The Department of Fair Education and Housing, which is charged with the enforcement of California’s primary workplace anti-discrimination law, is rolling out new regulations set to take effect on July 1, 2018. Most significant is the protections afforded to undocumented immigrants, which are part of a broader effort to make California a sanctuary state.
Under the new rules, all of the anti-discrimination protections enforced by the DFEH will explicitly apply to undocumented immigrants. Furthermore, employers are prohibited from discriminating against undocumented immigrants (unless they are required to by federal law).
The rules also address an all-too-common worry among undocumented immigrants—that if they try to enforce their legal rights, they will be deported. The new rules address this concern, which will encourage undocumented immigrants to come forward if they face harassment, discrimination, or retaliation in the workplace. Starting July 1, 2018, an employer will not be able to ask about the employee’s immigration status during a lawsuit except by meeting a high burden of proof that they need that information in order to comply with federal immigration law.
The regulations will also expand protections against national origin discrimination, and will eliminate some loopholes and exceptions. For example, the Department has narrowed the circumstances where employers can prohibit employees from, or require employees to, speak a certain language. Previously, an employer only needed to show that the requirement was “justified by business necessity” and that the employer had notified the employees of the rule and consequences of violating it. Under the new regulations, the employer will also need to show that the language restrictions (or requirements) are “narrowly tailored.” In addition, employers will not be able to discriminate against employees who have an accent, or because their ability to speak, read, or write English is limited, unless they can show “business necessity.” The regulations also narrow the definition of “business necessity”—there must be no other alternative, and the language rule must achieve the goal.
These changes are a welcome and much-needed expansion of the workplace rights of Californians. As workplace discrimination lawyers, working in Oakland, San Anselmo, San Francisco, and elsewhere in the Bay Area, we see the need for better protection of employees at their places of work.
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Headed by renowned trial lawyer Larry Organ, California Civil Rights Law Group (http://www.civilrightsca.com/), is a leading employment law firm with San Francisco Bay Area offices in Oakland, Alameda County and San Anselmo, Marin County, California. Employees experiencing sexual harassment, race harassment, disability discrimination, LGTBQ discrimination, pregnancy discrimination, whistleblower retaliation and/or wrongful termination should reach out for an attorney consultation in either our Oakland/East Bay or San Anselmo/Marin County office.