Workplace discrimination is an enormous issue, both in California and throughout the United States. Despite the establishment of federal, state, and local entities like the Equal Employment Opportunity Commission (EEOC), the California Equal Employment Rights and Resolution Office (EER&R), and Orange County equal rights groups to investigate these matters, some individuals continue to believe their biases supersede employee rights.
In fact, in the most recently completed fiscal year, the federal EEOC alone investigated 72,675 allegations of workplace discrimination. Of these, over half related to retaliation, while another substantial portion resulted from race, sex, age, or national origin – or a combination of these factors. Employment or workplace discrimination due to any of the above-listed factors is illegal according to federal, state, and local law.
If you believe you were or are now subject to discrimination due to your national origin, it is essential to seek assistance from an Orange County national origin discrimination attorney. In the meantime, this guide to national origin discrimination can help you learn more about national origin, determine whether you truly experienced discrimination, discover the necessary steps to prove national origin discrimination, and learn what to expect from pursuing workplace litigation. Then, contact the skilled attorneys at California Employment Counsel for a free consultation to discuss the details of your case.
What Is Discrimination?
In general, to discriminate against someone means to treat them unfairly or differently from others. While discrimination can – and does – occur in a variety of places, including school, within your private relationships, or in a public place like a retail store or physician’s office, the California Employment Counsel focuses specifically on workplace and employment discrimination. Workplace and employment discrimination can take place at the hands of fellow employees at your level, managers, supervisors, hiring managers, HR professionals, and others – even those within the C-suite (corporate) levels. In fact, workplace and employment discrimination often becomes more severe and more damaging to employees or applicants as it occurs within those in the upper echelons of a company by those making hiring, wage, and other decisions.
As it pertains to the workplace, discrimination can occur in multiple forms. Workers and applicants are entitled to legal protection under federal, state, and local laws that prohibit discriminatory practices based on race, color, national origin, sex, genetic information, religion, age (if over 40), or disability. Workplace and employment violations can include:
- Unfair or unethical treatment due to any of the listed factors
- Harassing behavior by a supervisor, manager, or fellow employee due to these factors
- Denial of a reasonable request for a change within your workplace due to your religious beliefs or a disability
- Forced disclosure or improper questioning regarding the above factors
- Unfair hiring practices resulting from the above factors
- Retaliation by employees or superiors after reporting any discriminatory behavior
What Are Protected Classes?
“Protected classes” have historically been subject to discrimination by employers, government entities, and even federal, state, and local laws. As a result, the federal government enacted a series of civil rights laws, mostly under Title VII of the Civil Rights Act of 1964, to provide protections for nine protected classes:
- Race (including color, protected by the Civil Rights Act of 1964)
- National Origin (CRA of 1964)
- Religion (CRA of 1964)
- Sex (including sexual orientation and gender identity under the CRA of 1964 and pregnancy under the Pregnancy Discrimination Act)
- Age (for those 40 and over under the Age Discrimination in Employment Act of 1967)
- Disability Status (Americans with Disabilities Act)
- Military or Veteran Status (Uniformed Service Employment and Reemployment Act)
- Familial/Children Status (CRA of 1968)
- Genetic Information (Genetic Information Nondiscrimination Act)
The state of California has further defined other protected classes not discussed in federal regulations and has added to existing federally protected classes. For example, California includes gender expression along with sexual orientation and gender identity and has chosen to specify that cancer and HIV/AIDS qualify as disabling conditions. Most relevant here is California’s choice to extend additional protections regarding national origin discrimination.
What Is National Origin Discrimination?
As it pertains to hiring and employment, national origin discrimination generally refers to any unfair treatment of applicants or employees because they are (or appear to be) from a particular region of the globe. In most cases, national origin discrimination in the workplace occurs when a hiring manager, supervisor, or fellow employee treats an individual unfairly because they believe they are born in or have ancestors from another country or display cultural or language-based characteristics due to their origin.
