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California’s FEHC New National Origin Discrimination Regulations: A Precursor of Things to Come in Texas?

California’s Fair Employment and Housing Commission (FEHC) recently published the complete text of its “Regulations Regarding National Origin Discrimination,” clarifying how the term “national origin” is defined for purposes of implementing the Fair Employment and Housing Act (FEHA). In particular, the new regulations prohibit employers from inquiring into a job seeker or employee’s immigration status. An exception has been made, however, for instances where “the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.”

These changes take effect on July 1, 2018.

A “national origin group” is typically defined as a group of people who same the same place of origin, culture, ancestry, or language. The FEHC’s new regulations, however, expand the interpretation of nation origin in implementing the FEHA, adding all conceivable attributes of a national origin group categorized accordingly.

Such attributes now follow the following categories:

  1. Physical, cultural, or linguistic characteristics
  2. Marriage to or association with persons of a national origin group
  3. Tribal affiliation
  4. Membership in or association with an organization identified with or seeking to promote the interests of a national origin group
  5. Attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of national origin groups
  6. Name that is associated with a national origin group

Additional Employer Restrictions

Aside from immigration status inquiries, employer restrictions against height and weight have also been outlawed given that these may entail or result in national origin group discrimination. The FEHC claims that employment restrictions on physical characteristics such as height and weight tend to disproportionately disadvantage certain national origin groups.

While language restriction policies have always been unlawful in California, the new FEHC regulations outline possible justifications for such a policy, specifically targeting “English-only” policies that some workplaces have been known to adopt.

Should an employer insist on these policies, they are now required to make it meet three criteria to prove “business necessity”:

  • The restriction is integral to safe and efficient operations
  • It effectively fulfills the business purpose it is supposed to serve
  • There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

As such, language restrictions established solely for convenience or personal preference are expressly unjust under the new regulations. Employers have been advised to review company policies and employee training materials in light of these changes.

If anything, these policies are a testament of California’s support for immigration rights. In contrast, Texas has some of the country’s most aggressive state laws against immigration. The signing of SB-4 into law, for example, effectively forced law enforcement officials to comply with detainer requests from immigration officials by requiring them to hold undocumented immigrants until they can be processed for immigration.

For more updates on immigration policies, be sure to follow this blog. If you or anyone you know needs assistance on an immigration case, talk to the legal team of the Lyttle Law Firm. Contact our offices to speak with Austin immigration attorney Daniella Lyttle.

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