Workers Gain Greater Legal Rights Against National Origin Discrimination and Harassment

Have you faced harassment at your work for your accent, appearance, or immigration status? You may be subject to discrimination on the basis of your national origin. Employees facing discrimination for their accents, appearance, or practices related to their national origin now entitled to greater protections in California.

On July 1, 2018, new regulations from California’s Fair Employment and Housing Council (FEHC) that clarify protections from national origin discrimination went into effect. The new regulations include clarifications on the definitions of “national origin” and “national origin groups.” Additionally, the regulations describe the admissible and prohibited types of employer policies governing language restrictions in the workplace, the admissible and prohibited inquiries regarding immigration status, and the admissible and prohibited types of height and weight requirements for work.

DEFINITIONS

The new regulations clarify that the definition of “national origin” includes an individual’s 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;
• Tribal affiliation;
• 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, churches, temples, mosques, or other religious institutions ordinarily used by persons of national origin group; and
• Name that is associated with a national origin group.

The Employment Opportunity Commission (EEOC) and various courts have provided the following circumstances of the types of relational and perception-based harassment and discrimination, based on national origin that are prohibited:

• Harassment of an employee whose husband is from Afghanistan.
• Refusal to promote an employee because he attends a mosque.
• Harassment of a Hispanic person by a harasser who perceived that the individual was Pakistani.
• Co-workers repeatedly referring to an employee of Indian descent as “Taliban” or “Arab.”
• Harassment of a Sikh man wearing a turban because the harasser perceived him to be Muslim.

LANGUAGE RESTRICTIONS

One issue that employers often struggle with is how to address language restrictions in the workplace. Prior regulations provided that an employer may have an English-only policy for certain times so long as the employer can show that the rule is justified by business necessity and the employer has clearly communicated the policy to employees.

The new rules change these standards.

First, the regulations provide that it is unlawful for an employer to have a policy that limits or prohibits the use of any language in the workplace (including English-only rules), unless:

• The language restriction is justified by business necessity;
• The language restriction is narrowly tailored; and
• The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.

As a result, the new regulations establish that English-only rules violate the law unless the employer can prove the elements listed above.

“Business necessity” means an overriding legitimate business purpose such that (1) the language restriction is necessary to the safe and efficient operation of the business, (2) the language restriction effectively fulfills the business purpose it is supposed to serve, and (3) there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

Second, the new rules clarify and establish that an employer’s language restriction that merely promotes business convenience or is due to customer or co-worker preference is illegal. Moreover, the new rules makes clear that English-only rules are never lawful during an employee’s non-work time (breaks, lunch, unpaid employer-sponsored events, etc.).

ENGLISH PROFICIENCY

Discrimination based on an applicant’s or employee’s English proficiency is unlawful unless the English proficiency requirement is justified by business necessity (i.e., the level of proficiency required by the employer is necessary to effectively fulfill the job duties of the position). The new rules state that relevant factors include, but are not limited to, 1) the type of proficiency required (spoken, written, aural, and/or reading comprehension), 2) the degree of proficiency required, and 3) the nature and job duties of the position.

The new regulations clarify that it is not unlawful for an employer to request from an applicant or employee information regarding his or her ability to speak, read, write or understand any language, including languages other than English, if justified by business necessity.

RECRUITMENT AND JOB SEGREGATION

The new rules make it unlawful for an employer to assign employees to positions, facilities or geographical areas based on national origin, unless pursuant to a permissible defense. For example, an employer may not assign employees based on their national origin to a remote part of the business to restrict the employee’s public interaction or to “hide” the employee from public view unless the business can provide a permissible defense.

IMMIGRATION-BASED PRACTICES

The new regulations clarify that FEHA and its regulations apply to undocumented applicants and employees to the same extent that they apply to any other applicant or employee, and immigration status is irrelevant during the liability phase of any proceeding brought to enforce FEHA. Furthermore, the rules state that discovery or other inquiry into an individual’s immigration status shall not be permitted, unless it is shown by clear and convincing evidence, which is a difficult standard to prove, that the inquiry is necessary to comply with federal immigration law.

Finally, the rule states that specified immigration-related retaliation is against the law (such as threatening to contact immigration authorities).

HEIGHT AND WEIGHT REQUIREMENTS

The new regulations clearly state that height and weight requirements may be unlawful because they may have the effect of discriminating an individual based on national origin. If an employee shows that a height or weight requirement has a negative impact, the requirement is unlawful. However, the requirement is lawful if a height and weight requirement is job related and justified by business necessity, and its purpose cannot be achieved as effectively through other means.

According to the FEHC, there is a nexus between various national origins and certain physical characteristics. The regulations aim to prohibit height and weight restrictions that have the effect of disparately impacting certain national origin groups.

RETALIATION

The new regulations also adopt new language related to protections against retaliation based on national origin.

First, the language makes it unlawful for an employer to retaliate against any individual because 1) the individual has opposed discrimination or harassment on the basis of national origin, 2) has participated in the filing of a complaint, or 3) has testified, assisted, or participated in any other manner in a proceeding in which national origin discrimination or harassment has been alleged.

Second, the regulations specify that retaliation may include, but is not limited to, threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of the employee, former employee, applicant, or a family member (e.g., spouse, domestic partner, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, great-grandparent, grandchild, or great-grandchild, by blood, adoption, marriage, or domestic partnership) of the employee, former employee, or applicant.

Retaliation may also include taking adverse action against an employee because the employee updates or attempts to update personal information based on a change of name, social security number, or government-issued employment documents.

Similar provisions related to retaliation on the basis of immigration status already exist in the Labor Code. However, the placement of similar restrictions in these new regulations under FEHA expands liability for employers for these actions.

You have protections if any of these of these situations arise as a result of you asserting your rights.

REMEDIES

If you believe you are being harassment or discriminated against, you should speak to a lawyer right away. A lawyer can explain your rights, evaluate your situation, and assist you to decide on the best approach going forward for you. A lawyer can also make advise you to meet all of your legal deadlines for taking action, such as filing a charge of discrimination with the DFEH or filing a lawsuit. And, a lawyer can help you understand your company’s complaint process and investigation.

Here are a few other steps to consider:

• Make an internal complaint, after you review your company’s written procedures. If your company has a complaint policy, follow it. If not, ask someone in the HR department how to file a complaint of harassment or discrimination. Filing a complaint helps protect your right to file a lawsuit later, by putting the company on notice and giving it an opportunity to fix the problem.
• If you face any retaliation for filing a complaint, notify the company immediately. As noted above, retaliation is illegal — but that doesn’t mean it never happens.
• Make notes of all discriminatory or harassing incidents. Try to create a timeline of what happened, when, who was there, what was said, and any details of the incident(s). Keeping notes as events happen will help you remember the details, which may prove critical later on.
• Keep copies of evidence you are entitled to have. For example, if coworkers are sending X-rated email messages, print them out and save a copy. If someone posted pornographic pictures on your cubicle walls, take photographs. But don’t take anything that belongs to the company.

If you believe you may be subject to harassment or discrimination in the workplace due to your national origin, Ghuman Law Firm is available to provide you with a free consultation to assess whether you have a potential claim. You may contact our office either by phone at 888-647-2266 or [email protected].