California adopts new regulations clarifying national origin discrimination employment law and litigation

California law has long prohibited harassment and discrimination based on national origin. However, articulating the distinction between race and national origin, and identifying conduct that may constitute national origin discrimination in particular, can be challenging. Concerned that national origin was too “opaque,” the state Fair Employment and Housing Council recently proposed new regulations to explicitly define national origin under California law and provide additional examples of prohibited practices. Following a year-long notice and comment period, these new regulations took effect July 1, 2018. See Cal. Code Regs. tit. 2, §§ 11027.1, 11028.

The more impactful changes for California employers are largely located in the revised Section 11028, which defines specific employment practices as unlawful national origin discrimination.

Previously, Section 11028 spoke to English-only workplace rules, providing that such rules were permissible where “justified by business necessity” and if employees were notified of the rule and the consequences for violating it. See Cal. Code Regs. tit. 2, § 11028(d) (2017). With the amendment, this section now defines a number of other specific practices as unlawful, and specifies when and how an employer must carry the burden to defend such practices. Key new provisions deal with language restrictions, immigration-related practices, and harassment & retaliation:

• Making clear that English-only rules are never lawful during an employee’s non-work time (e.g., meal and break periods, unpaid employer-sponsored events), with the drafters warning that such restrictions during nonworking hours could lead to wage and hour violations under California law given California’s focus on employer control as the determining factor in the compensability analysis.

Clarifying that harassment based on national origin can include “epithets, derogatory comments, slurs, or non-verbal conduct based on national origin, including, but not limited to, threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language or its speakers may constitute harassment if the actions are severe or pervasive such that they alter the conditions of the employee’s employment and create an abusive working environment,” but that even “[a] single unwelcome act of [such] harassment may be sufficiently severe so as to create an unlawful hostile work environment.”

Section 11028(l) also makes it unlawful for an employer to “seek, request, or refer applicants or employees based on national origin” or to “assign positions, facilities, or geographical areas of employment based on national origin” unless the employer can establish some permissible defense ( e.g., a bona fide occupational qualification). By way of example, the drafters opined that an employer could permissibly seek an employee of a particular national origin where the employee’s job responsibilities would include providing sensitive “know your rights” trainings to recently arrived refugees of that same national origin group who might be more inclined to participate in the training if it were conducted by a member of their national origin group.

While these new regulations are clearly effective as of July 1, they are silent as to retroactivity, despite commentators’ requests for clarification on that issue. In light of these new regulations, employers should review their policies and handbooks to identify any potentially problematic practices. They should also determine, based on their specific needs, whether any additional training is appropriate to ensure that discrimination and harassment based on national origin are sufficiently explained to and understood by managers and supervisors.