National Origin Discrimination Law Defense Lawyer for Employers

We Defend Employers Against Accusations of Nationality Discrimination

Definition. Illegal under both California and federal law, national origin discrimination in the workplace involves unfavorable and unfair treatment of job applicants and employees on the basis of their national origin, ethnicity, accent, or ethnic background.

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On July 1, 2018, California law adopted a broader definition of “national origin,” which now “includes, but is not limited to, the individual’s or ancestors’ actual or perceived:

Physical, cultural, or linguistic characteristics associated with a national origin group;
Marriage to or association with persons of a national origin group;
Tribal affiliation;
Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
Attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
Name that is associated with a national origin group.” (Cal. Code of Regs., tit. 2, § 11027.1, subd. (a).)

Disparate treatment discrimination happens when an employee is specifically targeted or singled out because of their protected characteristic. In these kinds of cases, the employer’s actions must be motivated by discriminatory intent. (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 737.

Laws Protecting Against National Origin Discrimination

The California statute prohibiting discrimination based on national origin is the Fair Employment and Housing Act (“FEHA”). (Gov. Code, § 12940, et seq.)

The federal counterpart to FEHA, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et seq.), also protects against employment discrimination based on national origin.

Because FEHA and Title VII of the Federal Civil Rights Act of 1964 have the same anti-discrimination objectives and public policy purposes, California courts may rely on federal decisions to interpret analogous parts of the state statute. (Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648, 652.)

Example

It is illegal for an employer to fire or refuse to hire someone because of that person’s national origin. Paula, a woman from Ireland with an Irish accent, claims that Dan wrongfully discriminated against her. To establish this claim, Paula must prove:

1. That Dan was a covered employer;
2. That Paula was an employee of Dan;
3. That Dan fired Paula and that Paula’s accent/ethnicity was a substantial motivating reason for Dan’s decision to fire her; and
4. That Paula was harmed and that Dan’s conduct was a substantial factor in causing Paula’s harm.

Element 1: Covered Employer

An employer includes any person or entity regularly employing five or more persons. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 260, quoting Gov. Code, § 12926, subd. (d).)

Covered: Agents of Covered Employers

An agent is a person who represents another person or an entity in dealing with third persons. Under California law, agents of covered employers are also considered employers. (Gov. Code, § 12926, subd. (d).)

To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492.)

Covered: State, Cities, and Political or Civil Divisions

The state, cities, and any political or civil division of the state are covered employers. (Gov. Code, § 12926, subd. (d).)

Covered: Labor Organizations

A labor organization, like an employer, cannot discriminate on the basis of an individual’s religious creed.(Gov. Code, § 12940, subd. (a).)

A “labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, or terms or conditions of employment. (Gov. Code, § 12926, subd. (g).)

Covered: Individual Employees (Coworkers/Supervisors)

An employee of an entity subject to the FEHA is personally liable for any harassment prohibited that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code §, 12940, subd. (j)(3).)

Note: This individual liability was only recently codified by the California Legislature after the California Supreme Court held in Reno v. Baird that individual employees are not liable under FEHA. Today, individual employees can be held liable.

Element 2: Protected Employee

FEHA protects persons of all national origins. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568.) The plaintiff must prove that he or she belongs to a protected class. (Id.)

Protected: Employees

An employee is someone who is both a person who works under the direction and control of the employer, and a person whom the employer has agreed to hire. (Gov. Code, § 12926, subd. (c).) However, the “FEHA does not define an employer, employee, or what constitutes employment.” (Shephard v. Loyola Marymount Univ. (2002) 102. Cal.App.4th 837, 842.)

Covered: Temporary Workers

Temporary workers are considered employees. (Bradley v. California Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612.)

Covered: Job Applicants

California law expressly extends its anti-discrimination protections to applicants for employment positions. Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.)

Covered: Unpaid Interns

Unpaid interns represent one of the few positions in which a worker will have the right to be free from discrimination despite not being an employee. (Gov. Code, § 12940, subds. (c), (j), & (l).)

Not Protected: Volunteers

Volunteers are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625.)

Not Protected: Family Members

Person employed by their parents, spouse, or child are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].)

Not Protected: Independent Contractors

Independent contractors are not protected under FEHA because they do not work under the direct control and supervision of the employer. (Gov. Code, § 12940, subd. (j)(5).)

Element 3: Adverse Employment Action

“Adverse employment action” is a shorthand expression for the kind, nature, or degree of action against an employee that is enough to state a claim. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 373.) Generally, the discrimination must adversely and materially affect the terms, conditions, or privileges of plaintiff’s employment. (Gov. Code, § 12940, subd. (a).)

An adverse employment action is interpreted liberally by the court under a case-by-case analysis, and it must be substantial. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1053-1043.) Additionally. an adverse employment action may consist of a “series of subtle, yet damaging, injuries,” rather than a single actionable event. (Ibid.)

