Effective July 1, the new regulation expands the definition of this protected category to include the following:
Physical, cultural, or linguistic characteristics associated with a national origin group;
Marriage to or association with persons of a national origin group;
Tribal affiliation;
Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
Attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
Name that is associated with a national origin group.
The regulations also clarify that “national origin group” includes any ethnic groups, geographic places of origin, and countries that are not presently in existence. This may include micro-nations, which claim to be independent nations, or states that are not recognized in the international community.
In addition, the new regulations address language restriction policies, including “English-only” policies. Language restriction policies in California are allowed only under very narrow circumstances: when (1) the language restriction is justified as a “business necessity,” (2) the language restriction is narrowly tailored, and (3) the employer has told employees about how and when the language restriction applies and what happens to employees who violate it.
The regulations define “business necessity” very narrowly, making it difficult for a California employer to justify a language restriction. An employer must establish that the policy (1) is necessary for the safe and efficient operation of the business, (2) effectively fulfills the business purpose it is supposed to serve, and (3) has no alternative that could serve the same business purpose. In addition, a language restriction policy cannot be enacted for business convenience or based on the preferences of customers or co-workers. It also cannot apply during employees’ non-working time, including lunch breaks, rest periods, and unpaid employer-sponsored events.
Have your outside general counsel review your current version of handbook and hiring policies.
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