CalChamber: State Proposed National Origin Regulations Too Broad

Regulations proposed by a state council to dictate how national origin is to be treated in the workplace are too broad and unsupported by any legal authority, a California Chamber of Commerce-led coalition said this week.

In comments submitted on July 17 to the California Fair Employment and Housing Council (FEHC), the CalChamber and coalition pointed out that the proposed changes to regulations implementing the state Fair Employment and Housing Act (FEHA) expand the meaning of national origin beyond current law and use language rejected by the federal Ninth Circuit Court of Appeal.

As the coalition establishes in its comments, California already has strict rules that prohibit harassment and discrimination based on protected classes, including national origin.

Proposed Regulations

The proposed regulations discuss the type of acts that may constitute national origin discrimination and are intended to provide guidance for areas where an employer might unknowingly discriminate (see Initial Statement of Reasons). The proposed regulations also discuss prohibited immigration-related practices.

The proposed regulations include:

  • Revision and expansion of rules relating to language restrictions in the workplace.
  • Explanation of rules relating to accent discrimination.
  • Prohibition against discrimination based on English proficiency, unless necessary for the position and the requirement is narrowly tailored.
  • Rules prohibiting height and weight requirements as they may lead to national origin discrimination. Employers may still assert any permissible defense.
  • A statement that an employer can’t deny employment opportunities because an individual received his/her education or training outside of the United States.
  • Immigration-related protections, such as prohibition against threatening to contact immigration authorities because an employee complained about unlawful practices.
  • Rules relating to recruitment and job segregation.

Coalition Comments

The coalition’s comments focused on three areas of the proposed regulations having the greatest impact on employers: expanded national origin definitions, language restrictions, and immigration-related practices.

Expands Definition of National Origin

The proposed definition expands national origin beyond just anyone who is, who is perceived, or who is closely associated with anyone who has characteristics of a particular national origin, and includes any person who has a “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, or mosques, or other institutions generally associated with a national group.”

This expansion is too broad and unsupported by any legal authority. Nothing within the Government Code suggests that the term “national origin” should include an individual who is a member of an association, group, school, temple, or other institution that is “generally associated” with a national group.

The coalition is concerned that under this proposed definition, an individual would be included and therefore protected under “national origin” simply by attending a group or institution that is “generally associated” with a national group.

Additionally, under this proposed definition, simply having a “parental relationship” with an individual of a national origin group would provide protection under FEHA regardless of whether that individual could establish “association.” Nothing within FEHA or Title VII of the Civil Rights Act permits the expansion of this definition to such a broad group, or to minimize the burden of proof required to establish a national origin claim.

 Language Restrictions

The FEHC proposes to adopt language from the EEOC Enforcement Guidance on National Origin Discrimination that: (1) “presumes” English-only rules violate FEHA; (2) completely bans language restrictions that are applicable during breaks, or unpaid employer-sponsored events.

The coalition explains in its comment letter that the Ninth Circuit specifically rejected the EEOC Guidance on National Origin Discrimination on this very issue. In the updated version of its guidance document, dated November 11, 2016, the EEOC does not change its guidance on this issue, but merely states in a footnote that it disagrees with the Ninth Circuit’s opinion, the coalition writes. The EEOC’s disagreement does not change the fact that the court of a federal circuit that includes California has rejected the EEOC’s guidelines.

The coalition does not believe it is appropriate for the council to adopt a standard set forth in the EEOC Guidance that has been specifically rejected by the Ninth Circuit and which the Ninth Circuit has repeatedly opined could harm the workplace. There is no California case or legislative history of FEHA to indicate that English-only rules are to be presumed discriminatory or absolutely deemed unlawful as this section of the proposed regulation requires.

Rather, the proposed regulation sections place the entire burden on the employer to justify its policies. Nothing within FEHA or any applicable case law indicates that the Legislature ever intended to eliminate the burden of proof on an employee when challenging any employment practice as discriminatory. Additionally, as the Ninth Circuit has indicated repeatedly, eliminating an employer’s discretion to manage its workplace with language restrictions such as those proposed in these regulations, could create further harm, the comments state.

Another section of the proposed regulations requires the employers to prove that the language restriction is “perfectly tailored” or “narrowly tailored” in order to satisfy business necessity. This requirement is inconsistent with a previous court ruling, the coalition comments state. The proposed regulations have the “narrowly tailored” requirement as a separate factor from the safe and efficient business operations, which is inconsistent with any authority cited.

Finally, the definition of business necessity in the proposed regulations already requires an employer to prove the policy fulfills an overriding, legitimate business purpose. It is unclear or unnecessary as to why the employer would have to separately establish the policy as “job related” too. Accordingly, coalition respectfully requests the deletion of “job-related” from the proposed regulations.

Immigration-Related Practices

These proposed regulations seek to define what constitutes retaliation with regard to immigration status.

The coalition states that there is no authority or cases in the Statement of Reason that indicate any basis to expansively define retaliation for this specific protected classification under FEHA. In laws enacted in 2013, 2014 and 2016, the Legislature has indicated that the Labor Commissioner is the appropriate agency to handle retaliation claims with regard to immigration-related practices.

Keeping Watch

The FEHC held a public hearing on its proposed national origin regulations in San Francisco on July 17. The CalChamber and its HRWatchdog blog will provide updates as soon as the council acts again on this topic.

Staff Contact: Jennifer Barrera