California employers must become aware of sweeping new state anti-discrimination regulations taking effect on Sunday, July 1, 2018. While discrimination or harassment based on national origin as a protected class has long been illegal under state law, the new rules provide employers with more detailed direction about what constitutes national-origin discrimination.
The California Department of Fair Employment and Housing (DFEH) is the state agency that issued the rules and will enforce them. DFEH conducted an extensive notice-and-comment period during which the public had the opportunity to provide input. In response, the agency made some changes to the original proposal.
DFEH notes that while the state Fair Employment and Housing Act (FEHA), the law authorizing the regulations, is similar to the federal statute against national-original discrimination, state law in this area goes further than federal law.
The anti-discrimination provisions of FEHA and its regulations apply to private and public employers with at least five employees, and the harassment provisions apply to state employers of any size. California law also prohibits employer retaliation against an applicant or employee for exercising FEHA rights.
DFEH, in its Final Statement of Reasons, explains that it is targeting both intentional discrimination and harassment as well as "policies and practices that disparately impact applicants and employees on the basis of national origin that cannot be justified by business necessity and/or for which a less discriminatory alternative could accomplish the business purpose equally well."
Disparate-impact discrimination encompasses workplace practices that result in illegal discrimination even if that was not the employer's intention.
The regulatory amendments use the concept of a "national origin group" (NOG) to help define national origin for an individual employee. NOGs can be, nonexclusively, "ethnic groups, geographic places of origin, and countries ... not presently in existence."
Examples of "national origin" include, but are not limited to:
- Having physical, linguistic or cultural characteristics of a NOG
- Marrying or associating with people in a NOG
- Affiliating with a tribe
- Associating with an organization affiliated with a NOG
- Attending schools or religious institutions used by people of a particular NOG
- Having a name associated with a NOG
The definition includes either actual or perceived characteristics of national origin. For example, if an employer discriminates against a job applicant because it thinks the applicant is a tribal member, but it turns out that the applicant is not affiliated with the tribe, the discriminatory act based on a mistaken perception of national origin is enough to make this behavior illegal.
In our next post, we will discuss how the new regulations address issues of language restriction, accents, English proficiency, retaliation, immigration status, human trafficking, harassment, height and weight restrictions, recruitment and job segregation.
In the meantime, each California employer should seek knowledgeable legal guidance from an employment law attorney so that the company can create and implement policies and practices to comply with the new regulations.