Cal-Peculiarities: How California Employment Law is Different 2022 Edition

170 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com judgment screed) and its observation that hostile working environment cases involve issues “not determinable on paper.” 6.6 Special Rules Relating to National Origin FEHC regulations have clarified prohibitions against discrimination and harassment based on national origin . 199 The regulations define national origin broadly, to include not just the national origin of an individual but also the national origin of the individual’s spouse or of those with whom the individual associates, as well as a person’s perceived national origin. The expansive definition also includes an individual’s or ancestor’s (actual or perceived) physical, cultural, or linguistic characteristics associated with a national origin group, marriage to or association with a person of a national origin group, tribal affiliation, membership in or association with an organization identified with or seeking to promote the interest of a national origin group, attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group, and name associated with a national origin grou p. 200 Lest anyone doubt the expansive scope of this definition, the regulations emphasize that “national origin groups include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence. ” 201 The regulations prohibit employers from having policies that limit or prohibit the use of any language in the workplace—including an English-only rule—unless certain criteria are me t. 202 The regulations also prohibit discrimination based on English proficiency and accents , 203 p rohibit employers from inquiring into the immigration status of employees or applicants unless the inquiry is necessary to comply with federal law , 204 p rohibit height and weight requirements , 205 a nd prohibit segregation or recruitment applicants based on national origin . 206 6.6.1 English-only work rules In America generally, employers may require that employees speak only English in the workplace, unless that requirement discriminates on the basis of national origin by having an unjustified adverse impact. In California it’s different. The FEHA, without requiring any proof of an adverse impact, makes it an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace unless the employer notifies employees of the policy and justifies it by showing a “business necessity.” “Business necessity” exists only if the policy serves an “overriding legitimate business purpose” and is needed for the safe and efficient operation of the business, and there is no available alternative . 207 FEHC regulations on national origin discrimination declare it an unlawful employment practice for an employer to adopt a policy that creates an “English only” rule, unless (1) the rule is job-related and consistent with “business necessity,” (2) the rule is narrowly tailored, and (3) employees get effective notice of when and where the rule applies and what consequences result from a violation. The regulations also provide that an English-only policy is not valid simply because it promotes business convenience or reflects customer preference. Further, the regulations presume that English-only rules violate the FEHA unless the employer can prove “business necessity. ” 208 FEHC regulations permit language restriction policies—including English-only policies—only under the very narrow circumstances already set forth in the FEHA: the language restriction must be justified by “business necessity,” the language restriction must be narrowly tailored, and the employer must have told employees about how and when the language restriction applies and what happens to employees who violate it.