New California regulations impact employment practices such as English-only policies, height and weight requirements, and documents applicants or employees may be required to provide for employment. California’s Fair Employment and Housing Council’s new regulations focused on preventing national origin discrimination go into effect July 1, 2018. Employers should carefully review the new regulations to ensure policies are compliant and managers are following the new requirements. It is also a good reminder for employers to review handbooks and policies at this mid-year point. This Friday’s Five focuses on obligations created under the new FEHC regulations:
1. Regulations clarify definition of “national origin” and other terms.
The regulations set forth that “national origin” includes, but is not limited to, the individual’s or ancestors’ 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 generally used by persons of a national origin group; and
- name that is associated with a national origin group.
The regulations also define “national origin groups” to include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.
“Undocumented applicant or employee” means an applicant or employee who lacks legal authorization under federal law to be present and/or to work in the United States.
2. New regulations on English-only policies.
The FEHC regulations make it an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace, such as an English-only rule, unless:
(A) The language restriction is justified by business necessity;
(B) The language restriction is narrowly tailored; and
(C) The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.
A “business necessity” means an overriding legitimate business purpose, such that:
(A) The language restriction is necessary to the safe and efficient operation of the business;
(B) The language restriction effectively fulfills the business purpose it is supposed to serve; and
(C) There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.
It is not sufficient that the employer’s language restriction merely promotes business
convenience or is due to customer or co-worker preference. In addition, English-only rules violate these rules unless the employer can prove the elements listed above.
Finally, the regulation makes it clear that English-only rules are never lawful during an employee’s non-work time, such as during breaks, lunch, unpaid employer-sponsored events.
3. Height and weight requirements may be discriminatory.
The FEHC believes that an employer’s requirement that certain positions in a company must meet certain height and weight requirements may have the effect of creating a disparate impact on members of certain national origins. The regulations explain that if an adverse impact is established, such requirements are unlawful, unless the employer can demonstrate that they are job related and justified by business necessity. Where such a requirement is job related and justified by business necessity, it is still unlawful if the applicant or employee can prove that the purpose of the requirement can be achieved as effectively through less discriminatory means. As a side note, earlier in 2018 a California court held that obesity can qualify as a disability under California law as set forth in my prior article here.
4. Employers cannot require applicants or employees to present driver’s license unless certain exceptions apply.
Under the regulations, employers may only require an applicant or employee to “hold or present” a license issued under the Vehicle Code only if (1) the possession of a driver’s license is required by state or federal law, or (2) if the possession of a driver’s license is “otherwise permitted by law.” The regulations set forth that an employer’s policy requiring applicants or employees to present driver’s license that is not applied uniformly to all employees or is inconsistent with a legitimate business reason would violate the law. For example, if the possession of a driver’s license is not needed to perform an essential function of the position.
5. Anti-retaliation provisions.
The regulations explain that it is an unlawful employment practice to retaliate against any individual because the individual has opposed discrimination or harassment on the basis of national origin, has participated in the filing of a complaint, or has testified, assisted, or participated in any other manner in a proceeding in which national origin discrimination or harassment has been alleged.