National Origin Harassment
Under FEHA, it is unlawful to harass an employee for his or her national heritage or ancestry. Cal. Gov. Code § 12940(j).
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, their family, 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, harassment based on ancestry or national origin does not necessarily have to be leveled at one's heritage from 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 harassment due to race and harassment premised on national origin or ancestry.
In order to bring a claim for harassment centered around one's national origin or ancestry, the plaintiff needs to prove that the employee:
- Was a member of [a particular ethnicity or ancestry],
- Was subjected to unwelcome ethnic harassment,
- The harassment was based on national origin or ancestry,
- The harassment unreasonably interfered with his or her work performance by creating an intimidating, hostile, or offensive work environment, and
- The [employer or entity] was liable for the harassment." Thompson v. City of Monrovia, (2010) 186 C4th 860, 876 (discussing racial harassment).
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. This may also apply to harassment.
Examples of possible claims of discrimination that may lead to wrongful termination based on national origin or ancestry could include non-verbal or non-physical slurs. For instance, fellow employees speaking quickly or bewildering an employee new to the English language intentionally such that it distressed the employee or created a hostile work environment may be enough to suggest the other employees were harassing the plaintiff. Each situation is going to be heavily determined by the facts and nature of the harassment.
In fact, harassment due to an employee's national origin is normally a separate cause of action from discrimination due to an employee's national origin. However, harassment is additionally actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, (2001) 532 US 268, 270. Thus, pervasive harassment about one's ancestry or national origin may be enough for two separate claims, depending on the situation.Contact Us
If you have been harassed at your workplace based on your national origin, ancestry, or others' perception of either, contact the respected national origin harassment attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.