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New California rules on national-origin discrimination (part 2)

Today we continue our discussion about extensive amendments to California national-origin employment discrimination regulations that took effect on July 1, 2018. Duggan Law Corporation will be educating our employer clients about their legal responsibilities toward job applicants and employees under these new rules.

As we discussed in our previous post on this subject, harassment and discrimination based on an employee's national origin has long been unlawful under state and federal laws. The California Department of Fair Employment and Housing's new regulations that took effect July 1, however, expand and clarify for employers important aspects of this category of illegal discrimination and harassment of job applicants and employees.

Language issues

The amendments include certain language-based employment practices that would be unlawful national-origin discrimination. First, it is an unlawful employment practice to limit or forbid employees from using any particular language in the workplace. This prohibition includes an "English-only rule."

However, such restrictions may be permissible if the following criteria are met:

  • Business necessity, meaning an "overriding legitimate business purpose" requires the language restriction for "safe and efficient" business operation; the language restriction fulfills that business purpose; and no other practice would support the business purpose using "lesser discriminatory impact"
  • Narrow tailoring of the language restriction
  • Effective communication to employees about when they must observe the language restriction as well as what will happen if they break the rule

Promoting "business convenience" or customer or worker preference does not raise a language rule to the level of business necessity.

Even with the above exception, it is always unlawful to require that an employee only use English during his or her non-work time such as lunch, breaks or unpaid work events.

Discrimination on the basis of an employee's accent is unlawful unless it "interferes materially" with the person's ability to perform the tasks of the job. For example, it may be allowable not to hire someone with a heavy accent to perform a job involving verbal dictation or complex phone conversations.

Finally, the regulations consider when an employer can discriminate based on English proficiency. The answer is: only when it is justified by business necessity, defined as the presence of a requirement of a particular proficiency level to do the job. Relevant factors to consider in this context could include, but are not limited to, the nature of the position, the job duties, the "degree" and the "type" of required proficiency (for example, "spoken, written, aural, and/or reading comprehension").

Importantly, the burden is on the employer to meet these exception criteria for language restrictions or considerations-employers would be wise to move forward with extreme caution in implementing or continuing language-restriction practices, and should seek legal counsel in doing so.

In Part 3 of this series, we will elaborate on the remaining subjects in the new national-origin rules of job segregation, retaliation, recruitment, immigration status, height and weight restrictions, human trafficking and harassment.

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