In some cases, discrimination occurs when the employer or supervisor mistakenly believes the employee to be of a certain national origin or illegal immigration status. For example, if the employee looks to be of a certain national origin but is not, unequal treatment is national origin discrimination under the law. Similarly, if the employee associates with/is married to an individual of a certain national origin but is not of that national origin themselves and experiences workplace discrimination, the discriminating party has violated the law.
What Are Some Common National Origin Discrimination Complaints?
As with any other protected class, employees subject to discrimination due to their national origin can experience several distinct types of unfair treatment regarding employment and the workplace. National origin discrimination can occur while potential employers are making hiring decisions or within the workplace itself. It is important to note that, while national origin discrimination is potentially the most financially damaging when it occurs at the hands of hiring managers and supervisors, it can also result from interactions with coworkers, contractors, and even clients.
Common forms of national origin discrimination include:
- National origin harassment. National origin is like other protected classes in that it is unlawful for anyone in the workplace to harass anyone else due to their country of origin or inaccurate perception of their country of origin. While teasing or the occasional comment is, of course, reprehensible, the law reserves consequences for harassment claims. As such, remarks become harassment when they occur frequently and give rise to a hostile workplace environment.
- National origin-related employment decisions. Hiring managers, supervisors, HR employees, and other workplace officials cannot make discriminatory decisions that unfairly affect individuals due to their country of origin. Hiring decisions, termination or layoff decisions, pay reductions, adverse job assignments, promotion decisions, training prohibitions, benefits offerings, and any other employment decisions cannot result from discriminatory practices.
- National origin-related workplace policies. Employers may not create workplace-wide rules deemed unnecessary to conduct business and that unfairly cause a negative impact on a particular national origin group – even if the policies apply to all workers. This rule applies to employment policies, as well. For example, an employer cannot require all employees to speak in fluent English while on the job unless English-only or English fluency is essential to safely achieve the activities of daily business. Similarly, hiring managers cannot discount a potential employee for being bilingual or speaking with an accent unless they can prove the accent would prohibit the employee from safely and efficiently conducting the duties of their job.Employers must show the rule is essential to the efficient or safe operation of their business and must enforce it consistently. For example, an English language rule must apply to all employees regardless of national origin. A similar rule cannot apply to employees while not conducting duties related to their job, such as when they are on break or speaking with another employee or customer in the other language. In general, language rules must only apply to job-related activities and must be limited and specific regarding their terms.
- National origin-related citizenship discrimination. While Title VII of the Civil Rights Act of 1964 does not mention immigration status, both California state law and the federal Immigration Reform and Control Act of 1986 address the issue. The law stipulates that employers may not discriminate against employees regarding actual or perceived immigration and citizenship status. Employers may not make a private workplace policy to hire only U.S. citizens (or only those easily perceived to be U.S. citizens) unless another law or regulation dictates the same.Employers may request documentation that verifies the prospective employee is eligible for employment, usually a federal form I-9. However, the employer cannot refuse to believe the information contained on the form or ask for additional information. In addition, it is illegal to further discriminate against the employee in the ways listed above due to the national origin information contained on the verification form.
- Retaliation against reporting. If an employee or prospective employee reports any of the above forms of national origin discrimination, the employer may not engage in adverse employment decisions in retaliation for the report. For example, an employer cannot dock pay, issue a demotion, or fire an employee because they made a national origin discrimination or harassment report. Similarly, employers cannot retaliate against an employee for assisting another employee with a national origin discrimination or harassment report.
How Do You Prove You Have Experienced National Origin Discrimination?
If you believe you experienced one of the above forms of discrimination due to your national origin, you must provide sufficient evidence to establish a prima facie discrimination case. It is important to understand that the Latin term prima facie directly translates to “first face” and roughly translates to “at first glance.” Thus, a prima facie discrimination case is a case with enough supporting evidence that a judge or jury could determine that discrimination occurred.
Without prima facie evidence, a court may refuse to hear your case or can drop your case at the request of your employer. However, if you provide sufficient evidence discrimination existed, your employer will bear the burden of proof required to show that their employment decision or workplace action was not discriminatory.
