Definition of “National Origin”

“National origin” had been interpreted to mean the country that the applicant, employee or their ancestors came from. Now, national origin includes, but is not limited to, an individual’s or the individual’s ancestors’ actual or perceived:1

• 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.

“National origin groups” is defined as including, but not limited to, ethnic groups, geographic places of origin and countries not currently in existence.2

• It’s important to understand the scope of “national origin” under FEHA. It is very broadly defined and includes not just an individual’s national origin, but that of the person’s spouse or those with whom the individual is associated.

According to the EEOC guidance, national origin discrimination means treating an applicant or employee differently because they (or their ancestors):

• Are from a certain “place of origin,” which includes a country (such as the United States or Mexico), a former country (such as Yugoslavia) or a place that is closely associated with an ethnic group but is not a country (such as Kurdistan); or
• Have physical, cultural or linguistic characteristics of a particular national origin group. The EEOC defines a “national origin group” as a group of people sharing a common language, culture or race, such as Hispanics/Latinos or Arabs.

Employers also may not discriminate based on a perception or assumption about an individual’s national origin or ethnicity. For instance, treating an employee less favorably because you think he is Hispanic/Latino is national origin discrimination, even if the employee is not, in fact, Hispanic/Latino.

Unlawful Employment Practices

As the EEOC notes in its guidance, national origin discrimination can take many forms. Some of the more common discrimination claims involve ethnic slurs or other offensive conduct, denial of job offers or promotions, unequal pay and more severe treatment in discipline and termination.

Discrimination claims also may be triggered by certain employer policies or practices, including language restrictions and targeted recruitment practices. The FEHA regulations provide examples of several employment practices that may constitute national origin discrimination.

• Customer preference is not a valid justification for a discriminatory practice. For example, the EEOC notes that an employment decision based on the discriminatory preferences of others is itself discriminatory. A specific “corporate look” or “image” policy — such as wanting an “All-American look” — may, in fact, cater to discriminatory customer preferences or prejudices. Such a policy would not justify hiring, assignment or promotion decisions that treat individuals in a disparate manner based on their national origin.

• Effective October 1, 2025, FEHA regulations state that the national origin discrimination prohibitions discussed below related to language restrictions, accents, language proficiency requirements, height and/or weight requirements, driver's licenses and unlawful immigration practices also apply where the discrimination is based on the employer's use of an automated decision system or selection criteria, including a qualification standard, employment test or proxy (a characteristic or category closely correlated with a FEHA-protected characteristic).3 This may include, for example, using such tools for computer based assessments or tests, screening resumes, directing job advertisements or analyzing employee and applicant data.

For more information, see Automated Decision Systems and Artificial Intelligence in FEHA - California's Fair Employment and Housing Act.

Language Restriction Policies

All language restriction policies — which can include English-only policies — are unlawful unless an employer can prove that:4

• The language restriction is justified by business necessity;
• The language restriction is narrowly tailored; and
• The employer has effectively notified employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the restriction.

“Business necessity” means an overriding legitimate business purpose, such that:5

• The language restriction is necessary to the safe and efficient operation of the business;
• The language restriction effectively fulfills the business purpose it is supposed to serve; and
• There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

A language restriction that “merely promotes business convenience or is due to customer or co-worker preference” won’t meet the business necessity requirement.

In addition, you can never require English-only policies during employees’ non-work time, such as meal and rest breaks, and unpaid employer-sponsored events.

• If you have a language restriction policy, such as an English-only policy, consult with legal counsel to ensure it complies with these requirements.

Accents

National origin discrimination can also occur when employment decisions are based on an individual’s accent. You can’t make employment decisions based on an applicant’s or employee’s accent unless you can prove that the person’s accent interferes materially with their ability to perform the job.6

Under federal law, an employer cannot deny a person an employment opportunity because that person’s foreign accent makes them unable to communicate well in English, unless you show that the ability to communicate effectively in English is necessary to the job and a bona fide occupational qualification (BFOQ).7 See“Bona Fide Occupational Qualification (BFOQ) as a Discrimination Defense” in Defense Against a Claim of Discrimination for more information on BFOQs. EEOC guidelines generally prohibit English-only policies. For more information, visit the EEOC website.

English Proficiency Requirements

You can’t discriminate against an applicant or employee because of the person’s English proficiency unless the English proficiency requirement is justified by business necessity.

When determining whether an English proficiency requirement is justified by business necessity, you should consider factors such as:8

• The type of proficiency required (e.g. spoken, written, aural and/or reading comprehension);
• The degree of proficiency required; and
• The nature and job duties of the position.

