Federal law already prohibits discriminating against someone based on their national origin. California law offers additional protections, and in 2018, it supplemented these protections with additional regulations. These regulations apply almost unformly, regardless of immigration status – in other words, they protect undocumented workers almost as much as they protect US citizens. Your company could face great legal liability if you are unaware of the law in this area. 

Expanded Definition of “National Origin”

The definition of the term “national origin” has been expanded and made more specific, in order to make it easier to include conduct that might not have been actionable under previous law. “National origin” now includes (but is not necessarily limited to):

  • Physical characteristics;

  • Cultural characteristics;

  • Linguistic characteristics, such as a particular accent or name;

  • Marriage to a person of a particular national origin;

  • Association with people of a particular national origin;

  • Membership in an organization that seeks to promote the interests of people of a particular national origin; or

  • Participation in organizations, such as a mosque, that is associated with a national origin.

Language Use Restrictions

“English language only” policies are highly suspect. They must be (i) justified by a business necessity (more than just a convenience) that has been clearly explained to employees, and (ii) narrowly tailored to achieve their intended purpose. English language only restrictions cannot apply to lunch breaks, etc. English language proficiency requirements must be justified in the same way that “English language only” policies are.  

Other Prohibited Acts

The new regulations contain many restrictions, a partial list of which appears below:

  • De facto segregation: Assigning all employees of a certain national origin to a particular company office, for example.

  • Height and weight requirements: These are suspect if they result in de facto segregation by national origin, although they can be justified under certain circumstances.

  • Harassment: Acts such as derogatory comments, slurs, imitation of an accent or non-verbal conduct can be characterized as harassment under the 2018 regulations.

  • DIscrimination based on immigration status, unless the employer has “clear and convincing evidence” that such discrimination is necessary to comply with federal immigration law.

Steps You Can Take

You should take the following steps, at a minimum, to ensure compliance with the 2018 regulations:

  • Update your company’s equal employment opportunity (EEO) policies to reflect the content of the new regulations, and make sure that everyone has access to the updated version.

  • Conduct training sessions for your employees. Training should include more than just a bland repetition of the regulations – it should include hypothetical examples of discrimination and harassment as well as (to the extent possible) real-world examples. 

  • Contact a California employment lawyer for advice on how the new regulations might exert a special impact under your company’s particular circumstances.

Be Proactive

If you have concerns about your legal risks related to national origin discrimination, or questions on how to comply with state and federal law on this issue, call CKB Vienna or contact us online to schedule a consultation where we can discuss your concerns with you. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.

If you are concerned about your legal risks due to discrimination of national origin, please call CKB Vienna LLP today. Learn how we can help you!