National Origin Discrimination

The California workforce is increasingly diverse. Enduring immigration from Asia, Latin America, Africa, and the Caribbean has propelled this trend. Immigrant workers and second- and third-generation descendants of at least one immigrant parent are present in every occupation. The present composition of the workforce better reflects the diversity in our society than at any other time in our history. Unfortunately, in a diverse workplace, discrimination or harassment sometimes arises based on where an individual (or his or her ancestors) came from or because an individual shares the physical, cultural, or linguistic characteristics of a particular national origin group. Conversely, discrimination or harassment in the workplace can also arise because an individual does not belong to a particular ethnic group or does not possess the characteristics associated with a particular national origin group.

Under the FEHA, it is unlawful for an employer to:

• refuse to hire (to screen out individuals based on national origin);
• to discharge, layoff, or to terminate;
• to refuse to select or to bar or discharge an employee from a training program leading to employment; or
• to discriminate against the person in compensation or in terms, conditions, or privileges of employment (including wages, benefits, work assignments, and promotions) because of the employee's national origin. California Government Code section 12940(a).

Under the FEHA, “’National origin’ includes, but is not limited to, the individual's or ancestors' actual or perceived:

1. physical, cultural, or linguistic characteristics associated with a national origin group;
2. marriage to or association with persons of a national origin group;
3. tribal affiliation;
4. membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
5. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
6. name that is associated with a national origin group.

California Code of Regulations, title 2, section 11027.1.

Under the FEHA’s federal counterpart, Title VII of the Civil Rights Act of 1964 (42 United States Code section 2000e, et seq.) (Title VII), national origin is defined as "the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co. (1973) 414 U.S. 86, 88. In addition, according to the Equal Employment Opportunity Commission "National Origin" also includes the birthplace of individuals or their ancestors, as well as display of the physical, cultural, or linguistic characteristics of a particular nationality. 29 Code of Federal Regulations, title 29, sections 1606.1-8.

To be actionable, the discrimination against ancestry or national origin does not necessarily have to be leveled towards a particular country; general ethnic backgrounds such as "Hispanic" or "Latin American" also qualify. Bennun v. Rutgers State Univ. (3^rd Cir. 1991) 941 F.2d 154, 171-72. Thus, there is a significant amount of overlap between race discrimination and discrimination premised on national origin or ancestry.

An employer may not “adopt or enforce a policy that limits or prohibits the use of any language in the workplace, including . . . an English-only rule, unless: (A) The language restriction is justified by business necessity; (B) The language restriction is narrowly tailored; and (C) The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.” California Code of Regulations, title 2, section 11028(a). See also California Government Code section 12951. A blanket rule requiring employees to speak either English or another language at all times is presumptively unlawful under the FEHA and is never lawful during an employee’s non-work time such as rest and meal periods as the employer must relinquish any employer control over the employee and how he or she spends the time. Language restriction policies can create a disparate (exclusionary) effect on national origin groups. Even if a language restriction policy is adopted for a non-discriminatory reason, it may be unlawful if it is implemented in a manner that amounts to an adverse employment action (a suspension, demotion, reprimand, loss of pay, failure or refusal to promote, or other action or failure to act that adversely affects the employee’s rights or interests) or deprives an employee of an employment benefit. Language restriction policies may contribute to a hostile work environment or increase the level of harassment in the workplace by intimating that speakers of a certain language are inferior or less worthy.

“Employment discrimination based on an applicant's or employee's accent is unlawful unless the employer proves that the individual's accent interferes materially with the applicant's or employee's ability to perform the job in question.” California Code of Regulations, title 2, section 11028(b). An accent can suggest that a person grew up in another country or grew up speaking a language other than English. Where evidence in a national origin discrimination case based on accent (which can be inextricably intertwined with national origin) shows the employee was proficient in English and satisfactorily performed his or her job, courts are likely to rule in favor of the employee or ex-employee. Customer or client preferences are not a permissible basis for discrimination based on accent (e.g. an employer cannot replace an employee with an accent with an employee who does not speak using that accent merely because customers have complained that they prefer to speak with customer service representatives they perceive as lacking distinctive accents). In Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1195, the employer impermissibly perceived an accent as an obstacle to fulltime employment as a teacher, given the lack of evidence that the employee’s accent interfered with her earlier employment as a substitute teacher or as a temporary full-time teacher.

“Discrimination based on an applicant's or employee's English proficiency is unlawful unless the English proficiency requirement at issue is justified by business necessity.” California Code of Regulations, title 2, section 11028(c). For many job positions, English proficiency is not necessary (nor is an exam in English necessary) to carry out the required duties. In these situations, English proficiency requirements have been used as a pretext to intentionally discriminate against certain groups.

Any California resident, regardless of immigration status, is eligible for a driver’s license issued under California Vehicle Code section 12801.9.

“’National origin’ discrimination includes, but is not limited to, discrimination on the basis of possessing a driver's license granted under Section 12801.9 of the Vehicle Code.” California Government Code section 12926(v).

“It is unlawful for an employer or other covered entity to discriminate against an applicant or employee because he or she holds or presents a driver's license issued under section 12801.9 of the Vehicle Code.” California Code of Regulations, title 2, section 11028(g).

“It is a violation of the [FEHA] for an employer . . . to discriminate against a person because the person holds or presents a driver’s license issued pursuant to this section, or for an employer . . . to require a person to present a driver’s license, unless possessing a driver’s license is required by law or is required by the employer and the employer’s requirement is otherwise permitted by law.” California Vehicle Code section 12801.9(h)(2)(A).

“Citizenship requirements that are a pretext for discrimination or have the purpose or effect of discriminating against applicants or employees on the basis of national origin or ancestry are unlawful, unless pursuant to a permissible defense.” California Code of Regulations, title 2, section 11028(h).

Height and weight characteristics are associated with particular national origin groups. Height or weight requirements may have the effect of creating a disparate impact on the basis of national origin and have been used as a pretext to discriminate against certain groups comprised of individuals who are perceived as generally being shorter or heavier than individuals in other groups. Where an adverse impact is established, such requirements are unlawful, unless the employer can demonstrate that they are job related and justified by business necessity. “Where such a requirement is job related and justified by business necessity, it is still unlawful if the applicant or employee can prove that the purpose of the requirement can be achieved as effectively through less discriminatory means.” California Code of Regulations, title 2, section 11028(k).

“It is an unlawful employment practice for an employer . . . to seek, request, or refer applicants or employees based on national origin or to assign positions, facilities, or geographical areas of employment based on national origin, unless pursuant to a permissible defense.” California Code of Regulations, title 2, section 11028(l). For example, an employer may not assign Hispanic employees to only lower paying stocking jobs because the employer perceives that its customers prefer to interact with non-Hispanic sales employees.

Dress codes at work may discriminate against a person's ethnic dress and may give rise to both national origin and religious creed discrimination. California Government Code section 12940(l).

To prevail on a claim for discrimination based on national origin or ancestry, the plaintiff needs to prove that he or she:

• belongs to a particular national origin or ancestry,
• 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 not in the protected class (i.e., who did not share the national origin or ancestry in question) were not subjected to the discriminatory actions of the employer. (Ex: others not of the same national origin or ancestry retained similar jobs, and the employee who is bringing the claim lost his or her position to an individual with similar qualifications to the discharged employee but who was not of the same national origin or ancestry). See Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 675-676.

The Equal Employment Opportunity Commission guidelines suggest that those who merely associate with other nationalities or people from other nationalities would also be protected from discrimination.

If you have experienced discrimination at your workplace based on your national origin or ancestry, or based on your employer’s perception of your national origin or ancestry, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.