Remember the travel ban? The Wall? Ramped up deportations? California is moving to counter and guard against potential negative employment consequences for foreign-born workers and more. The California Department of Fair Employment and Housing (DFEH), the agency charged with enforcing the state’s civil rights laws, is considering new regulations to implement or enhance California’s national-original discrimination statute.
The current statute, Government Code §12940, identifies national origin as a prohibited basis for discrimination, but doesn’t provide details. The DFEH is empowered to promulgate regulations interpreting and implementing this statute and others. Cal. Gov’t Code §12935(a). So what enhancements are contained in the proposed regulations? Think of the Obama-era EEOC’s National Origin guidelines. See EEOC Enforcement Guidance On National Original Discrimination (2016).
To start, the proposed regulations define “national origin” to mean a number of things, including actual or “perceived” place of birth, someone’s marriage to or perceived association with a person of a national origin group, even membership or association with an organization identified with or promoting the interests of a national origin group. Thus, a victim of national origin discrimination need not be foreign born. Association or perception will expand the pool of potential victims (and future plaintiffs).
Next, the proposed DFEH regulations describe several discrimination liability triggers intended to protect applicants and employees, including:
- Language limits or prohibitions, unless job-related, narrowly tailored, and proof of business necessity (see below);
- English-only rules will create a presumption of a violation
- This presumption can only be overcome by the employer’s showing of business necessity: that the English-only policy is necessary for safety and efficiency; that the rule fulfills its related business purpose; that no alternative would fulfill the business purpose as well and with less discriminatory effect;
- Business convenience or customer preference will not suffice as a business purpose;
- Accents, unless it materially interferes with job performance;
- English proficiency, unless needed for effective job performance and the level of proficiency fits the position;
- Foreign training and experience, subject to permissible defenses (presumably the business necessity defense would apply);
- Immigration status, unless clear and convincing evidence that federal law requirements are involved;
- Height or weight requirements, subject to permissible defenses (business necessity);
- Recruitment and Job segregation
The DFEH proposes that these regulations apply to undocumented and documented workers.
Will the DFEH adopt the proposed National Original regulations? Probably, and it might add other employer requirements and prohibitions to the final draft. Should employers of California workers be concerned about the probable new regulations? Yes. The regulations have a broad definition of “National Origin” that includes foreign and U.S. born applicants and workers, and covers direct national-origin traits (language, accents, etc.) and memberships and associations with “national-origin” related individuals and entities. Some hypothetical examples of potential liability traps:
- Harassing (or permitting harassment of) a Caucasian worker for being married to someone born in Nigeria;
- Not promoting to manager an Asian worker with an accent, because of concern that customers might not be receptive;
- The owner of a Korean restaurant who requires that all employees speak only Korean;
- A hospital’s refusal to hire a California-licensed physician because she went to medical school in Morocco.
California’s demographics mean great business opportunities and great risks of national origin discrimination and harassment:
- California is a minority-majority state (no racial/ethnic group represents a majority of the population);
- 27% of California residents are foreign born;
- 43% of residents speak a non-English language at home;
- 6% of residents are undocumented (or 25% of the country’s undocumented residents).
Given these statistics, and assuming the DFEH’s likely adoption of the national origin regulations, California employers must become familiar with the new regulations and be sure their employee policies and practices are consistent. If not, then be prepared to hear from the DFEH and/or a pro-employee lawyer.