Immigration Status Discrimination
Employers may not discriminate against employees on the basis of their immigration statuses: "All protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or have been employed in this state." Lab.C. §1171.5(a).
The statute accordingly leaves "no room for doubt about this state's public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights and employee housing laws." Hernandez v. Paicius, (2003) 109 C4th 452, 460 (emphasis added). Despite that most immigrants are not native citizens of the United States of America, the Constitution itself entitles them to many of the same rights as American citizens, and the labor laws of the country and of California reflect that.
In order to bring a claim for discrimination based on an employee's immigration status, the plaintiff needs to prove that:
- the employee is a an immigrant from another country
- that the employee's job performance was satisfactory, or that the employee was qualified for the job which they were not hired for,
- that the employee was subjected to discriminatory conduct, (Ex: being discharged from work)
- and that other employees who were not immigrants were not subjected to the discriminatory actions of the employer.
FEHA proscribes two types of discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her immigration status (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on immigrant employees (referred to as disparate impact discrimination). Knight v. Hayward Unified School Dist., (2005) 132 Cal.App.4th 121, 128-29 (discussing disability discrimination).
Aside from obvious cases where an employer outright explains to an immigrant employee that he is firing her due to her immigration status, wrongful terminations may also be inferred from the circumstances surrounding a discharge. For instance, if an employer terminates an immigrant employee solely because she was unable to read English phrases at a fast enough rate, he would have terminated her for an issue directly related to her citizenship or immigration status. At the same time, however, in order to be successful on the claim the employee would probably have to show either that reading English at a particular rate was not a skill central to the performance of the job for which she was hired or that she would have been able to read at the required rate given enough training.
Examples of possible claims of discrimination based on national origin or ancestry, include:
- English only policies at work,
- An employer requiring employees to speak English while at the workplace was discriminating against non-English speakers and was prohibiting them from speaking on the job whatsoever. Garcia v. Spun Steak Co. (9th Cir. 1993) 998 F2d 1480, 1488.
- Although, rules against the use of foreign languages at the workplace may be upheld if there is a legitimate business necessity and the employees have notice. Cal. Gov. Code §12951(a).
- Discrimination based on a person's accent,
- Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F3d 1185, 1195.
- Dress codes at work that discriminate against a person's ethnic dress.
- Et cetera. These examples are not exclusive.
If you have experienced discrimination at your workplace based on your immigration status, contact the leading immigrant discrimination attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.