August 16, 2018 Category: National Origin Discrimination
Employers in California are prohibited from engaging in discriminatory or harassing behavior on the basis of race or national origin. Both race and national origin have been granted legal protections under the law for decades. However, do we really have a firm grasp on what national origin discrimination is? According to the Fair Employment and Housing Council, the answer is no. In order to help a growing number of employees and applicants facing discrimination because of their national origin, the Council offered new guidelines and definitions to clarify the term.
Defining National Origin in California
New regulations, which became effective July 1, 2018, offer guidance about what a “national origin group” means for the purposes of California discrimination law. National origin group is now defined to mean “ethnic groups, geographic places of origin, and countries that are not presently in existence.”
The regulations also clearly define characteristics that are inherent to an individual’s national origin. These include:
- Physical, cultural, or linguistic characteristics with a national origin group
- Marriage or affiliation with a person of a national origin group
- Membership in an organization dedicated to promoting the interests of a national origin group
- Affiliation with a tribe
- Affiliation or participation in groups, schools, religious institutions used by a national origin group, or
- Having a name that is associated with a national origin group.
How Will New National Origin Regulations Affect the Workplace?
In addition to clarifying national origin and protected characteristics, the new regulation also targets workplace behaviors and policies that typically affect individuals who should be protected under the law. The regulations basically make it much more difficult for employers to have policies that adversely affect individuals because of their national origin.
Here are some of the ways employer practices will have to change.
1. Language Prohibitions Must be Narrowly Tailored
Some companies in California have “English only” policies and enforce them aggressively. Under the old regulations, employers were simply required to show that these language policies were necessary for business purposes. Under the new regulations, however, employers have the burden of showing that the language restrictions are narrowly tailored to a specific business interest. Any language policies must also be limited to work hours only. Language policies will not be upheld if they simply exist because the owner, employees, or customers prefer that one language.
2. Employers Can’t Discriminate Because of an Accent
Do you have an accent? Has your boss refused to promote you or give you a job that you deserve? Under the new regulations, discrimination because of your accent could be a violation of California law. Employers can only consider your accent in hiring or employment decisions if it materially interferes with the execution of your job duties.
3. Employers Can’t Call ICE to Retaliate
Employers are prohibited from retaliating against you for exercising your legal rights or complaining about discrimination. Prohibited retaliation now also includes calling immigration to report an applicant or employee.
4. Threats of Deportation Count as National Origin Harassment
Your employer is now formally prohibited from using slurs, making derogatory comments, or threatening to have you deported because of your national origin. These behaviors, if severe and pervasive, can be considered to create a hostile work environment.
5. National Origin Can’t Be a Factor in Hiring or Assigning Employees
Employers are prohibited from seeking out or referring applicants or employees because of their national origin. They are also prohibited from assigning employees to specific locations or facilities for the same reason. If an employer does this, they must have a valid explanation for the behavior.
Do you think you have been the victim of national origin discrimination? Do you want to learn more about your legal rights? Call our San Jose office today to schedule a free consultation.