s West Coast Business & Employment Client Relations Partner and practices in the firm’s Employment, Corporate, Litigation and Real Estate Practice Groups. Phil is based in the Leech Tishman’s El Segundo, CA office. He can be reached at 424.738.4400 or email@example.com.
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