Four Elements of a National Origin Discrimination Case
In California, as in other states, employment courts have established four essential elements of a prima facie national origin discrimination case. These elements are the same for all employment discrimination cases, no matter which protected class resulted in the discrimination (i.e., race, religion, sex, et cetera). In fact, many workplace discrimination cases include discrimination regarding multiple protected classes, and national origin discrimination cases often involve race and religious discrimination as well.
The four elements of any prima facie national origin discrimination case are:
- You are in a protected class according to federal or state law. In this case, you must show you are in a protected class based on your national origin.
- You are qualified for the position. If you believe the employer unfairly discriminated against you during the hiring process, you must show that you met each of the listed job requirements. If currently employed, you must show that you perform your job well or according to a supervisor’s expectations.
- You suffered an adverse employment decision. You must show that you were not selected for a position you had applied for. Or, you must show that you were demoted, not selected for promotion, suffered a reduction in pay, or were terminated.
- Any employee chosen for a positive employment decision was not in the protected class and had lesser qualifications. You must show that the individual chosen for the position, promotion, or raise was not in a protected class and was also not as qualified as you or that the company continued to seek other candidates.
National Origin Discrimination Court Proceedings
If the court believes you have sufficient evidence to proceed with a prima facie discrimination case, the burden then falls on the employer to prove their actions were not discriminatory. The employer must provide evidence their motive for hiring someone else, promoting someone else, or taking an adverse employment action against you was legitimate and not discriminatory. For example, the employer could assert that you were not hired because another candidate was more qualified or was within a different protected class.
Then, you will again need to show evidence that the employer discriminated against you – particularly that their stated motives were simply a front for discriminatory actions. Often, your proof during this stage is indirect evidence. For example, you may need to show evidence that you do, in fact, possess higher qualifications than the individual hired. You may need to prove other people who are not in your protected class did not suffer the same adverse employment actions you did – perhaps the employer did not punish other employees for committing the same infractions or falsified your employment record in an attempt to claim you were not a qualified employee.
In a case supported by indirect evidence, the burden of proving workplace discrimination falls upon the employee – you must provide enough indirect evidence to convince a judge or jury the employer’s motives were discriminatory. Meanwhile, the employer simply needs to provide minimal evidence they had a legitimate motive to make their decision. However, if you possess direct evidence the employer was willing to discriminate against you due to your national origin, the burden falls back on the employer. For example, if you can show an employer referred to you by an ethnic slur during a hiring decision, regularly participated in workplace harassment, or made policies deemed unfair to those with your national origin, the employer must prove their actions do not constitute a predisposition to discriminate against your national origin.
How Should You Begin Your National Origin Discrimination Case?
If you believe you are experiencing employment or workplace discrimination due to national origin, keep a record of all pertinent employer actions. Once your case begins, you will have solid examples of the behavior you claim resulted in discrimination. Then, file a claim through the company’s internal complaint system, which serves to notify the company harassment or discrimination has occurred and assigns them liability to address it. If the company refuses to address the discrimination or remedy the issue, it may incur punitive damages for ignoring discriminatory behavior.
Then, you must file an administrative complaint with either the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the incident. Filing a claim with both agencies is unnecessary, though individuals dealing with companies with less than 14 employees must file through the DFEH. The agency may investigate to administratively determine prima facie evidence or request mediation to allow you and the employer to settle the dispute. After processing, the agency will eventually either dismiss your case or issue you a right to sue notification. You must complete this step before proceeding with litigation and may only proceed with litigation within 90 days of receipt of your right to sue letter.
Seek the Services of a Skilled Orange County National Origin Discrimination Attorney
As you can see, the procedures necessary to file a successful national origin discrimination case can quickly become complicated. In addition, you must file all complaints within the statutes of limitation, or your case will be invalid. An experienced Costa Mesa national origin discrimination lawyer can ensure you preserve your legal rights and help you gather evidence to support your prima facie discrimination case.
Your employment discrimination attorney will help you identify the potential damages you may seek as the result of the national origin discrimination you endured, including damages related to back wages, emotional distress, or even punitive damages against your employer. For more information about national origin discrimination cases or to request insight regarding your unique case, contact California Employment Counsel, APC to request a free consultation.