You may ask an applicant or employee about their ability to speak, read, write or understand any language, including languages other than English, if doing so is justified by business necessity.9

Height and Weight Requirements

Employers using height and weight requirements for employment should be aware of the potential for national origin discrimination. If a height and/or weight restriction precludes an individual of a certain national origin from being considered for a position, the requirement will be unlawful unless you can show that the requirement is job related and consistent with business necessity.10

However, even if a height or weight requirement is job related and consistent with business necessity, that requirement will be considered unlawful if the applicant or employee can prove that you could meet the requirement’s purpose as effectively through less discriminatory means.11

For more information, see Height and Weight Standard.

Recruitment and Job Segregation

Employers are prohibited from seeking, requesting, or referring applicants or employees on the basis of national origin. Employers are also prohibited from assigning positions, facilities or geographical areas of employment based on national origin, unless done pursuant to a permissible defense (see Defense Against a Claim of Discrimination).12

• Consider using a variety of recruitment methods to ensure you aren’t excluding any potential applicants on the basis of national origin.

Human Trafficking

Using force, fraud or coercion to compel employment or to subject an applicant or employee to adverse treatment on the basis of national origin is a violation of FEHA.13 For more information about Human Trafficking laws, see California Laws Prohibiting Human Trafficking.

Harassment and Retaliation Based on National Origin

It is unlawful for an employer to harass an applicant or employee because of national origin. Harassment can take many forms, including epithets, derogatory comments, slurs or non-verbal conduct based on national origin, as well as threats of deportation, derogatory comments about immigration status, or mocking an individual’s accent or language.14

• You should promptly respond to complaints about national origin harassment, as harassment based on actual or perceived national origin is prohibited.

An employer’s failure to take reasonable steps to prevent harassment based on national origin is also unlawful.

For example, a California court of appeal ruled that an employee may pursue his lawsuit for national origin harassment and discrimination, based on comments made by co-workers following a terrorist attack overseas.15

The employee, a Muslim born in Pakistan, faced such remarks such as, “Pakistan is a messed up country,” and “Pakistan and Afghanistan need to be bombed.” One co-worker allegedly said to the employee, “You’re not going to blow me up, right?” The appellate court ruled that a reasonable jury could find harassment, and that the case should proceed to trial to permit that determination.

It is also an unlawful employment practice for employers to retaliate against employees who have opposed discrimination or harassment based on national origin, participated in the filing of a complaint, or testified, assisted or participated in a proceeding alleging national origin discrimination. The FEHA regulations give examples of unlawful retaliation, including:16

• Threatening to contact or contacting immigration authorities or law enforcement about the immigration status of an applicant, employee or family member of an applicant or employee; and
• Taking adverse action against an employee who updates or attempts to update the employee’s personal information based on a change of name, social security number or government-issued employment document.

Driver’s License Issues

It is unlawful to discriminate against an applicant or employee because they hold a driver’s license granted under section 12801.9 of the Vehicle Code, which allows for driver’s licenses to be issued to undocumented persons that can provide proof of identity and California residency.17

For more information, see Immigrant Workers and Discrimination/Retaliation Protection.

It is also a violation of FEHA for an employer to require a person to present a driver’s license, unless possessing a driver’s license is:18

• Required by law; or
• Required by the employer and the employer’s requirement is otherwise permitted by law.

In addition, a policy that requires applicants or employees to hold or present a driver’s license may be discriminatory if the policy is not uniformly applied or is inconsistent with legitimate business reasons. For example, the requirement to hold a driver’s license is not needed to perform an essential function of the job.19

California law also prohibits employers from listing a driver’s license as a preferred qualification for job candidates unless certain conditions are met. Specifically, the law prohibits employers from including a statement in a job advertisement, posting, application, or other materials that an applicant must have a driver’s license, unless the employer both:

• Reasonably excepts driving to be one of the job functions for the position; and
• Reasonably believes that using an alternative form of transportation would not be comparable in travel time or cost to the employer.20

The law provides examples of alternative forms of transportation, including using ride hail services, taxis, carpooling, bicycles or walking. Under this new law, even if driving is a job function for the position, employers must consider whether these alternative forms of travel would be sufficient to perform the job duties and may require a driver’s license only if they conclude that the alternative means of transportation would take too much time or be too costly to the employer.

Unlawful Immigration Practices

The FEHA prohibits employers from asking about an applicant’s or employee’s immigration status, or discriminating against an applicant or employee based on immigration status, unless the employer can show by clear and convincing evidence that the employer was doing so to comply with federal immigration law.

It is also unlawful to use citizenship requirements that discriminate against applicants or employees on the basis of national origin — or are a pretext for discrimination — unless the requirement is pursuant to a permissible defense.21 For more information on defenses, see Defense Against a Claim of Discrimination.

These protections are in addition to existing state and federal laws barring unlawful immigration-related practices. For more information, see Immigrant Workers and Discrimination/Retaliation Protection.

1. 2 CCR sec. 11027.1(a)