California leads the United States in foreign-born and non-English- speaking residents. According to data from the U.S. Census Bureau, almost half of all Californians speak a language other than English at home. Nearly one-third of the state’s population is foreign-born (10 million people), which accounts for about a quarter of the foreign-born population in the entire country. As a result, workplace protections addressing national origin require particular attention in the Golden State. Effective July 1, 2018, California’s Fair Employment and Housing Council (FEHC) issued new regulations under the Fair Employment and Housing Act (FEHA) that directly address issues like language restrictions at work, immigration status, and national origin discrimination and harassment.
English-Only Policies Must Satisfy Strict Test
In its new regulations, the FEHC specifically targets English-only policies and other types of language restrictions, narrowly limiting their use in the workplace. Previously, English-only rules were subject to less scrutiny. But, as of July 1, language restrictions are presumptively unlawful unless they meet a three-pronged test regarding their need and justification.
Business necessity. First, an English-only rule must be justified by a business necessity, which means an overriding legitimate business purpose that “is necessary for the safe and efficient operation of the business.” Customer convenience, coworker morale, or employer preference—formerly acceptable justifications—are no longer valid. Moreover, the business necessity prong isn’t satisfied if an alternative practice would accomplish the business purpose equally well with less discriminatory impact. The regulations plainly limit justifications for language restrictions to the legitimate safety and efficiency interests of the business when no alternative rule is feasible.
Narrowly tailored. Second, any language restriction must be narrowly tailored to meet the employer’s business purpose. Consequently, the policy should clearly delineate to whom the language restriction applies and the times, places, and circumstances when it’s in effect. For example, the regulations state that English-only rules are never lawful during nonworking time, such as breaks, meal periods, and unpaid employer-sponsored events. Attempts to restrict the language spoken by employees during nonworking time may be construed as sufficient control over them to make the time compensable.
Effective notification. Third, to be considered lawful, a language restriction must be effectively communicated to the affected employees. As noted above, the policy must clearly state where, when, and under what circumstances the language restriction applies. In addition, it must state the consequences for violating the English-only rule. To satisfy the notice requirement, consider communicating your policy in multiple ways, such as issuing a specific stand-alone policy now in addition to updating your company’s onboarding documents and employee handbooks. You should also assess your informal policies or practices (e.g., does an English-speaking manager require his workers to always communicate in English?). A rogue supervisor or poorly applied policy may lead to a national origin discrimination lawsuit if left unaddressed.
Discrimination Because of Accents and English Proficiency also Targeted
The updated regulations also identify employment discrimination based on an applicant’s or employee’s accent or proficiency in English as unlawful. An individual who is terminated (or not hired) because of an accent may have a valid discrimination claim, unless the company can prove her accent materially interferes with her ability to perform the job in question.
English proficiency requirements also raise legal risks. Such standards are unlawful unless they’re justified by a business necessity. Business necessity may be determined by factors such as whether the applicant will need to speak, write, listen to, or read English and the degree of proficiency required, along with other job duties. If challenged, you will need to demonstrate how English proficiency is necessary for the employee to effectively fulfill her job duties.
Clear and concise job descriptions articulating the communication skills required for each position should be prepared carefully. If you’re considering an English-proficiency test, you should consult counsel before implementing such a requirement. Paper and pencil testing can be a potential legal minefield for employers.
‘National Origin’ Defined Broadly under New Regulations
Language requirements and restrictions are only part of the new regulations. The FEHC has extended legal protection to a host of characteristics associated with nationality. The new regulations clarify that “national origin” means more than an individual’s birth country. Any discrimination or harassment based on an individual’s physical, cultural, or linguistic characteristics is unlawful if it’s rooted in his national origin.
For instance, although language and accent alone are not a national origin, speaking Spanish may be indicative of a person’s Mexican or Chilean origin and is therefore protected. Height and weight restrictions for a particular job may result in a disparate impact on a national origin group if they aren’t adequately justified.
Marriage to or association with persons of a particular nationality or cultural background is also protected. Adverse treatment based on tribal affiliation or participation in an organization or religious institution associated with a national origin group is equally unlawful. The regulations are purposely broad, meant to encompass the wide range of cultures, customs, relationships, and characteristics associated with an individual’s (or her ancestors’) actual or perceived ethnic origin or place of birth.
Training programs, updated handbooks, and detailed harassment and discrimination policies are effective tools for ensuring that management and employees develop a clear understanding of the scope of national origin protections. A series of top-down actions and directives showing that the company respects individual characteristics and differences are also an effective way to create a culture that mitigates against potential discrimination lawsuits.
Retaliation Based on Immigration Status Prohibited
Existing law prohibits retaliation against an employee who has opposed an unlawful practice or participated in a complaint or investigation process. The national origin regulations provide that it is unlawfully retaliatory for an employer to threaten to contact immigration authorities or law enforcement about the immigration status of an employee, a former employee, an applicant, or a family member.
It is also unlawful to take adverse action against an employee based on his attempt to update personal information because of a name change, Social Security number change, or government-issued employment document. These protections apply equally to citizens, permanent residents, and undocumented workers.
Bottom Line
You are advised to familiarize yourself with the new FEHA regulations that prohibit discrimination on the basis of “national origin” in its myriad forms. English-only policies and similar language restrictions should be limited to the narrowest of circumstances justified by business necessity. Because of the broad range of characteristics now protected as part of a person’s national origin, company policies, practices, and initiatives must be carefully revised and implemented.
To learn more about California based employment issues, join San Francisco attorney and California Employment Law Letter editor, Mark Shickman when he presents the session: California Employment Policies and Procedures Drafting Workshop at HR Comply California, October 17-19, 2018, in San Diego, California. Click here to reserve your spot today!
The authors can be reached at Duane Morris LLP in San Francisco, akbradley@duanemorris.com and njferraro@duanemorris.com.