CalChamber: State Proposed National Origin Regulations Too Broad

The FEHC held a public hearing on its proposed national origin regulations in San Francisco on July 17.
The FEHC held a public hearing on its proposed national origin regulations in San Francisco on July 17.

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 recently.

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:

  • Expanded definition of national origin to include anyoye who is a member of or in association with a group, school, temple or other institutions generally associated with a national group. This broad definition is unsupported by any legal authority.
  • Revision and expansion of rules relating to language restrictions in the workplace, including a presumption that English-only rules violate FEHA. The proposed regulations ignore the fact that the Ninth Circuit has specifically rejected the type of language restriction proposed by the FEHC.
  • 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. These protections already exist in the Labor Code and the Labor Commissioner has the authority to handle retaliation claims with regard to immigration-related 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.

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.

For more information, read CalChamber’s Top Story.

Staff Contact: Jennifer Barrera

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