New regulations broaden the definition of national origin and protect undocumented individuals
Recent amendments to the California Fair Employment and Housing Act (FEHA) strengthened protections provided to applicants and employees, along with undocumented individuals, on the basis of national origin. The original definition included “the individual’s or ancestors’ actual or perceived place of birth or geographic origin, national origin group or ethnicity.”
The expanded definition includes an individual’s or ancestors’ 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 a national origin group; and
• Name that is associated with a national origin group.
The Act further defines national origin discrimination to include:
• Language restriction policies, including English-only policies, unless the restriction is a business necessity or is tailored to further that business interest;
• Discrimination based on a person’s accent, unless the employer can show the accent materially interferes with the person’s ability to perform the job;
• Discrimination based on English proficiency, unless it is a business necessity;
• Height and weight requirements which may have a disparate impact on the basis of national origin, unless justified by a business necessity and/or the purpose of the requirement cannot be met by less discriminatory means;
• Recruitment or assignment of positions/facilities/geographical area, based on national origin; and
• Inquiring into a person’s immigration status or discriminating against them based on immigration status, unless required to do so under federal immigration law.