English-Only Policies in California Are Tough to Justify

California employers need to make sure they're complying with strict new regulations governing English-only policies and national-origin discrimination.

The state Fair Employment and Housing Council's new rules, which took effect in July, prohibit English-only workplace policies unless strict conditions are met. Among other things, the regulations also:

• Prohibit discrimination based on a person's accent, unless the employer can show that the accent materially interferes with the person's ability to do the job.
  
• Ban discrimination based on English proficiency, unless an employer can show that there's a business necessity for an English proficiency requirement.
  
• Prohibit employers from basing hiring decisions on national origin or assigning people to positions or facilities based on national origin, unless they can justify the decision with a valid defense.
  
• Offer protections for undocumented workers by stating that employers that threaten to contact immigration authorities may be engaging in harassment or retaliation.
  
• Broaden the definition of national origin.
  

Employers should update their anti-discrimination and other workplace policies, ensure that any English-only policies adhere to the new regulations, and educate employees and supervisors about the new rules.

Business Necessity

Compared to the previous rules, the new regulations include more restrictions on when English-only policies are allowed. Because of this, there are only very limited situations in which employers can have these policies, attorneys said.

The new rules state that it's unlawful for an employer to have an English-only policy unless:

• It is justified by business necessity.
  
• It is narrowly tailored.
  
• The employer has informed workers about the specific details of its policy.
  

To demonstrate business necessity, the employer must prove that:

• The language requirement is needed to safely and efficiently operate the business.
  
• The language requirement effectively fulfills the purpose it's intended to serve.
  
• There is no alternative practice that would accomplish the purpose equally well with a less discriminatory impact.
  

Additionally, English-only mandates can never be imposed during breaks and other off-duty times. "The new regulations make it clear that customer preference, or ease of communication with the customer, is not a legitimate reason for having an English-only policy," said Sahara Pynes, an attorney with Fox Rothschild in Los Angeles.

So when might an English-only policy be justified? Kelly Scott, an attorney with Ervin Cohen & Jessup in Beverly Hills, said one example might be when workers operate heavy equipment on an assembly line that requires a supervisor's close oversight. The employer might have an English-only rule to ensure that everyone understands what's being communicated so that no one is injured.

Scott noted that companies must show that the English-only policy is necessary for safety and efficiency. "For right now, I think safety is what I would advise employers to focus on," he said.

Above all, companies need to ensure that an English-only policy complies with all the criteria in the regulations. "It really has to be justified under the new rules," said Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento.

Accents

The new rules make it illegal to discriminate based on a person's accent or limited English ability unless there is a valid reason.

State regulators are pushing back against employers' blanket policies on not hiring certain people, Ebbink noted. California's "ban-the-box" law, for example, rejects blanket policies against hiring people with criminal histories.

Employers need to be educated on the topic of accents and hiring. "I see accent and limited English skills frequently considered by employers in ways that now raise concerns for me under the new regulations," said Jeffrey Horton Thomas, an attorney with Akerman in Los Angeles.

He cited the example of a company rejecting someone for a temporary receptionist job just because that person's native language isn't English. An employer might believe that someone isn't qualified to speak with people over the phone simply because that person has an accent or isn't proficient in English, he said.

However, an employer can't decline to hire someone simply because the person has an accent, Ebbink emphasized. "You really have to determine if it interferes with the ability to do the job," he said. The level of English proficiency that the employer requires must be needed to "effectively fulfill the job duties of the position," according to the rules.

Job Segregation

Under the new standards, companies can't seek applicants based on national origin or assign people to positions or facilities based on national origin unless there's a legitimate reason.

As an example, Thomas noted the prevalence of Filipino workers in long-term-care facilities. If an employer has had a great experience with Filipino employees and focuses recruitment efforts in that community, the employer could be discriminating against job seekers who are not of Filipino descent, he said.

Employers should note that the California Fair Employment and Housing Act's (FEHA's) protections and regulations against harassment, discrimination and retaliation apply to undocumented applicants and workers, though the availability of certain types of remedies may be limited.

[SHRM members-only HR Q&A: What is FEHA and what does it cover?]

In addition, an employer can't discriminate against people because of immigration status, unless the company shows that its adverse action is required by federal law.

Definition

The new rules state that the definition of national origin includes:

• Having a name that is associated with a national-origin group.
  
• Having physical, cultural or linguistic characteristics associated with a national-origin group.
  
• Being associated with people of a national-origin group.
  
• Tribal affiliation.
  
• Being associated with an organization that is connected to a national-origin group.
  
• Participating with religious institutions that are typically associated with a national-origin group.
  

The associations with national-origin groups may be actual or perceived. 

Toni Vranjes is a freelance business writer in San Pedro, Calif.