It’s common knowledge among employment law practitioners that the Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against employees on the basis of their national origin. (See Gov. Code, § 12940, subd. (a).)

What’s perhaps less well known are the myriad other protections related to national origin that FEHA and its implementing regulations contain. Here’s a primer on those protections that’ll keep you fully informed when representing your clients.

Retaliation and Harassment

As with other protected categories such as race and sex, employers may not harass employees on the basis of national origin. (Gov. Code, § 12940, subd. (j)(1).) The regulations helpfully provide a (non-exhaustive) list of actions that can constitute harassment in this context: the use of epithets, derogatory comments, slurs, threats of deportation, or mockery of an accent, a language, or its speakers. (Cal. Code Regs., tit. 2, § 11028, subd. (j).) Further, a single unwelcome act of harassment may be sufficiently severe so as to create an unlawful hostile work environment. (Ibid.)

Similarly, the regulations supplement FEHA’s general prohibition against retaliation (Gov. Code, § 12940, subd. (h)) by providing examples of actions constituting unlawful retaliation on the basis of national origin, e.g., threatening to contact immigration authorities about the immigration status of the employee. (Cal. Code Regs., tit. 2, § 11028, subd. (e).)

Immigration Status

Speaking of immigration status, there are several protections on that front. First, an employee’s immigration status is irrelevant during the liability phase of a FEHA case. (Cal. Code Regs., tit. 2, § 11028, subd. (f)(1).) Second, discovery into an applicant’s or employee’s immigration status is prohibited unless the person seeking the discovery shows by “clear and convincing evidence” that it’s necessary to comply with federal immigration law. (Cal. Code Regs., tit. 2, § 11028, subd. (f)(2).) And third, there’s a general directive that an employer may not discriminate against an employee because of their immigration status unless doing so is necessary to comply with federal immigration law. (Cal. Code Regs., tit. 2, § 11028, subd. (f)(3).)

Driver’s License for Undocumented Individuals

Another protection is tucked away in Government Code section 12926, one of FEHA’s two definitional provisions. Subdivision (v) states that national origin discrimination includes discrimination on the basis of possessing a driver’s license granted under Vehicle Code section 12801.9, which permits undocumented individuals to obtain a California driver’s license. (See Cal. Code Regs., tit. 2, § 11028, subd. (g).) In addition, an employer may not require a person to present a driver’s license, unless doing so is required or permitted by law. (Veh. Code, § 12801.9, subd. (h)(2)(A).)

Keep in mind, however, that these protections do not obviate an employer’s duty under federal law to obtain documentation evidencing an applicant’s identity and ability to work in the United States. (Veh. Code, § 12801.9, subd. (h)(2)(B).)

Languages and Accents

There are several protections relating to languages and accents.

First, an employee may not adopt or enforce a policy that limits or prohibits the use of any language in the workplace, such as an “English-only” rule, unless the restriction is justified by business necessity, is narrowly tailored, and the employer has notified employees of when and where the restriction must be observed and the consequence for violating it. (Cal. Code Regs., tit. 2, § 11028, subd. (a)(1).) But note that “English-only” rules are always unlawful during nonwork time, such as during breaks and lunch. (Cal. Code Regs., tit. 2, § 11028, subd. (a)(4).)

Second, discrimination based on an employee’s English proficiency is prohibited unless justified by business necessity, i.e., the level of proficiency required by the employer is necessary to effectively fulfill the job duties of the position at issue. (Cal. Code Regs., tit. 2, § 11028, subd. (c).)

Third, discrimination based on an employee’s accent is prohibited unless the employer can show that the accent materially interferes with the employee’s ability to perform the job in question. (Cal. Code Regs., tit. 2, § 11028, subd. (b).)

Citizenship Requirements

An employee may not institute any citizenship requirements that are simply pretext for discrimination (or have the purpose or effect of discriminating) against applicants or employees on the basis of national origin or ancestry. (Cal. Code Regs., tit. 2, § 11028, subd. (h).)

Human Trafficking

An employer may not use force, fraud, or coercion to compel the employment of, or subject to adverse treatment, applicants or employees on the basis of national origin. (Cal. Code Regs., tit. 2, § 11028, subd. (i).)

Height/Weight Requirements

An employer may not institute height or weight requirements that have the effect of creating a disparate impact on the basis of national origin unless the employer can demonstrate that they are job related and justified by business necessity. But even then such requirements are job related and justified by business necessity, they are still unlawful if their purpose can be achieved as effectively through less discriminatory means. (See Cal. Code Regs., tit. 2, § 11028, subd. (k).)

Job Segregation

Finally, an employer may not assign positions, facilities, or geographical areas of employment based on national origin. (Cal. Code Regs., tit. 2, § 11028, subd. (l).)

For further discussion of national origin discrimination, check out CEB’s Wrongful Employment Termination Practice, chapter 1.

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