172 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com a single incident of harassing conduct is sufficient to create a triable issue of hostile work environment if the conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment and the Ninth Circuit’s opinion in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) must not be used to determine what conduct is sufficiently severe or pervasive under FEHA;199 hostile work environments depend on the totality of circumstances and so—consistent with Reid v. Google, Inc., 50 Cal. 4th 512 (2010) (rejecting “stray remarks” doctrine)—discriminatory remarks may be relevant “even if not made directly in the context of an employment decision or uttered by a nondecisonmaker”; liability for harassment should not vary by the type of workplace, notwithstanding any “language, reasoning, or holding to the contrary” in Kelley v. Conco Cos., 196 Cal. App. 4th 191 (2011), and courts should consider the nature of the workplace only when “engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties”; and harassment cases “are rarely appropriate for disposition on summary judgment” and the Legislature approves the decision in Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243 (2009) (an anti-summary judgment screed) and its observation that hostile working environment cases involve issues “not determinable on paper.” 6.6 Special Rules Relating to National Origin FEHC regulations have clarified prohibitions against discrimination and harassment based on national origin.200 The regulations define national origin broadly, to include not just the national origin of an individual but also the national origin of the individual’s spouse or of those with whom the individual associates, as well as a person’s perceived national origin. The expansive definition also includes an individual’s or ancestor’s (actual or perceived) physical, cultural, or linguistic characteristics associated with a national origin group, marriage to or association with a person of a national origin group, tribal affiliation, membership in or association with an organization identified with or seeking to promote the interest 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 associated with a national origin group.201 Lest anyone doubt the expansive scope of this definition, the regulations emphasize that “national origin groups include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.”202 The regulations prohibit employers from having policies that limit or prohibit the use of any language in the workplace—including an English-only rule—unless certain criteria are met.203 The regulations also prohibit discrimination based on English proficiency and accents,204 prohibit employers from inquiring into the immigration status of employees or applicants unless the inquiry is necessary to comply with federal law,205 prohibit height and weight requirements,206 and prohibit segregation or recruitment applicants based on national origin.207 6.6.1 English-only work rules In America generally, employers may require that employees speak only English in the workplace, unless that requirement discriminates on the basis of national origin by having an unjustified adverse impact. In California it’s different. The FEHA, without requiring any proof of an adverse impact, makes it an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace unless the employer notifies employees of the policy and justifies it by showing a “business necessity.” “Business necessity”
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