California's FEHC Adopts New National Origin Discrimination Regulations

On July 1, 2018, new regulations from California's Fair Employment and Housing Council (FEHC) that clarify protections from national origin discrimination will go into effect. The new regulations are extensive and include clarifications on the definitions of "national origin" and "national origin groups," the permissible and prohibited types of employer policies governing language restrictions in the workplace, the permissible and prohibited inquiries regarding immigration status, and the permissible and prohibited types of height and weight requirements for work.

The Meaning of "National Origin" and "National Origin Groups"

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 generally used by persons of national origin group; and name that is associated with a national origin group." The Equal Employment Opportunity Commission (EEOC) and various courts have provided the following examples of the types of associational 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 Coworkers 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 The regulations also provide that "national origin groups" include "ethnic groups, geographic places of origin, and countries that are not presently in existence." In other guidance from the EEOC, the commission has explained that a geographic region may include "a region that never was a country but nevertheless is closely associated with a particular national origin group, for example, Kurdistan or Acadia."

Prohibitions Against Language Restrictions

Since 2001, California has prohibited employers from adopting or enforcing a policy that limits or prohibits the use of any language...