Ann K. Bradley
Nicholas J. Ferraro
California leads the United States in foreign-born and non-English-speaking residents. According to data from the Census Bureau, almost half of all Californians speak a language at home other than English. 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 concerning national origin require particular attention in the Golden State. Effective July 1, 2018, California’s Fair Employment and Housing Council has 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 Three-Part Test
In its new regulations, the Fair Employment and Housing Council (“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 lower scrutiny. But, as of July 1, 2018, language restrictions are presumptively unlawful unless they meet a three-pronged test regarding the need and justification for the policy.
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 Customer convenience, coworker morale, or employer preference—formerly acceptable justifications—are no longer valid.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 is not satisfied if an alternative practice would accomplish the business purpose equally well with a lesser discriminatory impact. The regulations plainly limit language restriction justifications to the legitimate safety and efficiency interests of the business, only when no alternative rule is feasible.
Narrowly Tailored
Second, any language restriction must be narrowly tailored to meet the business purpose. As such, employer policies should clearly delineate to whom the language restriction applies, and the times, places, and circumstances when the language restriction is in effect. For example, the regulations state that English-only rules are never lawful during an employee’s non-work time, such as breaks, meal periods, and unpaid employer-sponsored events. Attempts to restrict the language spoken during these non-working times may be construed as sufficient control over the employee to make the time compensable.
Effective Notification
Third, to be considered lawful, a language restriction must be effectively communicated to affected employees. As noted above, policies must clearly state where, when, and under what circumstances the language restriction applies. In addition, workplace policies must state the consequences for violating the English-only rule. To satisfy notice requirements, employers should consider multiple communication methods, such as the issuance of a specific, stand-alone policy in July 2018, in addition to updates to company onboarding documents and employee handbooks. Employers should also assess informal policies or practices, such as whether an English-speaking manager requires his workers to always communicate in English. A rogue supervisor or poorly applied policy may give rise to a national origin discrimination lawsuit if unaddressed.
Discrimination Regarding Accents and English Proficiency Also Targeted
Employment discrimination based on an applicant’s or employee’s accent or English language proficiency is also identified as unlawful in the updated regulations. An individual who is terminated (or not hired) because of an accent may have a valid discrimination claim against the company, unless the employer can prove the individual’s accent materially interferes with the employee’s ability to perform the job in question.
English proficiency requirements also raise legal risks. Such standards are unlawful unless 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 for the position. If challenged, the employer will need to demonstrate how the language proficiency is necessary for the employee to effectively fulfill the job duties of the position. Clear and concise job descriptions articulating the communication skills required for a position should be prepared carefully. An employer considering an English-proficiency test should consult counsel prior to implementing this requirement, as 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 extended legal protection to a host of characteristics associated with a person’s 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, and/or linguistic characteristics is unlawful if rooted in his or her 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 not 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, intending to encompass the wide range of cultures, customs, relationships, and characteristics associated with an individual’s or ancestors’ actual or perceived ethnic origin or place of birth.
Training programs, updated handbooks, and detailed anti-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 individual characteristics and differences are respected within the company 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, former employee, applicant or family member. It is also unlawful to take adverse action against an employee based on the employee attempting to update personal information based on a name change, social security number, or government-issued employment document. These protections apply equally to citizens, permanent residents, and undocumented workers.
Bottom Line
Employers are advised to familiarize themselves with the new FEHA regulations that prohibit discrimination on the basis of “national origin” in its myriad of forms. English-only polices 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 one’s national origin, company policies, practices, and initiatives must be carefully revised and prepared in light of the new regulations.
Ann K. Bradley and Nicholas J. Ferraro are attorneys in the firm’s Employment, Labor, Benefits and Immigration Practice Group in the San Francisco office.
Reprinted by permission.