California: FEHA Amendments Expand Protections Related to “National Origin”

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All Employers with CA Employees

EFFECTIVE

July 1, 2018

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The Office of Administrative Law recently approved amendments to the Fair Employment and Housing Act (FEHA), which include, in part, changes to the state’s anti-harassment, discrimination, and retaliation requirements related to the national origin of employees and job applicants, regardless of documented status.  These amendments go into effect July 1, 2018.

Specifically, the amendments define “national origin” to include an individual’s or their 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;
  • 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 or religious institutions typically associated with or used by persons of a national origin group;
  • Name associated with a national origin group; and/or
  • Tribal affiliation.

Moreover, national origin groups include ethnic groups, geographic places of origin, and countries that are not presently in existence.

Additionally, restrictions on using languages other than English in the workplace are only permitted if the language restriction (1) is justified by business necessity, (2) is narrowly tailored, and (3) the employer has notified its employees of the circumstances and time when the language restriction is required to be observed and the consequence for violating the language restriction. Similarly, discrimination based on a person’s accent is prohibited unless it interferes with the person’s ability to perform the job at issue. Discrimination based on English proficiency is also prohibited unless justified by business necessity, including the type and degree of proficiency required, and the nature and job duties of the position.

Employers must be cautious that workplace policies or practices do not result in national origin discrimination, harassment, or retaliation.  Examples of prohibited practices include threats of deportation, discriminating against a person for having an accent, making employment decisions based on national origin, or inquiring into a person’s immigration status unless required to do so by federal law.

Action Items

  1. Review the amended FEHA regulations here.
  2. Have managing staff trained on expanded protections related to a person’s national origin.
  3. Have policies and procedures reviewed for compliance with these new regulations.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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