An individual suffers disparate treatment based on national origin when singled out and treated less favorably than others similarly situated on account of national origin. (Loera v. Imperial County Sheriff’s Dep’t (2003) Cal.App.Unpub. LEXIS 11537 (citing Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735).)

In determining disparate treatment, the court will consider the employer’s actions “in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940.)

Examples

Employer Favoring One National Origin Establishes a Prima Facie Case of Discrimination

An employee established a prima facie case against an employer who limited the better jobs with higher pay and company ownership to people of Italian ancestry. (Bonilla v. Oakland Scavenger Co. (9th Cir. 1982) 697 F.2d 1297.)

A Single Derogatory Ethnic Comment Not Enough to Establish Discrimination

One racial comment is insufficient as a matter of law to establish a hostile environment. (Dee v Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30.)

Citizenship Requirements That Have Discriminating Effect Are Unlawful

Citizenship requirements that have the purpose or effect of discriminating on the basis of national origin are unlawful unless pursuant to a permissible defense. (Cal. Code Regs. tit. 2, § 7289.5, subd. (f).)

Plaintiff Must Show He or She Was Subject to an Adverse Employment Decision The plaintiff must show that he or she was subject to an adverse employment decision. Thus, the employee must prove that he or she was adversely affected, even if the plaintiff suffered no monetary damage. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.)

Element 4: Discriminatory Intent

To prevail under a disparate treatment theory of national origin discrimination, a plaintiff must prove that he or she suffered an adverse action because of a protected characteristic. (Mixon v. Fair Employment & Housing Comm’n (1987) 192 Cal.App.3d 1306, 1317.) Because disparate treatment is based on intentional discrimination, a plaintiff must prove the defendant employer harbored discriminatory intent. (Scotch v. Art Inst. of Calif.-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1007) (plaintiff “must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.”)).

Employee’s Burden

In disparate treatment cases, the employee must prove the ultimate fact that the defendant engaged in intentional discrimination. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510.)

After a Prima Facie Case is Established, Burden Shifts to Defendant

Once a prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory business reason for the adverse action. (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32.)

Plaintiff Can Still Rebut to Show Discrimination

If the employer meets its burden of production, the plaintiff may still prevail by showing by a preponderance of evidence that the discriminatory reason more likely than not motivated the employer or that the employer’s proffered reason is a pretext for discrimination and is unworthy of credence. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297.)

 Pretext Can Be Established Using Statistical Evidence

Pretext can be established by using statistical evidence showing bias in a department. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317.)

Plaintiff Can Prove Discrimination by Direct or Circumstantial Evidence

A plaintiff may prove intentional discrimination by using either direct evidence or circumstantial evidence. (DeJung v. Superior Court (2008) 169 Cal.App.4th 533.)

Three-Part Analysis for Cases Based on Circumstantial Evidence (McDonnell Douglas Test)

In most cases, a plaintiff will not have direct evidence of the employer’s discriminatory intent. Consequently, a three-part analysis for cases based on indirect or circumstantial evidence has been established: (1) the complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for its actions; and (3) the complainant must prove that this reason was a pretext to mask an illegal motive. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52.)

 Comments Not Directed at Plaintiff Can Create an Inference of Discriminatory Motive

The comment that an employee was a “dumb Mexican” and that he was hired because he was a minority can create an inference of discriminatory motive even if the comments were not directed at the plaintiff. (Cordova v. State Farm Ins. Co. (9th Cir. 1997) 124 F.3d 1149.)

Examples

Discrimination on the Basis of an Employee’s Foreign Accent

A plaintiff who proves he has been discriminated against solely because of his accent establishes a prima facie case of national origin discrimination. (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549.)

An adverse employment decision may be predicated on an individual’s accent when it interferes materially with his or her job performance. (Fragante v. Honolulu (9th Cir. 1989) 888 F.2d 591.)

Hispanic Police Officer Denied Promotion Seven Times Established Prima Facie Case of Discrimination

A Hispanic police officer, who had been denied promotion seven times, established a prima facie case through evidence that all persons in supervisory ranks at the city police were white males, that relevant personnel at the police department were aware of the officer’s ethnicity, and that the atmosphere was not conducive to inter-ethnic appreciation and respect. Jauregui v. Glendale, (9th Cir. 1988) 852 F.2d 1128.)

 Speaking English-only Rules Do Not Automatically Establish Discrimination

An employee who was fired for failure to abide by an English-only rule failed to establish a prima facie case of discrimination because the rule was based on market considerations (i.e., the radio station dropped its bilingual format because of the show’s market and ratings) and not racial considerations. (Jurado v. Eleven-Fifty Corp. (9th Cir. 1987) 813 F.2d 1406.)

 Complete Ban on Speaking Foreign Language at Work Can Be Discrimination

A rule prohibiting employees from speaking their primary language, or the language they speak most comfortably, at all times in the workplace may be unlawful unless justified by business necessity. (29 C.F.R. §1606.7, subd. (a).)

