The California Office of Administrative law recently approved amendments to the California Fair Employment and Housing Act that, in part, clarify several different aspects of “national origin” as the term is used regarding prohibited discrimination in employment. Once formally enacted on July 1, 2018, the definition of “national origin” will be expanded from the individual’s or ancestors’ actual or perceived “place of birth or geographic origin, national origin or ethnicity” to also include the following:
♦ 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.
In addition to expanding of the definition of the term itself, what constitutes national origin discrimination will also be broadened to include the following, according to this article in Proskauer’s California Employment Law Update:
♦ Language restriction policies, including English-only policies, unless the restriction can be justified by business necessity and is narrowly tailored to further that business interest;
♦ Discrimination based on an applicant’s or employee’s accent, unless the employer can show the accent materially interferes with the applicant’s or employee’s ability to perform the job;
♦ Discrimination based on English proficiency, unless the employer can show that the proficiency requirement is justified by business necessity;
♦ Height and weight requirements (as such may have a disparate impact on the basis of national origin), unless the requirement can be justified by business necessity and the purpose of the requirement cannot be met by less discriminatory means;
♦ Recruitment, or assignment of positions/facilities/geographical area, based on national origin; and
♦ Inquiring into an applicant’s or employee’s immigration status, or discriminating against an applicant or employee based on immigration status, unless required to do so under federal immigration law.
COUNSEL TO MANAGEMENT:
These amendments add to the increasingly complex work environment for employers in California. Company policies and practices should be reviewed to ensure that the company will be in compliance with these amendments before they are enacted. If you are facing an employment discrimination claim, please contact the experts at The Saqui Law Group.