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California Expands Protections Based on Employees' National Origin

California has finalized a new rule expanding national origin discrimination protections under the state Fair Employment and Housing Act (FEHA). This new rule takes effect on July 1, 2018.

Under FEHA, employers with five or more employees are prohibited from discriminating on the basis of national origin, among other protected classifications.

The new rule revises the meaning of "national origin" to include an individual's or ancestors' actual or perceived (1) physical, cultural, or linguistic characteristics associated with a national origin group; (2) marriage to persons of a national origin group; (3) tribal affiliation; (4) membership in an organization identified with or seeking to promote the interests of a national origin group; (5) attendance in schools or religious institutions typically used by persons of a national origin group; and (6) name associated with a national origin group.

The regulations also create additional protections for discrimination based on national origin. Specifically, the rule prohibits creating language restrictions, such as an English-only rule, unless the restriction results from business necessity, is narrowly tailored, and employees are notified of the details of the restriction.

Similarly, employers cannot discriminate against an employee for an accent associated with a national origin group, or based on the employee's English proficiency, unless English proficiency is justified by business necessity.

An employer may not inquire or attempt to discover an applicant's or employee's immigration status, unless necessary to comply with federal law. Harassment based on the individual's immigration status is also prohibited.

Employers cannot place employees in certain geographical areas, facilities, or positions based on national origin, or impose height or weight requirements that may have a disparate impact on the basis of national origin. Finally, employers may not retaliate against any employee for opposing discrimination on the basis of national origin, including by filing a complaint.

Source: Littler, https://www.littler.com/publication-press/publication/july-new-january-salary-history-data-security-breaches-new-state-and, June 12, 2018.

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