New California Law Defines “National Origin” Employment Discrimination

California’s Fair Employment and Housing Act (FEHA) requires employers to prevent harassment in the workplace and avoid discrimination in employee hiring, promotions, and compensation on the basis of:

• Ancestry, color, national origin, or race
• Physical or mental disability, medical condition, or genetic information
• Sex, gender, gender identity, gender expression, or sexual orientation
• Age
• Marital status
• Military and/or veteran status

The California Department of Fair Employment and Housing is charged with enforcing this civil rights law and issuing regulations that clarify exactly what businesses must do to comply with the law.

One of the latest regulations, which takes effect July 1, 2018, clarifies the definition of the term “national origin” and thus the kinds of employer actions that would be considered national origin discrimination.

The following individual attributes are protected under the category of national origin: (1) Physical, cultural, or linguistic characteristics, such as a person’s name or speaking with an accent, (2) Tribal affiliation, such as Navajo, (3) Association with people of a national origin group, through marriage or membership in an association, (4) Participation in schools or religious groups associated with a national origin.

Any harassment or discrimination based on such characteristics would be against the law and could be the basis for an employee to take legal action against an employer.

Here are a few examples of employer actions that could be considered national origin discrimination:

• Refusing to employ or promote someone or terminating an employee, because they speak English with an accent, unless it materially impairs the ability to do the job.
• Requiring employees to meet certain height and weight requirements, which may result in bias against a national origin group, unless there is a specific business necessity that cannot be met by less discriminatory means.
• Asking questions in a job interview related to national origin, such as what tribe the candidate belongs to, what kind of accent they have, where they were born, or whether English was their first language.
• Denying employment opportunities because someone was educated in another country.

It is natural to be concerned about how a new employee will fit in with your existing team. However, employers must be extremely careful to avoid giving the impression that they might discriminate on the basis of national origin or any other legally protected attribute. If you need advice prior to terminating an employee who falls into one or more protected classes, or if you have had an employee complain about being harassed by co-workers because of their national origin, seek counsel from an experience Silicon Valley employment attorney. The lawyers at SAC Attorneys LLP have extensive experience helping businesses with a wide range of employment, discrimination, and harassment disputes. To schedule a free consultation, call our office at (408) 436-0789.

Sources:

• Employees and job applicants are protected from bias