©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 179 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.212 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.”213 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. The regulations define “business necessity” narrowly as a situation where the restriction is necessary to the safe and efficient operation of the business, the restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. The regulations state that a language restriction is not justified simply because the restriction promotes business convenience or reflects customer or co-worker preference. In any event, English-only restrictions cannot apply to non-work time (such as breaks, lunch, unpaid employersponsored events). Discrimination against an employee’s accent may also be national origin discrimination, unless the accent interferes materially with the ability to perform the job in question. Requiring English proficiency may also be discriminatory, absent “business necessity.” The regulations allow employers to ask applicants or employees about their ability to speak, read, write, or understand any language (including non-English languages), but inquiries must be justified by a business necessity.214 The regulations also clarify that the FEHA forbids height and weight requirements that create a disparate impact on the basis of national origin, unless, of course, the requirements are job-related and advance a business necessity.215 Even then, the challenged requirement could be unlawful if the requirement’s purpose could be more effectively achieved with less discriminatory measures. It is also unlawful for employers to seek, request, or refer applicants or employees based on national origin to assigned positions, facilities, or geographical areas of employment, unless the employers have a “permissible defense” such as job relatedness or a bona fide occupational qualification.216 The regulations apply to undocumented applicants and employees just as they would with any other applicant. Any inquiry into an applicant or employee’s immigration status is unlawful unless there is clear and convincing evidence that the inquiry was needed to comply with federal immigration law.217 The use of derogatory language or slurs based on national origin, and threatening to contact the immigration authorities about an individual’s immigration status, also remain unlawful.218
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