National Origin Discrimination
California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to refuse to hire; to discharge 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" because of the employee's national origin. Cal. Gov. Code § 12940(a).
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, "National Origin" according to the Equal Employment Opportunity Commission 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 CFR §§1606.1-8.
In order 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. (3rd Cir. 1991) 941 F2d 154, 171-72. Thus, there is a significant amount of overlap between racial discrimination and discrimination premised on national origin or ancestry.
In order to bring a claim for discrimination based on national origin or ancestry, the plaintiff needs to prove that the employee:
- 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, 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.
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.
If you have experienced discrimination at your workplace based on your national origin, ancestry, or others' perception of either, contact the respected national origin discrimination attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.