172 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com FEHC regulations permit language restriction policies—including English-only policies—only under the very narrow circumstances already set forth in the FEHA: the language restriction must be justified by “business necessity,” the language restriction must be narrowly tailored, and the employer must have told employees about how and when the language restriction applies and what happens to employees who violate it. The regulations define “business necessity” narrowly as a situation where the restriction is necessary to the safe and efficient operation of the business, the restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. The regulations state that a language restriction is not justified simply because the restriction promotes business convenience or reflects customer or co-worker preference. In any event, English-only restrictions cannot apply to non-work time (such as breaks, lunch, unpaid employersponsored events). Discrimination against an employee’s accent may also be national origin discrimination, unless the accent interferes materially with the ability to perform the job in question. Requiring English proficiency may also be discriminatory, absent “business necessity.” The regulations allow employers to ask applicants or employees about their ability to speak, read, write, or understand any language (including non-English languages), but inquiries must be justified by a business necessity.212 The regulations also clarify that the FEHA forbids height and weight requirements that create a disparate impact on the basis of national origin, unless, of course, the requirements are job-related and advance a business necessity.213 Even then, the challenged requirement could be unlawful if the requirement’s purpose could be more effectively achieved with less discriminatory measures. It is also unlawful for employers to seek, request, or refer applicants or employees based on national origin to assigned positions, facilities, or geographical areas of employment, unless the employers have a “permissible defense” such as job relatedness or a bona fide occupational qualification.214 The regulations apply to undocumented applicants and employees just as they would with any other applicant. Any inquiry into an applicant or employee’s immigration status is unlawful unless there is clear and convincing evidence that the inquiry was needed to comply with federal immigration law.215 The use of derogatory language or slurs based on national origin, and threatening to contact the immigration authorities about an individual’s immigration status, also remain unlawful.216 6.6.2 Protections for specially licensed individuals The prohibition against discrimination because of “national origin” also prohibits discrimination against an individual for possessing a special California driver’s license for those individuals who can prove identity and residency and other qualifications for a driver’s license but who “is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law.”217 This provision allows those who are not legally in the country to obtain a driver’s license if they can provide valid proof of identity and California residency. And, in the same vein, employers must not require applicants or employees to present a driver’s license, unless the law requires the license or permits the employer’s requirement. Further, failing to apply the requirement uniformly or for a legitimate business purpose may amount to discrimination because of national origin. But any action an employer takes to comply with any federal requirement or prohibition would not be a violation.218 And the U.S. Constitution preempts state laws that directly conflict with federal law,219 so that it could be difficult to predict whether a court would find a violation where an employer has discriminated against a special licensed immigrant who is not authorized to work in the United States.
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