Filing a National Origin Discrimination Claim

Failure to File a Timely Charge

Failure to file a timely charge with the Department of Fair Employment and Housing (“DFEH”) will bar a claim under FEHA. (Gov. Code, § 12965, subd. (b).)

Simply Filing with EEOC Does Not Show Plaintiff Exhausted Administrative Remedies

Filing with the EEOC does not satisfy the requirement that the plaintiff exhaust administrative remedies and does not enable a plaintiff to file a civil suit under the FEHA. (Blum v. Superior Court (2006) 141 Cal.App.4th 418.)

Must File with DFEH Within One Year from Most Recent Act of Discrimination

Period Can Be Extended 90 Days

This period may be extended for up to 90 days if the plaintiff did not learn of the discrimination within a year of its last occurrence. Gov. Code, § 12940.)

Statutory Clock Begins Running from Time Adverse Action Actually Took Place

The one-year limitations period for filing an administrative charge of discrimination with the DFEH begins to run from the time the adverse action actually takes place, not the earlier date of notification of the adverse action. (Blum v. Superior Court (2006) 141 Cal.App.4th 418.)

The Continuing Violation Doctrine

Employees may assert discrimination claims based on adverse actions outside of the one-year limitations period under the “continuing violation” doctrine. To invoke the doctrine, the employee must show that the adverse action is part of a long-standing practice of discrimination or harassment which continued into the limitations period. (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994.)

Statute of Limitations

A plaintiff must file a discrimination charge with the California Department of Fair Employment and Housing (“DFEH”) within one year from the date of the most recent act of discrimination. (Gov. Code, § 12960.) This period may be extended for up to 90 days if the plaintiff did not learn of the discrimination within a year of its last occurrence. (Id. at § 12940.) The plaintiff then has one year from receiving a notice of the right of civil action from the DFEH (the “right to sue letter”) to file a civil action. (Id. at § 12965, subd.(b).)

Must Include All Claims in a DFEH Charge

Failure to include a claim (such as retaliation) in a DFEH charge bars a claim in civil action. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607.) The employee must specify each separate and distinct act of discrimination (e.g., unlawful demotion and unlawful discharge) in the administrative complaint. (Id.)

REMEDIES

Compensatory Damages

The plaintiff may recover damages if he or she demonstrates that the Defendant engaged in discriminatory practice or discriminatory practices with malice or with reckless indifference. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519.)

Punitive Damages

Where an action is pleaded under the Fair Employment and Housing Act for discrimination, the same opportunity to plead and recover punitive damages exists. (Monge v. Superior Court (1986) 176 Cal.App.3d 503.)

Injunctive Relief

Injunctive relief is an appropriate remedy where a business engages in unlawful discrimination since an employer that so discriminates may have an unfair advantage over one that complies with the FEHA. Injunctive relief can include reinstatement of the wrongfully terminated employee. (Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779.)

Prejudgment Interest

Prejudgment interest accompanies a backpay award in order to make the employee whole. (Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109.)

Attorneys’ Fees and Costs

The court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees. (Gov. Code, § 12965, subd. (b).)

Lost Compensation

Back Pay

Back pay restores a plaintiff in an employment discrimination case to the position he or she would have occupied but for the discrimination. (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139.)

Front Pay

Front pay as the term is used in employment litigation, is a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial. If the judge orders reinstatement of a fired employee, front pay might be awarded to make up a wage differential if there were no vacancy into which the employee could immediately be reinstated or promoted. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.)

AFFIRMATIVE DEFENSES

 Failure to Exhaust Administrative Remedies

The employee must exhaust available administrative remedies by filing a charge of national origin discrimination with the California Department of Fair Employment & Housing (“DFEH”). (Gov. Code, §§ 12960, 12965, subd. (b).)

Bona fide Occupational Qualification

An employer may assert the bona fide occupational qualification (BFOQ) defense to a disparate treatment claim where the employer has a practice that on its face excludes an entire group of individuals because of their protected status. (Gov. Code, § 12940, subd. (a)(1).) This defense is a narrow exception to the general prohibition on discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1984) 187 Cal.App.3d 1, 19.)

Example

Dan claims that his decision to fire Paula was lawful because he was entitled to consider her thick accent as a job requirement. To succeed in his defense, Dan would need to prove: (1) that the job requirement was reasonably necessary for the operation of Dan’s business; (2) that Dan had a reasonable basis for believing that substantially all members of Paula’s national origin group are unable to safely and efficiently perform that job; (3) that it was impossible or highly impractical to consider whether each employee was able to safely and efficiently perform the job; and (4) that it was impossible or highly impractical for Dan to rearrange job responsibilities to avoid using national origin as a job requirement.

Business Necessity

English fluency requirements are not unlawful if they are job-related and satisfy the business necessity test. (Cal. Code Regs. tit. 2, § 7289.5, subd. (d).)

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