Today, we wrap up our conversation about new California regulations to keep employees and job applicants safe from national-origin discrimination. Having just taken effect on July 1, these rules describe how California employers can meet their related responsibilities.
We previously talked about the definition of “national origin” and explained what the rules say about national-origin discrimination related to language. Now, we discuss remaining subjects under the new amendments.
Job segregation and recruitment
Unless it has a permissible defense (such as job relatedness or a bona fide occupational qualification), an employer may not seek to hire people based on their national origins nor assign people to jobs or locations based on national origin.
It is an unlawful employment practice to retaliate against anyone for complaining about national-origin discrimination, for giving testimony in a related legal proceeding or for otherwise opposing such discrimination. What constitutes retaliation is viewed broadly, but the rule gives examples like an employer reporting or threatening to report immigration-status issues of the employee or a family member, or taking negative action against an employee when he or she tries to update personal information like changes in name, official employment documents, or social security number.
Consistent with other California laws supportive of working immigrants, the regulations state that national-origin protections apply equally to undocumented people. Immigration status is not relevant in a related legal proceeding, and the rules restrict employer inquiries into immigration status.
Height and weight restrictions
The regulations prohibit height or weight requirements that have a disparate impact (indirect discriminatory effect) on people of a particular national origin, unless such restrictions are job related and justified by business necessity. The employee still may show that there are less discriminatory means to satisfy the employer’s purpose for the restrictions.
The rules prohibit “force, fraud, or coercion to compel” employment or to “subject to adverse treatment” an applicant or employee based on national origin. The California Department of Fair Employment and Housing or DFEH, the state agency issuing the regulations, stated in its Initial Statement of Reasons that it wanted to clarify that human trafficking in the employment context can violate both other state and federal laws as well as state law prohibiting employment discrimination and harassment based on national origin.
The regulations clarify that both direct employer national-origin harassment as well as maintenance of a hostile working environment created by “epithets, derogatory comments, slurs, or non-verbal conduct based on national origin” or deportation threats, “mockery of an accent or a language” and more.
Every California employer should get advice from an employment lawyer on its responsibilities under the new rules. We could not cover every aspect of these regulations here and an attorney can assess how they impact each employer client.