This post was authored by Stefanie K. Vaudreuil.
It’s time to check your policies. New DFEH regulations (California Code of Regulations, title 2, sections 11027.1 and 11028) went into effect on July 1, 2018 that provide definitions on “national origin” and “undocumented applicant or employee,” in addition to outlining specific employment practices regarding language restrictions and height/weight restrictions.
New “National Origin” Definitions
The new “national origin” definition includes the individual’s or ancestor’s actual or perceived (1) physical, cultural, or linguistic characteristics associated with a national origin group; (2) marriage to or association with persons of a national origin group; (3) tribal affiliation; (4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group; (5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and (6) name that is associated with a national origin group.
What is a “national origin group”? The new definition provides that it includes, but is not limited to, “ethnic groups, geographic places of origin and countries that are not presently in existence.” The regulations also define an “undocumented applicant or employee” as someone who “lacks legal authorization under federal law to be present and/or work in the United States.”
New Protections for “Undocumented applicants or employees”
The DFEH has established new protections for “undocumented applicants or employees,” making it unlawful to discriminate against them because of their immigration status, “unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.” The regulation provides an example of unlawful discrimination by stating that it is unlawful for an employer to discriminate against an applicant or employee because he or she “holds or presents a driver’s license issued under section 12801.9 of the Vehicle Code” (which establishes that undocumented immigrants may be eligible for a California driver’s license)
The new regulations also prohibit employers from inquiring into an applicant’s or employee’s immigration status unless it is necessary to comply with federal law. The DFEH does not identify or explain under what circumstances, however, federal law requires an employer to make such an inquiry. Like California law, federal law prohibits pre-offer inquiries into an applicant’s immigration status.
New Regulations on Employer Implemented Language Restrictions
The new regulations include an explanation of what “language restrictions” may be implemented by employers. It has been unlawful for an employer to adopt or enforce an “English-only” rule, except in limited circumstances. The new regulation creates further protection. Employers will not meet the threshold of business necessity if the “language restriction merely promotes business convenience or is due to customer or co-worker preference.” Employers also may not discriminate based upon an applicant’s or employee’s accent, “unless the employer proves that the individual’s accent interferes materially with the applicant’s or employee’s ability to perform the job in question.”
It is unlawful for the employer to establish English-only rules for employees applicable to breaks, lunch, or unpaid employer-sponsored events.
New Regulations on Height/Weight Requirements
According to the DFEH, height and weight requirements may create a disparate impact on the basis of national origin. Therefore, if the applicant or employee is able to show a disparate impact, the employer must demonstrate the requirements are job-related and justified by business necessity. Note, however, that height and weight restrictions may still be unlawful if the business requirements “can be achieved effectively through less discriminatory means.”
Compliance is Key
Employers should review their Equal Employment Opportunity policies, as well as recruitment and retention procedures, to avoid potential noncompliance with or violation of the new regulations. Importantly, if the employer uses a third party to conduct recruitment, the employer should ensure that the third party also complies with the new regulations. Individuals responsible for recruitment and hiring should be trained in the application of these new regulations.